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The William Barr Case for Impeaching Donald Trump: From Whom Did Trump Suborn False Statements?

Last month, I argued that a memo William Barr wrote that many say disqualifies him to be Attorney General in fact (or perhaps, “also”) should make him utterly toxic to Trump, because he (unknowingly) makes the case for impeaching Trump.

That’s because of the specific content of a William Barr memo sent to Rod Rosenstein, first reported by WSJ last night. While I’m certain Barr didn’t intend to do so, the memo makes a compelling case that Trump must be impeached.

The memo is long, lacks pagination, and presents an alarming view of unitary executive power. Barr also adopts the logically and ethically problematic stance of assuming, in a memo that states, “I realize I am in the dark about many facts” in the second sentence, that he knows what Mueller is up to, repeating over and over claims about what theory of obstruction he knows Mueller is pursuing.

Yet even before Barr finishes the first page, he states something that poses serious problems for the White House.

Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.

Probably by the time Mueller’s office captured Peter Strzok’s testimony on July 19, 2017 — and almost certainly by the time they obtained Transition emails on August 23, 2017 (perhaps not coincidentally the day after Strzok’s 302 was formalized) showing Trump’s orchestration of Mike Flynn’s calls with Sergei Kislyak — Mueller has almost certainly had evidence that Trump suborned false statements from Mike Flynn. So even before he finishes the first page, Trump’s hand-picked guy to be Attorney General has made the argument that Trump broke the law and Mueller’s obstruction investigation is appropriate.

Today, as part of a rebuttal to Daniel Hemel and Eric Posner’s comments about the memo, Jack Goldsmith reviews an OLC memo they rely on to back my argument.

Barr’s invocation and application of the presidential plain-statement rule, far from shocking, is quite ordinary. It is so ordinary, in fact, that I doubt Mueller is pursuing the theory that Barr worries about, even though press reports have sometimes suggested that he is. (For similar doubts, see the analyses of Mikhaila Fogel and Benjamin Wittes and of Marty Lederman.) Deputy Attorney General Rod Rosenstein implied that Barr misunderstood Mueller’s theory when he stated that Barr did not have the “actual facts of the case.” One can read Rosenstein’s statement, as Marcy Wheeler does, to mean that Mueller possesses facts—including evidence that Trump suborned false statements from Flynn—to show that Trump has obstructed justice under Barr’s “evidence impairment” theory and that, under the Barr memorandum’s separate discussion of impeachment, Trump can be impeached.

If Wheeler is right, then the Barr memorandum is more likely to be cited in support of an article of impeachment of President Trump for obstruction of justice than it is to be cited, as Hemel and Posner suggest, to immunize Trump from obstruction. We will see if the Democrats presiding over Barr’s confirmation hearings are clever enough not to take Hemel and Posner’s suggestion that Barr’s memo is extreme, and instead use Barr’s memo, as Wheeler counsels, “to talk the incoming Attorney General into backing the logic of the Mueller probe and impeachment in a very public way.”

Given the stakes on all this, I wanted to focus on why I think the public record suggests strongly that Trump suborned perjury (actually, false statements), meaning that Barr has already made the case for impeachment.

Mike Flynn lied to hide consultations with the Transition Team at Mar-a-Lago

First, let’s consider what Mike Flynn lied about, which I lay out in detail here. In addition to lies about being a foreign agent for Turkey and trying to undercut an Obama foreign policy decision pertaining to Israeli settlements, Flynn admitted to lying about whether he discussed sanctions during a series of conversations with Sergey Kislyak. The focus in reporting has always been on the conversations with Kislyak, but as the statement of the offense makes clear, Flynn’s conversations with other Transition Team members — most notably his Deputy, KT McFarland — got almost as much emphasis.

On or about January 24, 2017, FLYNN agreed to be interviewed by agents from the FBI (“January 24 voluntary interview”). During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. FLYNN also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FL YNN’s request. In truth and in fact, however, FLYNN then and there knew that the following had occurred:

a. On or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s actions intended to interfere with the 2016 presidential election (“U.S. Sanctions”).

b. On or about December 28, 2016, the Russian Ambassador contacted FLYNN.

c. On or about December 29, 2016, FLYNN called a senior official of the Presidential Transition Team (“PTT official”), who was with other senior ·members of the Presidential Transition Team at the Mar-a-Lago resort in Palm Beach, Florida, to discuss what, if anything, to communicate to the Russian Ambassador about the U.S. Sanctions. On that call, FLYNN and the PTT official discussed the U.S. Sanctions, including the potential impact of those sanctions on the incoming administration’s foreign policy goals. The PIT official and FLYNN also discussed that the members of the Presidential Transition Team at Mar-a-Lago did not want Russia to escalate the situation.

d. Immediately after his phone call with the PTT official, FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.

e. Shortly after his phone call with the Russian Ambassador, FLYNN spoke with the PTT official to report on the substance of his call with the Russian Ambassador, including their discussion of the U.S. Sanctions.

f. On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

g. On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

h. After his phone call with the Russian Ambassador, FLYNN spoke with senior members of the Presidential Transition Team about FLYNN’s conversations with the Russian Ambassador regarding the U.S. Sanctions and Russia’s decision not to escalate the situation. [my emphasis]

And the 302 (302s are what the FBI calls interview reports) makes this even more clear: Flynn was not only lying about the content of his calls with Kislyak, he was lying about his consultations with McFarland, and through her, the rest of the Transition Team, almost certainly including Trump. Flynn was lying about using language, “tit-for-tat,” that came right out of those consultations.

He was lying to hide that his interactions with Kislyak reflect a deliberate Trump Transition policy choice, rather than his own choice to freelance foreign policy.

Flynn got other people to lie — to the public and to the FBI

But it’s not just Flynn’s lies. It’s also the lies others in the Administration told. According to the NYT story of the relevant emails, at a minimum both McFarland and Sean Spicer would have known that Flynn got instructions ahead of his call with Kislyak and reported positively afterwards.

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

That’s important because both McFarland and Spicer lied to the press about the call in early 2017.

Early on the morning of Jan. 13, 2017, McFarland phoned one of the authors of this article to rebut a column in The Washington Post, which said Flynn and Kislyak had spoken “several times” on Dec. 29, the day the Obama administration announced it was expelling 35 Russian officials and taking other punitive measures.

The column, by David Ignatius, questioned why Flynn was engaging in sensitive foreign policy discussions with Russia when Trump had yet to take office.

McFarland insisted in an on-the-record conversation that Flynn and Kislyak had never discussed sanctions and that they had actually spoken before the administration’s announcement on Dec. 29.

[snip]

McFarland’s earlier account from the on-the-record conversation also matches public statements from Sean Spicer, the transition team’s spokesman and future White House press secretary.

Spicer said that Flynn and Kislyak spoke Dec. 28, before the sanctions were announced, and that “the call centered around the logistics of setting up a call with the president of Russia and the president-elect after he was sworn in.”

“That was it, plain and simple,” he said.

Most of the focus on public statements about the Kislyak calls has been on Mike Pence, but there’s no public record that he was in the loop on discussions about the Kislyak call (nor is there a record of him being interviewed by either the FBI or Mueller, which is one of the reasons I keep saying there’s no public record of him doing anything for which he could or should be indicted).

With McFarland and Spicer, however, we can be sure they both knowingly lied when they told the press that sanctions had not come up.

That’s why I keep pointing to two passages from the addendum to Flynn’s sentencing memo describing the significance of his cooperation. This passage makes it clear there’s some significance to the fact that Transition Team people repeated Flynn’s lies.

This passage makes it clear that, in the wake of Flynn’s cooperation, several other people decided to cooperate.

We know that McFarland is included among the people who decided to be forthcoming with Mueller; Sean Spicer probably is too and others (like Reince Priebus) may be as well. Importantly, we know they decided to be forthcoming after not having been at first. McFarland, at a minimum, lied not just to the press, but also in her first interview with the FBI, after which she made a concerted effort to unforget what really transpired.

Note, too, that that redaction is the last line of the Flynn addendum. While we don’t know what it says, it’s likely that the addendum as a whole reflects something that Mueller seems to be doing with his cooperating witnesses: either finding ways to rehabilitate liars (as he did with Michael Cohen) or using their testimony to pressure others to tell the truth, resulting in witnesses who will be more credible on the stand (which is what I suspect he has done with a number of witnesses with Flynn).

Trump has changed stories about what his Administration knew about Flynn’s lies at least twice

The public record doesn’t actually say how it happened that McFarland and Spice lied about something they should have known to be false. As I’ve laid out, it’s clear that Flynn was not free-lancing when he discussed sanctions with Kislyak, but the record is still unclear about whether he was freelancing when he ordered others to lie about it or not.

But two things strongly suggest he was not.

First, nothing yet has come close to explaining Trump’s actions with Jim Comey, first asking for his loyalty, then, after firing Flynn, asking him to let Flynn’s lies go. That’s all the more true if, as is likely but not publicly proven yet, Pence also knew he was lying when he claimed sanctions didn’t come up in the Flynn-Kislyak call, because lying to Pence is the only explanation Trump has offered for firing Flynn.

It is virtually certain Flynn was following orders — Trump’s orders — when he engaged in discussions about sanctions with Kisylak. And so it is virtually certain that Trump knew, from before he was inaugurated, that his top aides were lying to the press. Yet Trump didn’t find those lies to be a fireable offense until it became clear the lies would lead to a sustained FBI investigation into why Flynn had Kislyak hold off on responding to sanctions.

And over the course of the Mueller investigation, Trump has struggled to come up with a credible explanation for why Flynn’s lies became a fireable offense only after the FBI started looking more closely at his plans for sanctions relief.

Don McGahn wrote a report inventing one explanation for the firing just after it happened (akin to the way he later orchestrated a paper trail justifying Comey’s firing). But even when he wrote the report, it was inconsistent with what Sally Yates told McGahn.

Then, after Flynn flipped and it became clear Comey also documented his side of events (and shared those events contemporaneously with others in DOJ and FBI), Trump’s lawyers tried to massage the story one more time.

