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America’s Whimpering Democracy Is Trump’s Past, as Well as Future

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There was a bit of a kerfuffle yesterday in response to an Erik Wemple claim that the media has not shirked media coverage of the risk posed by Trump while focusing non-stop on Biden’s (but not Trump’s) age.

Wemple made a list — and given the prevalence of lefty columnists, not a particularly impressive one, once you look closely.

But it also betrays the degree to which journalists have the same blind spots I have noted in NYT’s series on the subject (which makes up 15 entries in Wemple’s list): they ignore or understate how much of this Trump did in his first term and continues to do it via his right wing allies in Congress.

Charlie Savage, Maggie Haberman, and Jonathan Swan keep teaming up to write the same story over and over: A second Trump term is going to be bad … really bad.

Just some of these stories, in reverse order from Tuesday’s latest installment, are:

There are several aspects to these stories: a bid to eliminate civil service protections, a personalization of power, and the elevation of people who proved willing to abuse power in his first term: Russel Vought (who helped obstruct the Ukraine investigation), Stephen Miller, and Johnny McEntee (who even before January 6 was making a willingness to invoke the Insurrection Act a litmus test for hiring at DOD), and Jeffrey Clark.

The series, thus far, skirts the language of authoritarianism and fascism.

[snip]

These stories admit that Trump did some of this in his first term. But they describe a process of retribution by the guy who got elected — with abundant assistance from Maggie Haberman — on a platform of “Lock her up!,” who breached the norm of judicial independence 24 days into office when he asked Jim Comey to “let this” Mike Flynn “thing go,” as something that took a while to “ramp up.”

[snip]

[T]hese pieces always vastly understate how much politicization Trump pulled off in his first term, and never describe how that politicization continues at the hands of people like Jim Jordan.

Such reporting will be most salient, I believe, if reports show voters the costs of such abuses of the judicial system have already had and are already having.

Even as the kerfuffle was unrolling, Rosa Brooks published a piece in The Bulwark describing the lessons from a series of five nonpartisan simulations on how American democracy might fare if Trump wins in November.

The simulations showed that the risk Trump poses isn’t necessarily the immediate totalitarianism or civil war liberals sometimes raise, but instead targeted persecution against those who speak up.

The exercises produced some “good news”: None of the simulations devolved into mass violence or civil conflict, and Team Trump found it difficult to fully execute its most ambitious plans. For instance, in one of our exercises, Trump’s efforts to detain millions of undocumented migrants floundered; the money and infrastructure for such a massive operation proved too challenging.

[snip]

High-profile nonprofit groups are undergoing IRS audits, forcing their senior staff to spend most of their time huddled with accountants and lawyers. More university presidents have resigned in the face of investigations, audits, and threats to yank federal funding over curricula and the actions of student protests. Meanwhile, a number of high-profile journalists are the targets of leak investigations. The owners of several major media outlets are under investigation for specious criminal tax code violations, and the FCC is considering revoking the broadcast licenses of a dozen television stations. Liz Cheney, Adam Schiff, and retired Gen. Mark Milley are under investigation for allegedly mishandling classified materials.

The nation’s streets are largely peaceful. But around the country, numerous civil servants, reporters, teachers, librarians, election officials, and other community leaders are being doxxed and threatened.

You can imagine how this unfolds. Most people will see the writing on the wall: Speak out, and life becomes unpleasant. Your address and children’s names will be posted on social media. You’ll get a nasty letter from the IRS. Perhaps your brother’s undocumented girlfriend will go to work one day and never come home, and you won’t know if she’s been detained or deported. Your pregnant niece might be stopped by police as she drives from Texas to New Mexico, and grilled about whether she’s heading to an abortion clinic. Maybe the FBI and Homeland Security will use undercover agents—or even government surveillance capabilities—to spy on organizations from school boards to church groups, in search of “illegals,” “Christian-hating communists,” the “woke,” and other “vermin.”

The chilling effect on our politics would be intense. Ordinary citizens would self-censor. Many federal, state, and local leaders, rightly worried about the effects on themselves and their families, will quietly step down from their roles.