Mike Flynn, KT McFarland, Sean Spicer, Don McGahn, and John Dowd (at a minimum — possibly Reince Priebus and others, too) have all had to revise the stories they told the press and even, for some, FBI or Mueller after the fact to try to come up with a non-incriminating explanation for why everyone lied, first to the press, and then to the government.

There’s really only one thing that might explain why at least five top Donald Trump aides or lawyers had to revise stories to try to come up with innocent explanations for non-credible stories they were willing to tell the government from the start. And that’s if Trump were involved in all these lies.

It may well be that Trump didn’t formally suborn false statements before Mike Flynn interviewed with the FBI on January 24, 2017. Perhaps he just instructed Flynn to lie to the press and Flynn sustained the story he had been ordered to tell when the FBI came calling (Trump may well be more involved in the lies that Michael Cohen told to Congress).

But there is little else that can explain why so many people were willing to tell bullshit stories about Flynn (both his conversation with Kislyak and his firing) except that Trump was involved in orchestrating those stories.

Mueller’s obstruction investigation was likely always premised on a theory of obstruction that Trump’s presumed Attorney General nominee William Barr has argued does merit investigation and impeachment: that Trump ordered his subordinates to lie to obstruct an investigation.

 As I disclosed last 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. 

If Trump Is So Concerned that a DOJ Contractor Failed to Archive Texts, Why Not Hold the Contractor Accountable?

In yet another attempt to project criminal wrong-doing on those investigating criminal wrong-doing, both Rudy …

… And his client, Individual 1, have repeated a false claim that Robert Mueller deleted 19,000 Peter Strzok and Lisa Page texts.

The claim is, like so much else emanating from these two men’s twitter thumbs, an either willful or ignorant misstatement, this one based on a DOJ IG Report on efforts to collect Strzok-Page texts that, because of a technical malfunction, didn’t get collected by an FBI contractor. It conflates efforts to replace texts sent using their FBI-issued Samsung Galaxy phones (where some 19,000 texts did not get archived, though the number itself is inflated because it would necessarily include a lot of overlap) with a belated effort to check their Mueller-issued iPhones. Worse still, it talks about texts that actually were recovered.

OIG digital forensic examiners used forensic tools to recover thousands of text messages from these devices, including many outside the period of collection tool failure (December 15, 2016 to May 17, 2017) and many that Strzok and Page had with persons other than each other. Approximately 9,311 text messages that were sent or received during the period of collection tool failure were recovered from Strzok’s S5 phone, of which approximately 8,358 were sent to or received from Page. Approximately 10,760 text messages that were sent or received during the period of collection tool failure were recovered from Page’s S5 phone, of which approximately 9,717 were sent to or received from Strzok. Thus, many of the text messages recovered from Strzok’s S5 were also recovered from Page’s S5.

The only thing to blame Mueller’s office for is that, after reviewing Strzok’s phone and finding no substantive text messages, his Records Officer freed up the phone to be factory reset and issued to someone else.

According to SCO’s Records Officer, Strzok was removed from SCO-related work in late July 2017, and he completed his Exit Clearance Certificate on August 11, 2017. As part of an office records retention procedure, the SCO Records Officer stated that she reviewed Strzok’s phone on September 6, 2017. She told the OIG that she determined it did not contain records that needed to be retained. She noted in her records log about Strzok’s phone: “No substantive texts, notes or reminders.”

The Records Officer appears not to have realized that Page had a Mueller iPhone, so it was only subsequently checked for content, after which point it, too, had been factory reset.

But there’s no reason to think hers would have anything more substantive than Strzok’s phone. That’s because they appear to have kept using their Samsungs in the period they were assigned with Mueller (which is where their interesting texts were sent).

On May 17, 2017, the Special Counsel’s Office (SCO) was established to investigate alleged Russian interference in the 2016 Presidential election. Strzok and Page were assigned to the SCO shortly thereafter (Strzok in early June; Page on May 28) and were provided DOJ JMD iPhones during their SCO assignment. Based on OIG’s examination of their FBI mobile devices, Page and Strzok also retained and continued to use their FBI mobile devices. Specifically, on or about May 18, 2017, Page received an FBI-issued Samsung Galaxy S7 mobile device to replace her previously-issued FBI Samsung Galaxy S5. On or about July 5, 2017, Strzok received an FBl•issued Samsung Galaxy S7 mobile device to replace his previously-issued FBI Samsung Galaxy S5.

So what the President and his plays-a-lawyer-on-TV-flack are complaining about is that the federal government reissued government devices when users no longer needed those government devices, something bureaucracies of all types do all the time. With Strzok, at least, before doing so, the Records Officer checked the device to make sure no important content would be overwritten.

And in trying to invent an obstruction claim out of normal bureaucratic thriftiness, they are ignoring the really damning part of the IG Report. The government contractor whose “bug” was responsible for the text messages that weren’t originally archived (but which were later recovered) still can’t ensure more than 90% of FBI’s texts are recovered.

Among the other excuses FBI offers for implementing a fix to a 20% failure with one that still results in a 10% failure is to say, “complete collection of text messages is neither required nor necessary to meet the FBI’s legal preservation obligations” (which goes back to how they’re requiring retention via policy, but not technologically-assisted procedure). The FBI also says that it “is not aware of any solution that closes the collection gap entirely on its current mobile device platforms,” which makes me wonder why they keep buying new Samsungs if the Samsungs aren’t serving their needs? Aside from the question of why we’d ask FBI Agents to use less secure Korean phones rather than more secure American ones (note, Mueller’s team is using iPhones)?

This story — particularly the contractor’s squirreliness when asked about what privileges its retention function accesses…

As DOJ IG was trying to puzzle through why they couldn’t find all of Strzok and Page’s texts, the unnamed vendor got squirrelly when asked how the retention tool interacts with administrative privileges.

Upon OIG’s request, ESOC Information Technology Specialist [redacted] consulted with the FBl’s collection tool vendor, who informed the FBI that the collection application does not write to enterprise.db. [Redacted] further stated that ESOC’s mobile device team and the vendor believed enterprise.db is intended to track applications with administrative privileges and may have been collecting the logs from the collection tool or another source such as the Short Message Service (SMS) texting application. The collection tool vendor preferred not to share specific details regarding where it saves collected data, maintaining that such information was proprietary; however, [redacted] represented that he could revisit the issue with the vendor if deemed necessary.

Maybe it’s me, but I find it pretty sketchy that this unnamed collection tool vendor doesn’t want to tell the FBI precisely what they’re doing with all these FBI Agents’ texts. “Proprietary” doesn’t cut it, in my opinion.

… Seems like what happens in government when a unit has made inappropriate purchase and contracting decisions, but even two years after discovering that fact, nevertheless doubles down with new investments in the same inappropriate purchase decisions.

If Trump really cared that FBI wasn’t archiving all its texts and continues to fail to do so, he should command Big Dick Toilet Salesman Matt Whitaker to ensure that FBI make purchasing decisions (perhaps starting by replacing the Samsungs with more secure iPhones) that will result in full archival records.

But he didn’t do that. Perhaps it’s time for journalists to start asking why he’s not demanding better of DOJ and FBI going forward?

As I disclosed in 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.

Rob Kelner–the Guy Who Signed Mike Flynn’s FARA Filings–Continued to Be Insubordinate in Yesterday’s Hearing

Most of the attention in yesterday’s Mike Flynn sentencing hearing has focused on Judge Emmet Sullivan’s invocation of treason, which I addressed at length here. But — particularly since I have belatedly realized that Rob Kelner is one of the lawyers referred to in the Bijan Kian indictment who filed a FARA registration that, because of lies attributed to Flynn and Ekim Alptekin, ended up being a false statement, I want to look at two bullshit answers Kelner offered yesterday about his little ploy of introducing language on Peter Strzok and Andrew McCabe in Flynn’s sentencing memo.

Taking the second one first, Sullivan asked Kelner to explain why he chose to cite Peter Strzok’s August 22, 2017 302, which had some language about what a successful liar Flynn can be, and not Flynn’s own utterly damning January 24, 2017 302. This was a question directing counsel to explain why he tried to pull a fast one over on the judge. Any responsive answer would have to address that January 24 302 (and wouldn’t need to address the McCabe memo, at all).

But instead of answering that question, Kelner instead tried to use it to attack the Mueller team.

THE COURT: The other puzzling question I have is this: Can you explain for the record why Mr. Flynn was interviewed by the FBI on January the 24th but the 302 cited in his sentencing memorandum is dated August the 22nd, 2017? There’s no reference, and the January 24th is not highlighted at all.

MR. KELNER: Yes, Your Honor. Thank you for the opportunity to address that. I think there’s been some public confusion about that. The original draft of our brief cited specifically to the FD-302 for the interview of Special Agent Strozk and cited it specifically to the McCabe memorandum, and actually originally we intended to include those documents with the filing. Prior to the filing, we shared a draft copy of our brief with the Special Counsel’s Office really for two purposes: One was to make sure that we weren’t including anything covered by the protective order, which they objected to our including, which would, perhaps, have to be redacted or filed under seal; and the other reason, frankly, was generally to understand what their reaction might be to particular points in the filing. After that, the Special Counsel’s Office discussed it with us and asked that we consider removing the Strozk 302, and the McCabe memorandum from the brief and to simply cite to them. Given our position as cooperating in the investigation, we acceded to that. We then sent them a draft of the footnotes that we would use to cite to the relevant documents, and originally those footnotes, as drafted by us, named the McCabe memorandum specifically and named the Strozk 302 specifically so that it would be clear to the reader which documents we were talking about. The Special Counsel’s Office requested that we change those citations to simply reference the memorandum and date and the FD-302 and date without the names. We acceded to that request, and I would add would not have acceded to it if in any way we felt it was misleading, but we respected the preferences of the Special Counsel’s Office.

THE COURT: All right. Any objection to what counsel said? Anything that you wish to add to that?

MR. VAN GRACK: Judge, just one point of clarification.

THE COURT: Sure.