Definitely read the piece. As you do, though, consider the ways that this, too, is a story of Trump’s past and present, not just his future.

Just yesterday, for example, FBI’s Deputy Direct Paul Abbate said that he “absolutely did not” sign off on the settlement of Peter Strzok and Lisa Page’s lawsuits and “would never sign off on something like that.”

The allegations in the Privacy Act part of the complaint — the only part included in the settlement — show that before the misconduct allegations against Peter Strzok had been resolved, someone shared his texts with the White House, which in turn got leaked to the press before Sarah Isgur released them en masse, with Rod Rosenstein’s approval.

59. Between late July and December 2017, someone from the Department of Justice alerted the White House to the existence of these texts and, at least, their general content. On information and belief, officials in the White House, in turn, began to contact members of the news media about the texts as a means to try to undermine the Special Counsel’s investigation.

60. No later than December 2, 2017, at least two news organizations printed stories including characterizations of the contents of some of Special Agent Strzok’s texts.

[snip]

62. On December 12, 2017, DOJ willfully and intentionally disclosed to numerous news outlets approximately 375 text messages to, from, and about Special Agent Strzok. In a press release, DOJ called this act a “public release” of the messages.

Years ago, I was told this was a clear violation of the Privacy Act. Having gone through discovery, DOJ appears to agree.

By saying he would never sign a settlement with someone targeted in violation of the law, Abbate was (wittingly or not) stating an unwillingness to make things right after the government violates the rights of a long-valued FBI employee. And Abbate has to know that there are plenty of right wing agents who never got disciplined for sending pro-Trump texts on their phones, including the agents who handled one of the informants targeting the Clinton Foundation.

Republicans threw a similar tizzy fit after DOJ settled Andrew McCabe’s lawsuit for a similar violation of his rights — in that case, of his due process rights. And in McCabe’s case, granting McCabe’s due process would likely have revealed that the allegations he willfully lied about his role in a story that exposed the investigation into the Clinton Foundation were unproven.

The time to stand up to the kind of individualized targeting that Trump has long used is now, was last year, was seven years ago, when the extended campaign to turn Strzok and Page into the face of the Deep State first began.

Waiting to learn the outcome of the election is a cop out.

The time to catalog the damage Trump has already done by the kind of treatment the Bulwark projects in the future is now. All the more so given that its anonymous participants, described to include “former senior officials from President Trump’s first administration, along with former senators and members of Congress,” surely include a number of people who’ve received this treatment. If the way to combat Trump involves solidarity to prevent this isolating doxxing, then such a group is precisely the kind of group that should set an example.

LOLGOP and I are working on a podcast episode that talks about all the people at the FBI that Trump targeted: in addition to Strzok and Page, McCabe and Jim Comey, every person mentioned in the Carter Page IG Report, a number of key witnesses in the Durham investigation, often leveraged to cultivate the testimony Durham needed to sustain his conspiracy theory. That retaliation did real damage to the FBI’s expertise on Russia.

But it has continued even since Trump left office. After first being investigated in the wake of the IG Report, a top Russian analyst, Brian Auten, remains a target because he tracked Russia efforts to influence the 2020 election. Laura Dehmlow — then a unit chief in FBI’s Foreign Influence Task Force and now the Deputy Director of the National Counterintelligence Center, was bullied because she didn’t come out and say that the FBI had obtained a laptop attributed to Hunter Biden from a computer repairman (which remains inconclusive regarding any Russian influence). Tim Thibault, who in 2016 was one of the people who predicated investigations of the Clinton Foundation, was targeted in part because he made the decision — at the request of FBI agents trying to preserve the integrity of the Hunter Biden investigation — to shut down Peter Schweizer as an informant. Elvis Chan, long one of the most important FBI agents in fighting Russian hacking, was misrepresented as part of the Twitter Files, and ever since, the House GOP has been demanding he sit for a deposition either represented by his personal lawyer or the FBI’s lawyer.