MR. VAN GRACK: Which is what we’ve represented to defense counsel in terms of what to and not to include, what we indicated was anything in the Strozk 302 and the McCabe memorandum that they thought was relevant can and should be included in their submissions. What we asked was that they not attach the documents because, as the Court is aware, there are other considerations in the material there that we wanted to be sensitive to.

Look closely: Kelner never actually answers Sullivan’s question, at all. Instead, he blames the decisions surrounding how those materials were cited in Flynn’s memo (which was not Sullivan’s question) on Mueller’s office.

Mueller’s team probably withheld the filings because there are legal proceedings involving both McCabe and Strzok. You can argue that those legal proceedings served as an excuse to hide embarrassing information and you might even be right. But that doesn’t give you permission to just blow off a legitimate question from the judge.

The second one is, given Kelner’s tenure of representation for Flynn, even more egregious.

Sullivan unsurprisingly expressed difficulty squaring the suggestion that there were extenuating circumstances to Flynn’s brazen lies in his FBI interview with Flynn’s claim that he was accepting responsibility for his actions. So the judge asked Kelner why he included them.

THE COURT: The references that I’ve mentioned that appear in your sentencing memorandum raise some concerns on the part of the Court. And my question is, how is raising those contentions about the circumstances under which Mr. Flynn lied consistent with acceptance of responsibility?

MR. KELNER: Your Honor, the principle reason we raised those points in the brief was to attempt to distinguish the two cases in which the Special Counsel’s investigation has resulted in incarceration, the Papadopoulos and Van der Zwaan cases in which the Special Counsel had pointed out as aggravating factors the fact that those defendants had been warned and the fact that those defendants did have counsel and lied anyway, and we felt it was important to identify for the Court that those aggravating circumstances do not exist in this case relevant to sentencing.

Kelner — the guy who signed a FARA registration that he might have faced his own legal consequences for if it weren’t for his client’s guilty plea accepting responsibility for the lies told in the registration himself — completely ignored Flynn’s FARA lies, both in his answer to this question and the brief generally. Flynn not only had benefit of counsel when he told one of the lies he pled guilty, again, to telling yesterday, Flynn had benefit of his, Rob Kelner’s, counsel.

And Kelner is only avoiding consequences for those FARA filings himself because (the existing story goes) his client is such an egregious liar, he has also lied to him, his lawyer, in the past.

That seems like a pretty major aggravating factor.

Much later in the hearing, when Kelner realized his client was facing prison time, he tried to take responsibility for all the things that showed up in that sentencing memo. Rather than leaving well enough alone, Kelner renewed his bullshit claim that what George Papadopoulos and Alex Van Der Zwaan did was worse than lying to the FBI and hiding your paid ties to a frenemy government. That led to Sullivan pointing out why even just Flynn’s lies to the FBI were, because he was in such an important role, worse than those of Mueller’s other false statements defendants.

MR. KELNER: Your Honor, with your indulgence, if I could make a few points.

THE COURT: Sure.

MR. KELNER: First of all, let me make very clear, Your Honor, that the decisions regarding how to frame General Flynn’s sentencing memorandum made by counsel, made by me, made by Mr. Anthony, are entirely ours and really should not and do not diminish in any way General Flynn’s acceptance of responsibility in this case. And I want to make that —

THE COURT: That point is well taken, but you understand why I had to make the inquiry?

MR. KELNER: I do.

THE COURT: Because I’m thinking, this sounds like a backpedaling on the acceptance of responsibility. It was a legitimate area to inquire about. And I don’t want to be too harsh when I say this, but I know you’ll understand.

[snip]

MR. KELNER: Right. We understand the Court’s reason for concern. I just wanted to make very clear the very specific reasons that those sections in the brief were included, to distinguish the Papadopoulos and Van der Zwaan cases, which did result in incarceration, we think are meaningfully distinguishable in many respects.

THE COURT: Let me stop you on that point, because I’m glad you raised that, and I was going to raise this point at some point. We might as well raise it now since you brought up Papadopoulos and Van der Zwaan. The Court’s of the opinion that those two cases aren’t really analogous to this case. I mean, neither one of those individuals was a high-ranking government official who committed a crime while on the premises of and in the West Wing of the White House. And I note that there are other cases that have been cited in the memorandum with respect to other individuals sentenced in 2017, I believe, for 1001 offenses, and the point being made — and I think it’s an absolutely good point — the point being made that no one received a jail sentence. My guess is that not one of those defendants was a high-ranking government official who, while employed by the President of the United States, made false statements to the FBI officers while on the premises of and in the West Wing of the White House. That’s my guess. Now, if I’m wrong, then you can point me to any one or more of those cases. This case is in a category by itself right now, but I understand why you cited them. I appreciate that.

MR. KELNER: Your Honor, we don’t disagree. We recognize that General Flynn served in a high-ranking position, and that is unique and relevant. But I —

THE COURT: Absolutely.

But Kelner took that comment, and kept digging, claiming that Flynn’s cooperation should be worth more because his cooperation was more “consequential” than that of the little people.

MR. KELNER: But I would submit to you a couple of points in response for the Court’s consideration. Number one, because of his high rank and because of his former high office, when it came time to deal with this investigation and to deal with the Special Counsel’s Office, that, too, set a higher standard for him, and he did understand that as a three-star general and a former National Security Advisor, what he did was going to be very consequential for the Special Counsel’s investigation, and very consequential for the nation, so he made decisions early on to remain low profile, not to make regular public statements, as some other people did. That was acknowledged by the Special Counsel’s Office when we did first hear from them, the value of that silence. And then he made the decision publicly and clearly and completely and utterly to cooperate with this investigation, knowing that, because of his high rank, that was going to send a signal to every other potential cooperator and witness in this investigation, and that was consequential, and we appreciate the fact that the Special Counsel memorialized that in his brief. That did make a decision, and that was another kind of high standard that was set for him and that he rose to and met decisively. In addition, there have been other cases —

Sullivan interrupted Kelner at this point, perhaps in an effort to get him to stop damaging his client. It didn’t work though, because having argued that Flynn’s efforts to undo his lies were worth more than that of the little people, Kelner then … brought up David Petraeus.

THE COURT: Can I just stop you right now? Is — How do you wish to proceed? Do you wish to proceed with sentencing today or do you want to defer it?

MR. KELNER: Thank you, Your Honor.

THE COURT: Or are you leading up to that point?

MR. KELNER: I’m leading up to that.

THE COURT: No, that’s fine.

MR. KELNER: Just a bit of indulgence, if I may.

THE COURT: No, no. Go ahead. That’s fine.

MR. KELNER: And let me just finish that last point.

THE COURT: No, no, no. I’m not trying to curtail you. I just wanted to make sure I didn’t miss anything.

MR. KELNER: I’m building up to it. I’m building up to it, Your Honor.

THE COURT: All right.

MR. KELNER: In addition, I would note there have been other high profile cases, one involving a four-star general, General Petraeus.

THE COURT: I don’t agree with that plea agreement, but don’t —

MR. KELNER: It’s a classic —

THE COURT: He pled to a misdemeanor?

Right before Sullivan closed the hearing, he expressed his disapproval of that sentence once again with Kelner, presumably as a warning not to argue Flynn should get light treatment, like Petraeus did, because he’s an important decorated general.

While bringing up the double standard the Obama Administration used with Petraeus is totally fair game, especially in Espionage-charged leak cases (which this is not), this was an instance where Kelner either couldn’t hear or didn’t give a fuck about what the judge had already told him, which is that, having read all the sealed underlying documents, he believes the stuff Flynn lied about “is in a category by itself.”

Honestly, if I were Mike Flynn and I had the money I’d fire Kelner after recent events, because — even if Kelner is not responsible for the ploy that badly backfired (and I suspect he’s not, at least not entirely) — by returning to sentencing with a different lawyer, you can try to start fresh with Sullivan, whom you’ve already pissed off.

But it’s not clear that Flynn can do that.

Because while firing Kelner might permit Flynn to claim he had nothing to do with this disavowal of responsibility that Kelner is now claiming responsibility for, Kelner’s still required to claim that Flynn is responsible for the false statements submitted in a document signed by Kelner back in 2017.

More importantly, according to Kelner, the Kian trial is the only thing left for Flynn to offer as far as cooperation.

Nothing has been held back. That said, it is true that this EDVA case that was indicted yesterday is still pending, and it’s likely, I would think, that General Flynn may be asked to testify in that case. We haven’t been told that, but I think it’s likely, and he’s prepared to testify. And while we believe that the Special Counsel’s Office views his cooperation as having been very largely complete, completed at this point, it is true that there’s this additional modicum of cooperation that he expects to provide in the EDVA case, and for that reason, we are prepared to take Your Honor up on the suggestion of delaying sentencing so that he can eke out the last modicum of cooperation in the EDVA case to be in the best position to argue to the Court the great value of his cooperation.

It seems likely that if Kian goes to trial, it will be Kelner’s testimony, not Flynn’s, that might be most important.

Kelner and Flynn are yoked together, Kelner to the lies Flynn told him to file in that FARA filing, and Flynn to the insubordinate effort to dismiss the importance of Flynn’s lies.

As I disclosed in 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. 

Bumped! Rudy’s Ineffective Assistance of Counsel Strategy

I got an invitation to be on my first Sunday show this week. But — as usually happens when you’re talking to big media bookers — I got bumped. I got bumped to make way for this Rudy Giuliani appearance, which sets a new standard among his many media appearances for giving Trump cause to claim his lawyer screwed him over.

The interview starts with Trump’s blabbermouth lawyer assailing someone else for bad lawyering.

RUDY GIULIANI, PRESIDENT TRUMP’S LAWYER: Pathetic. The man is pathetic. That’s a lawyer you were interviewing and he says he — oh, he directed me to do it and, oh my goodness, he directed me. He’s a lawyer. He’s the guy you depend on to determine whether or not you should do it this way or that way, whether you’re Donald Trump or you are me or you, I have…

From there, Rudy pisses away one of the few benefits he offers Trump, his past service as US Attorney in the famously cliquish Southern District of NY. Rather than soft-pedaling any critique of SDNY, Rudy repeatedly pisses all over the office currently targeting his client, his client’s spawn, and his client’s eponymous corporation in at least one serious criminal investigation.

STEPHANOPOULOS: But you just said you ran that office. You know how the Southern District is run. You know exactly how the Southern District is run.

GIULIANI: No, I don’t know — actually, I don’t know how the Southern District —

(CROSSTALK)

STEPHANOPOULOS: They wouldn’t have put that in the statement of fact if they didn’t believe —

GIULIANI: I’m disgusted with the Southern District.

[snip]

STEPHANOPOULOS: Here’s the question I have for you. Why do you have so much trouble with the southern district? The southern district’s being run – this case being run by Robert Khuzami, a Republican appointed by the Trump administration, spoke at the Republican …

GIULIANI: His interpretation of the campaign finance law is completely erroneous. And to be – even if – and even if you want to make some argument that there’s some validity to it, you do not pursue a president of the United States for a questionable interpretation of the statute. That is completely wrong, it’s harassment.

After failing to respond to George Stephanopoulos’ descriptions of what distinguishes Trump’s hush payment case from that of John Edwards, Rudy fails to offer one piece of evidence that might back his arguments — that Trump had paid similar hush payments in the past, when winning the Presidential election wasn’t at stake.

STEPHANOPOULOS: Did he ever make any payments like that in the past?

GIULIANI: Nobody else asked for — in the past, I can’t speak to. I wasn’t his lawyer in the past.

Rudy then tries to claim that Jerome Corsi (who, Stephanopoulos points out, claimed 9/11 was an inside job) and Mike Flynn were not lying, misstating that Peter Strzok had said something exonerating about Flynn in a text versus an FBI interview.

Peter Strzok wrote in one of his texts that he didn’t seem to be – he didn’t seem to be lying, wasn’t acting like a person …

This is where things start to go really haywire. Stephanopoulos asks Rudy about the reference to Michael Cohen’s ongoing contacts with the White House through 2018 — which, given the way multiple entities happened to tell the same false story about the Trump Tower deal, likely means a conspiracy to obstruct justice — and in response Rudy says “It was over by the time of the election.”

STEPHANOPOULOS: Now, the special counsel went on to say that they found Cohen credible, provided valuable information about Russia-related matters for its investigation, also that his contacts with persons connected to the White House in 2017 and 2018, they seem to be getting at, there, both collusion and obstruction.

GIULIANI: Isn’t that prosecution by innuendo? I have no idea what they’re talking about. Beyond what you just said, I have no idea what they’re talking about …

STEPHANOPOULOS: Well, let me ask you a few specifics.

GIULIANI: I have no – I have no idea – I know that collusion is not a crime. It was over with by the time of the election. I don’t know what evidence … [my emphasis]

Admittedly, by this point in the interview, Rudy was blathering. But I’m particularly interested — given that Trump reportedly refused to answer any Mueller questions about the transition — that Rudy thinks in terms of the collusion he’s seemingly admitting his client engaged in ended “by the time of the election.” Trump’s legal team may be adopting a defensive strategy premised on the claim that certain activities (reaching out to Russians to tell them you’ll give them sanctions relief is just the most obvious) can be divorced from any context that implicates election season “collusion.”

That’s the form of Rudy’s most newsworthy statement is so interesting. He says that the answer Trump gave (in context, this must mean in response to Mueller’s questions) “would have covered all the way up to,” and here he corrects himself, “covered up to November, 2016.”

STEPHANOPOULOS: Did the president – did Donald Trump know that Michael Cohen was pursuing the Trump Tower in Moscow into the summer of 2016?

GIULIANI: According to the answer that he gave, it would have covered all the way up to – covered up to November, 2016. Said he had conversations with him but the president didn’t hide this. They know …

STEPHANOPOULOS: Earlier they had said those conversations stopped in January, 2016.

GIULIANI: I don’t — I mean, the date — I mean, until you actually sit down and you look at the questions, and you go back and you look at the papers and you look at the — the — you’re not going to know what happened. That’s why — that’s why lawyers, you know, prepare for those answers.

This is breaking news, of course: the last we had heard, the Trump Tower negotiations only went up through July. Here, Rudy seems to be confessing that they went through November.

Only, his reference to “why lawyers, you know, prepare for those answers” suggests that that’s not what Trump’s response to Mueller actually was. I would imagine the response he gave was deliberately left vague enough so that if Cohen (who was caught meeting with Mueller in the days when Trump was finalizing his answers) told Mueller the deal went through November, then Trump’s answer wouldn’t contradict that, even if he didn’t admit that the deal did go that long.

Rudy went on the teevee this morning, in part, to make an utterly damning statement that would nevertheless tell Mueller’s prosecutors that the answer (lawyers wrote but that) his client swore to was meant to cover a deal that continued all the way through November, even if he didn’t say that explicitly.

Remember, the day Cohen pled guilty on the Mueller false statements charge, Rudy gave an unbelievably hedged answer about whether that deal ever died.

“The president, as far as he knows, he remembers there was such a proposal for a hotel,” Giuliani said. “He talked it over with Cohen as Cohen said. There was a nonbinding letter of intent that was sent. As far as he knows it never came to fruition. That was kind of the end of it.”

Rudy seems confident that Cohen did not know about the continuation of this deal, but I’d bet money that it did continue.

Back to today’s interview, Rudy goes on to deny, then back off a categorical denial, that Stone communicated to Trump about WikiLeaks, working hard to suggest that Mueller might only charge a conspiracy to hack, not a conspiracy to defraud the United States (even while the public record makes it increasingly possible that Stone could get charged in a CFAA conspiracy).

STEPHANOPOULOS: And did Roger Stone ever give the president a heads-up on WikiLeaks’ leaks — leaks concerning Hillary Clinton, the DNC?

GIULIANI: No, he didn’t.

STEPHANOPOULOS: Not at all?

GIULIANI: No. I don’t believe so. But again, if Roger Stone gave anybody a heads-up about WikiLeaks’ leaks, that’s not a crime. It would be like giving him a heads-up that the Times is going to print something. One the — the crime — this is why this thing is so weird, strange — the crime is conspiracy to hack; collusion is not a crime, it doesn’t exist.

STEPHANOPOULOS: No. Conspiracy to defraud the government, you’re right, conspiracy to hack that is the crime. We don’t know whether …

GIULIANI: Yes. Did Donald Trump engage in a conspiracy to hack with the Russians? They’ve been going at it. The counterintelligence investigation came to the conclusion no evidence.

Rudy seems to take wholly unjustified comfort in what I can only guess is that GRU indictment describing his client and Stone prominently, without charging them. Hell, Julian Assange hasn’t even been charged yet; why does Rudy think the counterintelligence investigation is done?

From there, Rudy admits he was in discussions with Cohen’s lawyers about pardons!!!! He then suggests that Cohen “double-crossed” — that is, told the truth — because of that discussion about pardons.

STEPHANOPOULOS: Well, they’re also looking at obstruction. Did anyone connected to the president ever suggest in any way to Michael Cohen that he would get a pardon if he stayed on the team?

GIULIANI: I had this specific conversation with his lawyers and that liar can say what he wants, I told his lawyers there will be no discussion of a pardon. That doesn’t mean the president doesn’t have the — nobody’s giving away any power, but do not consider it in your thinking now. It has nothing about what you should decide about yourself. I think that’s one of the reasons why he double-crossed.

All this ends with Rudy stating, quite confidently, that Mueller is done, after having just said that conversations were ongoing about whether Trump might sit for an interview.

STEPHANOPOULOS: I do know that from my time in the White House. Final question: Mueller almost done?

GIULIANI: He is done. I don’t know what else — I told you. No, the only thing left are the parking tickets and jaywalking.

Maybe Rudy’s right. Maybe Mueller has told him they didn’t find any evidence against his client.

But even if that’s (improbably) true, if I’m Mueller I might be reopening things in light of this appearance by Rudy.

As I disclosed in 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. 

That Peter Strzok 302 Probably Comes from the Obstruction Case File

I’d like to provide a plausible explanation for questions about an FBI 302 released yesterday as part of the Mike Flynn sentencing.

As a reminder, after Flynn pled guilty, his case ultimately got assigned to Emmet Sullivan, who is laudably insistent on making sure defendants get any possible exonerating evidence, even if they’ve already pled guilty. On his orders, the government would have provided him everything early in 2018.

In Flynn’s sentencing memo submitted earlier this week, his lawyers quoted from an Andrew McCabe memo written the day of his interview and a 302 that they described to be dated August 22, 2017, a full 7 months after his interview. In predictable response, Sullivan instructed the government to provide that McCabe memo and the 302 cited by Flynn’s lawyers.

When the government submitted those two documents yesterday, they raised still more questions, because it became clear the 302 (which is what FBI calls their interview reports) in question was of an interview of Strzok conducted on July 19, 2017, drafted on July 20, and finalized on August 22. The 302 described that Strzok was the lead interviewer in Flynn’s interview, whereas his interviewing partner wrote up the 302.

This has raised questions about why we only got the Strzok 302, and not the original one cited by Strzok.

While I don’t have a full explanation, certain things are missing from the discussion.

Folks are misunderstanding what the 302 represents. It is not the 302 reporting the Flynn interview. Rather, it is a 302 “collect[ing] certain information regarding Strzok’s involvement in various aspects of what has become the Special Counsel’s investigation,” which he described to one Senior Assistant Special Counsel and an FBI Supervisory Special Agent, presumably one assigned to SCO. The 302 notes that Strzok wasn’t just involved in the investigation of Mike Flynn. While it redacts the names, it also lists the other parts of the investigation he oversaw.

We know he was involved in the Papadopoulos investigation, and it appears likely he was involved in the Page investigation, as well. Both this passage and the next one describes the people at DOJ that Strzok interacted with in these investigations, which is further evidence the purpose of this 302 is not to capture the interview, but instead to capture details about internal workings surrounding the investigation itself.