Other members of the “Deep State” that Trump or his flunkies have targeted include:

  • The 51 former spooks who signed a letter stating that the release of the Hunter Biden laptop before the 2020 elections “has the earmarks of a Russian information operation”
  • Witnesses at either of Trump’s impeachments
  • January 6 Committee witnesses and members
  • Capitol Hill Police who testified in January 6 trials
  • Witnesses in the Durham investigation
  • Former Trump officials who’ve spoken out against Trump (again, these likely include some participants in Bulwark’s simulations)
  • Members of the Hunter Biden investigative team, including those who were engaged in the more aggressive targeting of him
  • Every judge, prosecutor, and identified FBI agent who has investigated Trump (note: Aileen Cannon was also targeted)
  • Judges who’ve overseen January 6 trials or those of Trump’s associates
  • Those who didn’t support Jim Jordan as speaker

This has a noticeable effect. Not only does Abbate (along with Chris Wray) cow before Congress rather than explain that Trump’s Administration violated the law, which has repercussions, but it led the FBI to hesitate before going after Trump and his people both before January 6 and during the stolen documents case.

There are those outside of government, too.

A sustained campaign to shut down efforts, both within and outside social media companies, to limit mis- and disinformation has led many programs and experts to quit, largely after sustained doxing and disinformation campaigns.

Perhaps most alarmingly, Trump and his mob have targeted election administrators around the country, both prominent and not. Even if Kamala Harris wins more votes than Trump in November, there are known localities and states where there’s real question whether election denying voting officials will certify the vote. Patrick Byrne has even started issuing death threats against those prosecuting Tina Peters for tampering with election equipment back in 2020.

This is not just about loyalty. This is not just about cowing law enforcement. This is not just retribution — though that serves as cover.

Particularly taking account of the election workers targeted in service of Trump’s Big Lie, this must be understood as systematic: an attack on particular institutions and norms of liberal society: the rule of law, elections, and truth.

We don’t have the luxury of waiting until after November to start defanging the right wing’s stochastic terrorism. That’s true, because they’ll be using it to stoke fear leading up to the election. That’s true because Jim Jordan still has three months wielding a gavel to elicit lynching threats. But it’s also true because the guy managing the FBI is so afraid of Congress that he’s unwilling to say that people selectively targeted for such treatment by Donald Trump are entitled to due process.

DOJ Settles Privacy Act Lawsuit, Prepares for Peter Strzok’s Amended Complaint

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Donald Trump is already furious with Christopher Wray — because he testified that Joe Biden retains his faculties, because he revealed that Trump might have been hit by a fragment of the bullet shot at him.

And now, because DOJ has begun to reverse Trump’s six year war on Peter Strzok.

Yesterday, DOJ settled the Privacy Act lawsuits of both Strzok and Lisa Page.

According to Politico, Strzok will get $1.2 million (of which $200,000 would be a downpayment if Amy Berman Jackson awards him anything further on his remaining claims) and Page will get $800,000.

On Friday, Strzok’s lawyers announced his $1.2 million agreement as attorneys for both sides notified a federal judge in Washington that the privacy-focused portion of that dispute was resolved.

[snip]

Page, who resigned amid the controversy, settled her own Privacy Act claim with the department Friday. Copies of the settlement agreements for Strzok and Page obtained by POLITICO indicate Page is to receive $800,000. The documents state that the U.S. government is not admitting or conceding legal liability.

Strzok has filed an amended complaint, with the Privacy Act violations redacted, leaving two more claims:

  • Unlawful termination in violation of his First Amendment
  • Violation of due process under the Fifth Amendment

But the two sides are apparently already fighting about what happens next, in part because DOJ provided discovery yesterday, seemingly showing that in 2022 (in the wake of the Andrew McCabe settlement), FBI instituted a new policy giving the Deputy Director authority to override a final settlement determination from Office of Professional Responsibility.