The part of this 302 that is unredacted makes up maybe a third of the substance of the 302, and it appears between almost full page redactions before and after the part describing the Flynn interview. Again, the other stuff must be as pertinent to the purpose of this 302 as the Flynn interview itself.

had thought the interview might be an effort by SCO to capture Strzok’s institutional knowledge in the wake of the discovery of his texts with Lisa Page as a way to prepare some other FBI Agent to be able to testify at trial. But the timing appears wrong. DOJ’s IG first informed Mueller about the texts on July 27, and he was removed from the team the next day (though not processed out of that clearance, according to this report, until August 11).

Strzok was assigned to lead the Russia investigation in late July 2016. 197 Page also worked on the Russia investigation, and told us that she served the same liaison function as she did in the Midyear investigation. Both Page and Strzok accepted invitations to work on the Special Counsel staff in 2017. Page told the OIG that she accepted a 45-day temporary duty assignment but returned to work in the Deputy Director’s office at the FBI on or around July 15, 2017. Strzok was removed from the Special Counsel’s investigation on approximately July 28, 2017, and returned to the FBI in another position, after the OIG informed the DAG and Special Counsel of the text messages discussed in this report on July 27, 2017. [my emphasis]

But the interview does line up temporally with other known events: Around the time Strzok was interviewed, both Rod Rosenstein and Sally Yates were interviewed in the obstruction case, interviews that would also result in 302s summarizing the interview. Jim Comey had already turned over his memos on meetings with Trump by that point; eventually he would be interviewed by Mueller as well, though it’s not clear when that interview (and correlating 302) was.

Yates and Comey are both among the people the 302 explicitly describes Strzok interacting with.

In other words, it seems likely that this 302 was designed to capture what Strzok knew about the internal workings of DOJ and FBI surrounding the Mike Flynn interview, and likely was focused on explaining the significance of Flynn’s lies and subsequent firing to the obstruction case. That is, this would have served to turn what Strzok learned as investigator into information Strzok had to offer as a witness, in the same way that Mueller would have had to turn what Comey and Rosenstein knew as supervisors into information relevant to their role as witnesses. It probably had the unintended benefit of capturing what Strzok knew about key parts of the investigation before he was indelibly tainted by the discovery of his text messages.

If this is the explanation, it raises questions about why we only got this 302, and not the original one.

There’s a very likely answer to that: that original 302 presumably didn’t include this detail, at least not in the easily quotable form that would serve Flynn’s political purposes.

Flynn has, as far as we know, gotten everything. His lawyers chose which of those documents to quote. And Judge Sullivan only ordered the government to produce these two (though invited them to submit anything else they wanted to, an invitation they did not take up).

But there’s another piece of evidence that there’s far less to this 302 than some are suggesting: because Republicans in Congress chased down this detail over the last year, and in their most recent incarnation of drumming up conspiracies about Flynn, in questioning Jim Comey just a week ago, Trey Gowdy did not focus on the question of the 302s produced, but instead tried to suggest that Flynn didn’t mean to lie.

Note that, contrary to what right wingers have suggested, Comey did not say anything inconsistent with the Strzok interview 302; rather, he said he wasn’t sure where his knowledge came from.

Mr. Gowdy. Who is Christopher Steele? Well, before I go to that, let me ask you this.

At any — who interviewed General Flynn, which FBI agents?

Mr. Comey. My recollection is two agents, one of whom was Pete Strzok and the other of whom is a career line agent, not a supervisor.

Mr. Gowdy. Did either of those agents, or both, ever tell you that they did not adduce an intent to deceive from their interview with General Flynn?

Mr. Comey. No.

Mr. Gowdy. Have you ever testified differently?

Mr. Comey. No.

Mr. Gowdy. Do you recall being asked that question in a HPSCI hearing?

Mr. Comey. No. I recall — I don’t remember what question I was asked. I recall saying the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing.

Mr. Gowdy. Who would you have gotten that from if you were not present for the interview?

Mr. Comey. From someone at the FBI, who either spoke to — I don’t think I spoke to the interviewing agents but got the report from the interviewing agents.

Mr. Gowdy. All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?

Mr. Comey. I don’t remember for sure. I think I may have done both, that is, read the 302 and then spoke to people who had spoken to the investigators themselves. It’s possible I spoke to the investigators directly. I just don’t remember that.

Mr. Gowdy. And, again, what was communicated on the issue of an intent to deceive? What’s your recollection on what those agents relayed back?

Mr. Comey. My recollection was he was — the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is, hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being — they’re telling falsehoods. There’s no doubt he was lying, but that those indicators weren’t there.

Mr. Gowdy. When you say “lying,” I generally think of an intent to deceive as opposed to someone just uttering a false statement.

Mr. Comey. Sure.

Mr. Gowdy. Is it possible to utter a false statement without it being lying?

Mr. Comey. I can’t answer — that’s a philosophical question I can’t answer.

Mr. Gowdy. No, I mean, if I said, “Hey, look, I hope you had a great day yesterday on Tuesday,” that’s demonstrably false.

Mr. Comey. That’s an expression of opinion.

Mr. Gowdy. No, it’s a fact that yesterday was —

Mr. Comey. You hope I have a great day —

Mr. Gowdy. No, no, no, yesterday was not Tuesday.

Mr. Gowdy. And, again — because I’m afraid I may have interrupted you, which I didn’t mean to do — your agents, it was relayed to you that your agents’ perspective on that interview with General Flynn was what? Because where I stopped you was, you said: He was lying. They knew he was lying, but he didn’t have the indicia of lying.

Mr. Comey. Correct. All I was doing was answering your question, which I understood to be your question, about whether I had previously testified that he — the agents did not believe he was lying. I was trying to clarify. I think that reporting that you’ve seen is the product of a garble. What I recall telling the House Intelligence Committee is that the agents observed none of the common indicia of lying — physical manifestations, changes in tone, changes in pace — that would indicate the person I’m interviewing knows they’re telling me stuff that ain’t true. They didn’t see that here. It was a natural conversation, answered fully their questions, didn’t avoid. That notwithstanding, they concluded he was lying.

Mr. Gowdy. Would that be considered Brady material and hypothetically a subsequent prosecution for false statement?

Mr. Comey. That’s too hypothetical for me. I mean, interesting law school question: Is the absence of incriminating evidence exculpatory evidence? But I can’t answer that question. [my emphasis]

What may best explains this exchange is that, when it happened, Comey had never seen the Strzok 302, he had just seen the original one, but Gowdy had seen both. That would be consistent with Andrew McCabe’s testimony to HPSCI, which acknowledged that the Agents didn’t detect deception but knew Flynn’s statements did not match the FISA transcript.

McCabe confirmed the interviewing agent’s initial impression and stated that the “conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview … the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.”

Gowdy may be suggesting that the original 302 was unfair because it did not admit how well Flynn snookered the FBI’s top Counterintelligence Agent. But that detail may not be something Comey is even aware  of, because it only got written down after he had been fired. That would explain why Flynn wouldn’t want that original one disclosed, because it might make clear that the FBI immediately recognized his claims to be false, even if they didn’t know (before doing the requisite follow-up) why he lied.

One thing we do know: there are two (related) criminal investigations that have come out of Mike Flynn’s interview. The first, into his lies, and the second, into Trump’s efforts to keep him on in spite of his lies by firing the FBI Director.

While we can’t say for sure (and Mueller’s office would not comment in response to my questions when I asked if something like this explained the 302), one possible explanation for why we’re seeing just this 302 is it’s the only one that makes Flynn look good.

Update: As JL notes, the Mueller filing makes it clear that the 302 is neither from the Flynn investigation nor from an investigation into Strzok’s conduct.

Strzok was interviewed on July 19, 2017, in relation to other matters, not as part of the investigation of the defendant or any investigation of Strzok’s conduct.

As I disclosed in 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. 

After Replacing FBI Devices Two Times, the Bureau Still Fails to Collect 10% of Agent Text Messages

Today, DOJ’s Inspector General released its report on the efforts it made to restore all of Peter Strzok and Lisa Page’s text messages. The report is actually better used to illustrate how, three years into beginning to respond to its failures to collect all of the texts sent or received using FBI issued phones, and after twice upgrading the phones Agents get issued, it still fails to retain 10% of texts that Agents send and receive.

With regards to Strzok and Page, the report describes the efforts it made to obtain all their texts, which includes:

  • Obtaining both the Samsung (Galaxy 5, then Galaxy 7) phones they used during this period, as well the iPhones issued for their brief stint in Mueller’s office, the latter of which neither appears to have used
  • Using the existing collection tool, which included big gaps for key periods of interest
  • Asking DOD’s Computer Forensic Lab for help
  • Searching the Enterprise database, which found a bunch more texts, for reasons no one could explain
  • Hiring an outside Android consultant, who found 62 additional text messages

The upshot is, FBI doesn’t know whether they recovered all Strzok and Page’s texts, and doesn’t know why they didn’t, if in fact they didn’t.

And we’re only learning this because the two of them decided to conduct an extramarital affair on their FBI-issued devices while serving on the two most high profile investigations in recent FBI history.

Which raises the question: is this also true for Agents investigating defendants without the clout of Hillary Clinton or Donald Trump? If necessary, would the FBI be able to find their texts?

The answer is, maybe not.

Here’s what this report says about FBI’s retention rules, generally.

First, important texts are retained by policy, not (technologically-assisted) procedure. So the country’s premier law enforcement agency ensures that important law enforcement related texts are retained by saying anything covering these topics must be retained.

  • Factual information about investigative activity
  • Factual information obtained during interviews or interactions with witnesses (including victims), potential witnesses, experts, informants, or cooperators
  • Factual discussions related to the merits of evidence
  • Factual information or opinions relating to the credibility or bias of witnesses, informants and potential witnesses; and
  • Other factual information that is potentially discoverable under Brady, Giglio, Rule 16 or Rule 26.2 (Jencks Act)

But it’s up to the Agents to do that. And if they don’t for some reason, they’re instructed to ask the Enterprise Security Operations Center if they retained them. But the ESOC is not mandated to retain texts. They happen to, but it’s not tied to any mandate to retain substantive communications required to be saved by policy.

The ESOC has a tool, by a vendor whose name may not even appear in redacted form in this report, that “wirelessly collect[s] text messages sent to or from FBI-issued mobile devices.”

As the FBI’s response to this report reveals, the Bureau has known for some time that that tool didn’t collect everything, because they’ve told the OIG that on two prior occasions.

Prior to the OIG’s investigation into the FBI’s actions in advance of the 2016 election, during at least two unrelated investigations, one of which dates back to 2015, the FBI made the OIG aware of gaps in FBI text message collection capabilities.

As DOJ IG was trying to puzzle through why they couldn’t find all of Strzok and Page’s texts, the unnamed vendor got squirrelly when asked how the retention tool interacts with administrative privileges.

Upon OIG’s request, ESOC Information Technology Specialist [redacted] consulted with the FBl’s collection tool vendor, who informed the FBI that the collection application does not write to enterprise.db. [Redacted] further stated that ESOC’s mobile device team and the vendor believed enterprise.db is intended to track applications with administrative privileges and may have been collecting the logs from the collection tool or another source such as the Short Message Service (SMS) texting application. The collection tool vendor preferred not to share specific details regarding where it saves collected data, maintaining that such information was proprietary; however, [redacted] represented that he could revisit the issue with the vendor if deemed necessary.

Maybe it’s me, but I find it pretty sketchy that this unnamed collection tool vendor doesn’t want to tell the FBI precisely what they’re doing with all these FBI Agents’ texts. “Proprietary” doesn’t cut it, in my opinion.

In any case, the FBI started trying to fix the problem, starting in 2016. At the time they started, they were losing 20% of the texts sent and received. After two upgrades of Samsung phones and a fix to a “bug” later, they’re still not collecting 10%.

During calendar year 2017, the FBI phased out use of the Samsung Galaxy S5 devices by its employees and replaced them with Samsung Galaxy S7 devices because of software and other issues that prevented the data collection tool from reliably capturing text messages sent and received via FBI issued Samsung Galaxy SS mobile devices. According to FBl’s Information and Technology Branch, as of November 15, 2018, the data collection tool utilized by FBI was still not reliably collecting text messages from approximately IO percent of FBI issued mobile devices, which included Samsung S7s and subsequently issued S9s. By comparison, the estimated failure rate of the collection tool was 20 percent for the Samsung S5s.

The FBI’s tech folks provided these explanations for why the tool by the unnamed vendor still doesn’t work.

  • In calendar year 2016 the collection application vendor reported a “bug” in a version of the collection tool which caused the application to stop collecting text message or log data- This application version was replaced by a newer version that corrected the issue in March 2017.
  • Errors during the initial installation of the collection application, such as misconfiguration during setup.
  • Errors in the collection application’s ability to send text message data caused by software updates or operating system updates on the mobile device itself.
  • Hardware errors, such as the device not being powered on, being located in a poor cellular signal area, or being located in an area with no cellular service.

Among the other excuses FBI offers for implementing a fix to a 20% failure with one that still results in a 10% failure is to say, “complete collection of text messages is neither required nor necessary to meet the FBI’s legal preservation obligations” (which goes back to how they’re requiring retention via policy, but not technologically-assisted procedure). The FBI also says that it “is not aware of any solution that closes the collection gap entirely on its current mobile device platforms,” which makes me wonder why they keep buying new Samsungs if the Samsungs aren’t serving their needs? Aside from the question of why we’d ask FBI Agents to use less secure Korean phones rather than more secure American ones (note, Mueller’s team is using iPhones)?

This story, like so many with the hoaxes that Republicans have ginned up to try to delegitimize the Mueller investigation, seems to be the big story, not what Strzok and Page sent themselves two years ago (the IG Report concluded the non-discoverable texts did not cover one subject area, so weren’t by themselves suspect, and doubted either Strzok or Page had the technical capability to selectively destroy only incriminating texts).

The FBI is an agency that routinely demands that people respond to subpoenas by pulling all the relevant texts on a given subject. If you were to fail, they would be at least consider whether your failure to do so amounted to obstruction. But they don’t guarantee they would be able to meet that same standard — they’re happy with their 10% failure rate, apparently.

And while it is an interesting topic for Strzok and Page and Donald Trump’s attempts to claim Witch hunt! it’s the instances where criminal defendants are asking the FBI to search for relevant texts among agents (in just one example, MalwareTech asked the FBI for texts between Agents surveilling and then arresting him in Las Vegas, but got nothing) that I care about. Because if you only aspire to 90% retention, and if you attribute any failure to do better to an individual Agent’s failure to meet a policy (but how would you prove it, if the point is that a given text no longer exists to be discovered?), then you’re pretty much ensuring that you can’t fully comply with discovery requests from defendants.

Apparently, the FBI seems okay with that.

On Emmet Sullivan’s Order for Mike Flynn’s 302s: Be Careful What You Ask For

In his sentencing memorandum, Mike Flynn waved the following in front of Judge Emmet Sullivan, like a red cape before a bull.

There are, at the same time, some additional facts regarding the circumstances of the FBI interview of General Flynn on January 24, 2017, that are relevant to the Court’s consideration of a just punishment.

At 12:35 p.m. on January 24, 2017, the first Tuesday after the presidential inauguration, General Flynn received a phone call from then-Deputy Director of the FBI, Andrew McCabe, on a secure phone in his office in the West Wing.20 General Flynn had for many years been accustomed to working in cooperation with the FBI on matters of national security. He and Mr. McCabe briefly discussed a security training session the FBI had recently conducted at the White House before Mr. McCabe, by his own account, stated that he “felt that we needed to have two of our agents sit down” with General Flynn to talk about his communications with Russian representatives.21

Mr. McCabe’s account states: “I explained that I thought the quickest way to get this done was to have a conversation between [General Flynn] and the agents only. I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice. [General Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”22

Less than two hours later, at 2:15 p.m., FBI Deputy Assistant Director Peter Strzok and a second FBI agent arrived at the White House to interview General Flynn.23 By the agents’ account, General Flynn was “relaxed and jocular” and offered to give the agents “a little tour” of the area around his West Wing office. 24 The agents did not provide General Flynn with a warning of the penalties for making a false statement under 18 U.S.C. § 1001 before, during, or after the interview. Prior to the FBI’s interview of General Flynn, Mr. McCabe and other FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport,” one of the agents reported.25 Before the interview, FBI officials had also decided that, if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, . . . to try to refresh his recollection. If Flynn still would not confirm what he said, . . . they would not confront him or talk him through it.”26 One of the agents reported that General Flynn was “unguarded” during the interview and “clearly saw the FBI agents as allies.”27

He cited a memo that fired FBI Deputy Director Andrew McCabe wrote the day of Flynn’s interview and the interview report (called a “302”) that fired FBI Special Agent Peter Strzok had a hand in writing up in August 2017, some seven months after the interview.

In response, the judge in his case, Emmet Sullivan, issued an order asking not just for those two documents, but any documents related to the matters Flynn writes up, to be filed by tomorrow, along with the government’s reply to his memorandum.

And so it is that on the one year anniversary of the order Sullivan issued to ensure that Flynn got any exculpatory information relating to his plea, that the hopes among the frothy right that Flynn’s prosecution (including for lying about his sleazy influence peddling with Turkey) will be delegitimized and with it everything that happened subsequent to Flynn’s plea might be answered.

Or maybe not.

For those unfamiliar with his background, back in the waning years of the Bush Administration, Sullivan presided over the Ted Stevens’ prosecution. After Stevens was convicted, DOJ started ‘fessing up to a bunch of improprieties, which led Sullivan (on newly confirmed Eric Holder’s recommendation) to throw out the conviction. Sullivan demanded a report on the improprieties, which ended up being a scathing indictment of DOJ’s actions (that nevertheless didn’t lead to real consequences for those involved). Since that time, Sullivan has been wary of DOJ’s claims, which has led him to do things like routinely issue the order he did with Flynn’s case, making sure that defendants get any exculpatory evidence they should get.

Regardless of how this request works out, you should applaud Sullivan’s diligence. He’s one of just a few judges who approaches the government with the skepticism they deserve. And to the extent that problems with our criminal justice system only get noticed when famous people go through it, it’s important that this one be treated with such diligence.

Still, those problems include both abuse, like we saw in the Stevens case, and special treatment, like David Petraeus got, and it’s actually unclear whether Sullivan’s request will uncover one or the other (or neither). I say that for several reasons.

First, because the public evidence suggests that — if anything — Obama’s appointees demanded FBI proceed cautiously in their investigation of Trump’s people, delaying what in any other case would have been routine early collection. When FBI discovered Flynn making suspicious comments to Sergei Kislyak, concerns about how to proceed went all the way up to Obama.

Moreover, contrary to most reporting on this interview, the FBI’s suspicions about Flynn did not arise exclusively from his calls to Kislyak. The interview happened after a counterintelligence investigation into Flynn had been open for months, as laid out by the House Intelligence Committee Russia report.

Director Comey testified that he authorized the closure of the CI investigation into general Flynn by late December 2016; however, the investigation was kept open due to the public discrepancy surrounding General Flynn’s communications with Ambassador Kislyak. [redacted] Deputy Director McCabe stated that, “we really had not substantiated anything particularly significant against General Flynn,” but did not recall that a closure of the CI investigation was imminent.

If McCabe believed the CI investigation into Flynn had produced mostly fluff, it might explain why he would approach setting up an interview with him with less than the rigor that he might have (as arguably happened with Hillary in the analogous situation). He didn’t expect there to be a there there, but then there was (remember, Jim Comey has repeatedly said that the one thing that might have led the Hillary investigation to continue past her interview as if they caught her lying; the difference is that Flynn told obvious lies whereas Hillary did not).