As an initial matter, Defendants produced additional documents just before 1:00 pm today, July 26th. Mr. Strzok is in the process of evaluating those documents and considering the impact of their belated production on testimony that was—and was not—obtained in this case. One of the documents is dated March 2022 and appears critical. It delegates from the FBI Director to the FBI Deputy Director the power to impose summary dismissals and to overrule disciplinary decisions issued by the FBI’s Office of Professional Responsibility (“OPR”). Mr. Strzok has long argued that the Deputy Director could not possibly overturn a binding last chance agreement executed between an employee and the FBI OPR Assistant Director acting for and on behalf of the FBI. Mr. Strzok has further argued that even if the Deputy Director could have had that power, he did not have it in 2018. Today’s production appears to confirm Mr. Strzok’s argument. Counsel for all parties conferred this afternoon regarding the potential remedies for this belated production, and the parties will continue to confer to determine whether a request for additional relief from the Court is necessary.

That would seem to help Strzok’s case, proving that when David Bowdich fired him, he was not permitted to override OPR.

More telling, DOJ wants to draw out briefing such that even if Strzok files right away, this won’t be fully briefed until after whoever wins in November is inaugurated.

Strzok argues that Amy Berman Jackson can rule in favor of his due process claim right away. The viewpoint discrimination claim, though, could get interesting, as there are allegedly other FBI agents who sent pro-Trump texts on their phones, with no discipline. And that’s where Strzok argues he’ll prove that he was fired because Trump demanded it.

[T]here is a significant dispute of material fact as to Deputy Director Bowdich’s rationale and motive for terminating Mr. Strzok’s employment. That disputed issue pins Bowdich’s version of events against a mountain of evidence indicating that he fired Mr. Strzok because of the demands of former President Trump and Bowdich’s own politics and interests.

But again, DOJ intends to push this out past the election (and these initial filings would be largely redacted under the protective order).

Kash Patel’s Deep State: How Trump Trained the GOP to Hate Rule of Law 2

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I realized after I wrote my first post on how Trump trained Republicans to hate rule of law that I didn’t lay out what I meant by that. After all, that first post showed that for decades before Trump ran for President, Republicans were already willing to gin up criminal investigations against people named Clinton for political gain.

If that’s the baseline, what did Trump change? And to what degree was that change driven by Russian interference, which I argued did little more than drop a match on an already raging bonfire in 2016?

So I want to show the trajectory, using this Politico piece about the concerns a bunch of spooks have about Trump’s plans to remake the Deep State in his image. The story is not all that new — there have been a bunch of stories that included Trump’s goal to remake the Deep State in his image, both during his Administration and in more recent descriptions of Trump’s plans for a second term. But it does certain things that make it helpful to explain what I mean.

The spooks described three concerns with Trump in a second term. He would:

  • Selectively ignore intelligence on certain issues [cough, Russia], blinding the Intelligence Community and weakening our collective alliances
  • Leak [more of] America’s secrets
  • Staff the agencies with loyalists

POLITICO talked to 18 former officials and analysts who worked in the Trump administration, including political appointees from both parties and career intelligence officers, some who still speak to the former president and his aides and had insight into conversations about his potential second term. A number of them were granted anonymity to avoid provoking backlash and to speak freely about their experience working with him. Others are now vocal Trump critics and spoke publicly.

“He wants to weaponize the intelligence community. And the fact is you need to look with a 360 degree perspective. He can’t just cherry pick what he wants to hear when there are so many U.S. adversaries and countries that don’t wish the U.S. well,” said Fiona Hill, a top Russia adviser on the National Security Council in Trump’s administration who has regularly criticized his policies. “If he guts the intel on one thing, he’ll be partially blinding us.”

Many of the former officials said they opted to speak to POLITICO because they believe the extent to which Trump could remake the intelligence community remains — despite the copious media coverage — underestimated.

Trump’s demands for “loyalty” — often read as a demand to skew findings to fit his political agenda — have not been limited to his spy agencies, but in the intelligence world, those demands carry particularly dire risks, they said.