Finally, there’s one other, major reason to think this ploy may not work out the way Flynn might like. That’s because the frothy right, its enablers in Congress, and the White House itself has pursued this line for most of a year. Particularly in the wake of Flynn’s cooperation agreement, claiming that Flynn was just confused or forgetful when he spoke to the FBI has been central to Trump’s serial cover stories for why he fired Flynn.

So Republicans hoping to find the smoking gun have looked and looked and looked and looked and looked at the circumstances of Mike Flynn’s interview. Already by March of last year, they had resorted only to misstating Comey’s testimony about what happened in the HPSCI report.

Director Comey testified to the Committee that “the agents … discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”

Nothing in the report — which now includes a section substantially declassified to reveal more purportedly incriminating details about Flynn — suggests real impropriety with his interview.

Even in that very same paragraph, they quote McCabe (the guy who wrote up a memo that same day, which is probably what Sally Yates relied on when she suggested to the White House they needed to fire Flynn) stating very clearly that the FBI agents recognized that Flynn had lied.

McCabe confirmed the interviewing agent’s initial impression and stated that the “conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview … the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.”

The degree to which, after looking and looking and looking and looking for some smoking gun relating to the Flynn interview but finding very little is perhaps best indicated by where that search has gotten after looking and looking and looking and looking — as most recently exhibited in Jim Comey’s questioning from a week ago, by the Republicans’ best prosecutor, Trey Gowdy. After (apparently) hoping to catch Comey lying about what investigators thought when the lifetime intelligence officer managed to lie without any tells but instead leading him through a very cogent explanation of it, Gowdy then resorts to sophistry about what day of the week it is.

Mr. Gowdy. Who is Christopher Steele? Well, before I go to that, let me ask you this.

At any — who interviewed General Flynn, which FBI agents?

Mr. Comey. My recollection is two agents, one of whom was Pete Strzok and the other of whom is a career line agent, not a supervisor.

Mr. Gowdy. Did either of those agents, or both, ever tell you that they did not adduce an intent to deceive from their interview with General Flynn?

Mr. Comey. No.

Mr. Gowdy. Have you ever testified differently?

Mr. Comey. No.

Mr. Gowdy. Do you recall being asked that question in a HPSCI hearing?

Mr. Comey. No. I recall — I don’t remember what question I was asked. I recall saying the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing.

Mr. Gowdy. Who would you have gotten that from if you were not present for the interview?

Mr. Comey. From someone at the FBI, who either spoke to — I don’t think I spoke to the interviewing agents but got the report from the interviewing agents.

Mr. Gowdy. All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?

Mr. Comey. I don’t remember for sure. I think I may have done both, that is, read the 302 and then spoke to people who had spoken to the investigators themselves. It’s possible I spoke to the investigators directly. I just don’t remember that.

Mr. Gowdy. And, again, what was communicated on the issue of an intent to deceive? What’s your recollection on what those agents relayed back?

Mr. Comey. My recollection was he was — the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is, hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being — they’re telling falsehoods. There’s no doubt he was lying, but that those indicators weren’t there.

Mr. Gowdy. When you say “lying,” I generally think of an intent to deceive as opposed to someone just uttering a false statement.

Mr. Comey. Sure.

Mr. Gowdy. Is it possible to utter a false statement without it being lying?

Mr. Comey. I can’t answer — that’s a philosophical question I can’t answer.

Mr. Gowdy. No, I mean, if I said, “Hey, look, I hope you had a great day yesterday on Tuesday,” that’s demonstrably false.

Mr. Comey. That’s an expression of opinion.

Mr. Gowdy. No, it’s a fact that yesterday was —

Mr. Comey. You hope I have a great day —

Mr. Gowdy. No, no, no, yesterday was not Tuesday.

Then Gowdy tries a new tack: suggesting that Flynn should have gotten the agents’ finding that he lied without any physical tells provided as some kind of Brady evidence.

Mr. Gowdy. And, again — because I’m afraid I may have interrupted you, which I didn’t mean to do — your agents, it was relayed to you that your agents’ perspective on that interview with General Flynn was what? Because where I stopped you was, you said: He was lying. They knew he was lying, but he didn’t have the indicia of lying.

Mr. Comey. Correct. All I was doing was answering your question, which I understood to be your question, about whether I had previously testified that he — the agents did not believe he was lying. I was trying to clarify. I think that reporting that you’ve seen is the product of a garble. What I recall telling the House Intelligence Committee is that the agents observed none of the common indicia of lying — physical manifestations, changes in tone, changes in pace — that would indicate the person I’m interviewing knows they’re telling me stuff that ain’t true. They didn’t see that here. It was a natural conversation, answered fully their questions, didn’t avoid. That notwithstanding, they concluded he was lying.

Mr. Gowdy. Would that be considered Brady material and hypothetically a subsequent prosecution for false statement?

Mr. Comey. That’s too hypothetical for me. I mean, interesting law school question: Is the absence of incriminating evidence exculpatory evidence? But I can’t answer that question.

I mean, maybe there are some irregularities explaining why it took seven months to write up Flynn’s 302 and how information about the interview was shared within DOJ in the interim; if there is I’d like to know what those are. But what everyone seems to agree is that there was no dispute, from the very beginning, that Flynn lied.

And Flynn’s statement actually makes things worse for himself (and, importantly, for one of the White House cover stories that his firing was immediately precipitated by Don McGahn confronting him with the transcript of his conversation with Kislyak). Flynn’s own sentencing memo makes it clear the FBI Agents were quoting directly from the transcript about what he said.

FBI officials had also decided that, if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, . . . to try to refresh his recollection. If Flynn still would not confirm what he said, . . . they would not confront him or talk him through it.”

So Flynn would have known, way back when the White House was trying to find excuses to keep him on, precisely what he had been caught saying.

Finally, remember two more details. While we can’t read it, Sullivan (and Flynn’s team) know what’s behind this redaction:

That means Sullivan knows, even if we don’t, why Mueller thinks it so important that Flynn lied, and so may have a very different understanding about the import of those lies.

Finally, note that along with requiring the government to turn over all the filings relating to his interview (not just the two Flynn selectively quoted from), Sullivan also instructed the government to file their reply to Flynn’s sentencing memo by the same time.

DOJ has never had the opportunity to write its own explanation for what happened with Flynn’s interview. By inviting a reply specifically in the context of this Flynn claim, Sullivan has given DOJ the opportunity to do just that, finally.

DOJ may have a very interesting explanation for why they approached a counterintelligence interview with a guy they might have considered one of them with jocularity.

Sure, there may yet be damning details. As I’ve said, I really look forward to learning why it took seven months to formally memorialize this interview.

But the GOP has been looking for a smoking gun for a year and have not apparently found one. It’s quite possible we’ll learn something else tomorrow, that Mike Flynn actually got special treatment that none of us would get if we were suspected of being recruited by Russian intelligence.

At the very least, Sullivan’s order may result in documentation that reveals just how shoddy all the claims irregularity surrounding Flynn’s interview have been all this time.

Update: Elevating this from pinc’s comment. If DOJ chooses to tell a story that at all resembles Greg Miller’s account of the meeting (including that Flynn specifically said he didn’t want to have a lawyer of any type present), then this could spectacularly backfire.

As I disclosed in 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. 

The Shiny Object of the May 2017 Russian Investigation: The Evidence Mostly Came in after August 1

There’s a reason today’s NYT story so infuriates me — to say nothing of Trump’s efforts to declassify documents from the Russia investigation that, because of the personnel moves of virtually everyone involved, would mostly end by August 1, 2017.

That’s because it’s clear that — because Peter Strzok lost an August 2016 battle to investigate more aggressively in summer and fall 2016 — DOJ, FBI, and then Mueller were only obtaining key information around about August 1, 2017, a year later. It’s no surprise, then, that (as the frothy right has been obsessing about recently) Lisa Page and Strzok weren’t sure if there was evidence of “collusion” on May 17, 2017. Of course they weren’t. The government hadn’t started collecting the evidence in earnest yet.

Consider the following investigative steps:

FBI appears not to have sent a preservation request to Government Services Administration for George Papadopoulos’ material until March 9, 2017, and they appear not to have pursued his privately held call records (especially the Facebook ones that would have revealed the existence of Ivan Timofeev) until some time later.

On June 6, 2017, the Mueller team was still debating whether they would access Section 702 materials, something they otherwise do routinely with assessments, to say nothing of fully predicated national security investigations.

The John Dowd letter wrongly claiming unprecedented cooperation reveals that Mueller started to receive the documents requested by congressional committees on July 21; that would presumably be the first that the government obtained the version of the June 9 emails that included Paul Manafort’s replies.

Copies of all documents provided to the committees by the Campaign, and all search term lists and the privilege log, were also provided to the Special Counsel.

  • By letter dated May 17, 2017, the Campaign received a request for documents from the Senate Select Committee on Intelligence (SSCI).
  • By letter dated June 7, 2017, the Campaign received a request for documents from the House Permanent Select Committee on Intelligence (HPSCI). The records requested included records generated from June 16, 2015, to 12pm on January 20, 2017, and hence, included the transition period.
  • The Campaign voluntarily responded to these requests by providing 840 documents on July 21, 2017, and another set of 4,800 documents on July 31, 2017. By letter dated July 19, 2017, the Campaign received a request for documents from the Senate Judiciary Committee (SJC).

Mueller sent a preservation request for Transition materials on June 22. He obtained all the emails and devices from 13 transition staffers in late August.

Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

The list of documents the White House provided, organized by Bates number, show that some key documents couldn’t have come in until July 2017. Indeed, documents pertaining to Comey’s firing appear to be the last of the document sets obtained, sometime after the disclosure of the June 9, 2016 meeting in July 2017.

BuzzFeed’s big scoop on financial transfers between Aras Agalarov and Ike Kaveladze around the time of the June 9 meeting shows banks didn’t start looking for such suspicious transfers until after the June 9 meeting was disclosed on July 8, 2017.

None of these transactions was discovered until 2017, after the New York Times revealed the Trump Tower meeting. Shortly after that report, investigators asked financial institutions to look back at their accounts to learn how money flowed among the people who planned and attended the meeting: Agalarov; Kaveladze; Agalarov’s pop star son, Emin; their employee, Rob Goldstone, who sent the original email to Trump Jr.; and others.

To unearth connections between some of their accounts, banks took an extraordinary step: They invoked a provision of the Patriot Act — a post-9/11 law that included new tools to track money laundering and terrorist financing. That provision, rarely used in the Trump-Russia investigation, allowed the banks to share information about customers with one another.

Three financial institutions — Citibank, JP Morgan Chase, and Morgan Stanley — discovered the $3.3 million that flowed from Agalarov to Kaveladze.

My interview with the FBI (I believe I was the second source about one aspect of what I shared, but believe I was the first about the stuff that tied more obviously to the campaign) was July 14. I believe my materials were moved under Mueller when Ryan Dickey got moved under Mueller in November, 2017.

So the constant six-year old soccer chases by journalists trying to learn what happened in May 2017 — when things were chaotic because Trump was breaking all norms and firing people who actually weren’t investigating that aggressively — to the detriment of attention on what happened in the months thereafter really does a huge disservice to the truth. The investigation into Trump’s conspiracy with Russia started in earnest around about August 1, 2017. Once the government actually started looking for evidence, I imagine the evidence of conspiracy was pretty obvious.

As I disclosed in 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. 

The NYT “Scoop” Appears To Be an Effort to Spin Opening an Investigation into Trump as an Erratic Act

I’d like to point out something strongly suggested by the stories based on gossiping about Andrew McCabe memos. These stories portray what people not at a meeting that took place just after Comey’s firing think happened at the meeting based off hearing about memos memorializing them. From the WaPo’s far more responsible version of the story, we know that Lisa Page was also present at the meeting.

Another official at the meeting, then-FBI lawyer Lisa Page, wrote her own memo of the discussion which does not mention any talk of the 25th amendment, according to a second person who was familiar with her account.

And the WaPo’s version of the “wire” comment puts it in context, making it clear that Rosenstein was questioning how they could investigate the President.

That person said the wire comment came in response to McCabe’s own pushing for the Justice Department to open an investigation into the president. To that, Rosenstein responded with what this person described as a sarcastic comment along the lines of, “What do you want to do, Andy, wire the president?”

Now go back to earlier in the week, to the frothy right rehashing some texts Page and Peter Strzok sent, talking about opening an investigation into … someone, while Andrew McCabe was Acting Director. (Apologies for the Fox slurs about Page and Strzok.)

Text messages from disgraced FBI figures Peter Strzok and Lisa Page, discussing whether to open a “case” in a “formal chargeable way” after Director James Comey was fired, are under fresh scrutiny after Page told congressional investigators there was no evidence of Russian collusion at the time, according to three congressional sources.

Two hours after Comey’s termination became public on May 9, 2017, Strzok, a now-former FBI agent, texted Page, his then-colleague and lover: “We need to open the case we’ve been waiting on now while Andy is acting.”

“Andy” is a reference to then-Deputy Director Andrew McCabe who temporarily took over the bureau until Christopher Wray was confirmed as director in August 2017.

Page, a former FBI attorney, replied to Strzok: “We need to lock in (redacted). In a formal chargeable way. Soon.”

Strzok concurred. “I agree. I’ve been pushing and I’ll reemphasize with Bill,” believed to be Bill Priestap, the head of the FBI’s counterintelligence division.

Finally, here’s the WaPo version of Michael Bromwich’s description of the memos.

McCabe’s lawyer, Michael Bromwich, said in a statement that his client “drafted memos to memorialize significant discussions he had with high level officials and preserved them so he would have an accurate, contemporaneous record of those discussions. When he was interviewed by the special counsel more than a year ago, he gave all of his memos — classified and unclassified — to the special counsel’s office. A set of those memos remained at the FBI at the time of his departure in late January 2018. He has no knowledge of how any member of the media obtained those memos.”

These are “significant memos” and went right to Mueller when he was appointed. The kind of memos that might back investigative decisions, such as whether to open an investigation into the President.

So what the NYT spin of the story is about is suggesting that at the moment when DOJ opened an investigation into the President, the guy who opened it was “acting erratically.” Presumably based off the third-hand opinions of people like Jim Jordan, who knows a bit about acting erratically. It’s also about whether a discussion of removing the President took place at the same meeting where a discussion of investigating him did.

Likely, the messages are muddled, because they always are when getting laundered through Jim Jordan’s feverish little mind.

Update: NYT has now updated their story with two details designed to rebut the more responsible reporting of other outlets. First, they cite their sources claiming — without having to explain — that Rosenstein spoke about recording the President on another occasion, with the suggestion that that time it wan’t sarcastic.

Mr. Rosenstein also mentioned the possibility of wearing a wire on at least one other occasion, the people said, though they did not provide details.

More remarkably, they include a paragraph that reveals their original story was inaccurate as to timing. To rebut WaPo’s report that Lisa Page’s version of events don’t include the reference to the 25th Amendment, the NYT has now decided there were “at least two meetings that took place on May 16” (but note the knowledge of their sources all appears to come from memos, not from witnessing the events).

At least two meetings took place on May 16 involving both Mr. McCabe and Mr. Rosenstein, the people familiar with the events of the day said. Mr. Rosenstein brought up the 25th Amendment during the first meeting of Justice Department officials, they said. He did not appear to talk about it at the second, according to a memo by one participant, Lisa Page, a lawyer who worked for Mr. McCabe at the time, that did not mention the topic.

Well, okay, maybe that’s true. But that utterly demolishes some key premises of the story as originally written. The story collapses the timing of all this, emphasizing that it happened just two weeks into the job.

Mr. Rosenstein was just two weeks into his job. He had begun overseeing the Russia investigation and played a key role in the president’s dismissal of Mr. Comey by writing a memo critical of his handling of the Hillary Clinton email investigation. But Mr. Rosenstein was caught off guard when Mr. Trump cited the memo in the firing, and he began telling people that hefeared he had been used.

[snip]

The president informed them of his plan to oust Mr. Comey. To the surprise of White House aides who were trying to talk the president out of it, Mr. Rosenstein embraced the idea, even offering to write the memo about the Clinton email inquiry. He turned it in shortly after.

A day later, Mr. Trump announced the firing, and White House aides released Mr. Rosenstein’s memo, labeling it the basis for Mr. Comey’s dismissal. Democrats sharply criticized Mr. Rosenstein, accusing him of helping to create a cover story for the president to rationalize the termination. [my emphasis]

All this suggests the response was a direct response to the Comey firing.

And while the story does note the meetings take place a week later, the update emphasizes the actual date.

A determined Mr. Rosenstein began telling associates that he would ultimately be “vindicated” for his role in the matter. One week after the firing, Mr. Rosenstein met with Mr. McCabe and at least four other senior Justice Department officials, in part to explain his role in the situation. [my emphasis]

The “wire the president” comment (and the 25th Amendment one, if it did happen as described) took place on May 16, almost a week later.

One week after the firing, Mr. Rosenstein met with Mr. McCabe and at least four other senior Justice Department officials, in part to explain his role in the situation.

In this update, the NYT also took out language about Rosenstein wondering about motive.

wondered whether Mr. Trump had motives beyond Mr. Comey’s treatment of Mrs. Clinton for ousting him, the people said.

By May 16, of course, Rosenstein wouldn’t have to wonder about Trump’s motives, because he had already gone on TV and explained what his motive was — it was to end the Russia investigation.

More troublingly, he had taken a meeting with Sergei Lavrov and Sergei Kislyak — the latter of whom was a key figure in any conspiracy investigation — without American press present at which he shared highly sensitive Israeli secrets. While the public didn’t know it yet, at the meeting Trump also said he fired Comey to ease the pressure on him.

More importantly, if there were two meetings — one on whether Trump was handling the FBI hiring properly, and one on whether to open an investigation into the President — then it means those different topics have a different meaning. One meeting was about whether Trump was capable of doing the job, the other was about whether he had broken the law.

Anyway, what we’re not getting is any real understanding of the real context of these comments.

Trump Wants Voters — and Russia — to Know What the Russia Investigation Looked Like on August 1, 2017, not September 14, 2018

Between setting the first status hearing in Paul Manafort’s case as November 16, and setting the Mike Flynn sentencing for no earlier than November 28 (with the reports submitted on November 14), Mueller’s office seems to be suggesting they’ll wait until after election day to roll out the case they just added Trump’s Campaign Manager’s testimony to.

Not long after the release of the Flynn status hearing, Trump ordered the release of yet more stuff on the Steele dossier (the stuff in the first paragraph), plus unredacted texts on what the investigation looked like before August 1, 2017.

At the request of a number of committees of Congress, and for reasons of transparency, the President has directed the Office of the Director of National Intelligence and the Department of Justice (including the FBI) to provide for the immediate declassification of the following materials: (1) pages 10-12 and 17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page; (2) all FBI reports of interviews with Bruce G. Ohr prepared in connection with the Russia investigation; and (3) all FBI reports of interviews prepared in connection with all Carter Page FISA applications.

In addition, President Donald J. Trump has directed the Department of Justice (including the FBI) to publicly release all text messages relating to the Russia investigation, without redaction, of James Comey, Andrew McCabe, Peter Strzok, Lisa Page, and Bruce Ohr.

Depending on how much the various parties put into these texts (I doubt Comey was much of a texter, for example), this will show unbelievable detail on how FBI runs counterintelligence investigations.

But it will also show voters what the investigation looked like before some key evidence came in, such as the communications surrounding the June 9 meeting and whatever the FBI seized from Paul Manafort’s home. Andrew McCabe was the last person in a key role on this investigation, and Christopher Wray took over that role on August 1.

It’s a desperate gambit, I think, throwing the last of the Steele dossier details out there, plus a picture of what the investigation looked like before the FBI learned that the President’s son entered into a conspiracy with Russians exchanging Hillary emails for sanction relief.

Which I take as yet more confirmation that that conspiracy — and whatever Manafort just gave the government — would (will, eventually) utterly damn the President.

As I disclosed in 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.