If Trump is cavalier with his treatment of classified information or material — as alleged in a June 2023 indictment of the former president — it could endanger those who supply much-needed intelligence, said Dan Coats, who served as director of national intelligence early in Trump’s tenure.

Kash Patel gets special mention as someone who would both burn intelligence and spin fantasies by Politico.

Kash Patel, former top adviser to Devin Nunes, a former representative from California, and director of counterterrorism at the National Security Council, served as an informal adviser to Grenell but was also considered for a top post at the CIA. He later became chief of staff to the acting secretary of defense in Trump’s final months. Patel also helped advise on an initiative to declassify material related to the origins of the Russia investigation.

Patel is likely to return to serve under Trump if he is elected, raising worries among current and former intelligence officials about the preservation of sources and methods of U.S. intelligence.

“There were often a lot of appointments that seemed designed to make sure that the intelligence assessments could be shaped to paint certain pictures that simply didn’t match up with what the intelligence community had come up with,” said one former Trump administration intelligence official.

The guy who rose to prominence by turning an investigation into a Russian attack on democracy into a counterattack on the FBI, the guy who spends his time writing children’s books in which he, Kash, protects his liege from imaginary threats from the Deep State, is presumed to be the future steward of Trump’s efforts to politicize the intelligence community.

You could argue that the replacement of civil servants with Trump partisans in the IC is little different than what Trump plans everywhere else in government, if he’s elected. That’s true with regards to the means — gutting civil service protections and replacing them with loyalty oaths to a person rather than the Constitution. But not the effect.

One reason Trump floated putting Kash in charge of the FBI, after all, was because efforts to punish Trump’s enemies weren’t producing the results he desired. The Durham investigation didn’t exact revenge on FBI figures like Jim Comey, Andrew McCabe, and Peter Strzok; when it finished, Kash complained that it “failed” precisely because people who tried to protect the country from Russia weren’t prosecuted for doing so. Five years of investigating the Clinton Foundation failed to find a chargeable crime. After he left government, a Kash Patel charity started funding right wing FBI agents accused of the same thing McCabe and Comey were — improper disclosures — but did so to discredit investigations into the right wing.

An IC led by Kash Patel would not just be a politicized intelligence community, intentionally blinded to the threat from countries like Russia, and by degrading intelligence on certain adversaries corroding the alliances built on that shared intelligence.

But it would be an instrument for exacting loyalty.

That instrument can and would be targeted at disloyal Trump party members. Look at efforts by the GOP House to investigate Cassidy Hutchinson, for example.

It’s not just Jack Smith or Nancy Pelosi’s spouses who get targeted with threats for challenging Trump, but also Don Bacon’s.

This, then, is the trajectory along which Trump has coaxed Republicans. At first, a goodly many Republicans defended the integrity of the Mueller investigation, until they didn’t anymore. With the first impeachment, virtually all Republicans excused Trump’s defiance of their own appropriations choices. With the second, reportedly fearful Republicans made excuses for an attack that threatened their own lives rather than fulfill their constitutional duty to check Trump. Since then, Trump has used his legal woes not only as an electoral plank, but also as leverage to demand that the party continue to pay his bills, diverting funds that otherwise might help to reelect down-ticket candidates.

What used to be the Grand Old Party has become, literally, a criminal protection racket serving one man.

The fate of the party depends on that man defying the law.

In a post examining why Elise Stefanik might have parroted Trump’s assertion that January 6 felons were, instead, hostages, I laid out a taxonomy of potential motives that would convince Republicans to follow Trump down this path. Aside from ideological true believers, I think Republicans are motivated because they’ve fallen for Trump’s grift, they’re afraid, or they calculate they can stay on Trump’s good side long enough to advance their career.

One way or another, a series of individual choices brought Trump’s party to this point.

Moments ago, Mitch McConnell endorsed a man who launched a terrorist attack targeting, among others, McConnell himself.

A series of individual choices have brought the party that used to be Mitch McConnell’s to this point.

Update Mike “Moses” Johnson is bragging about defunding the FBI and DOJ.

NYT Keeps Downplaying Trump’s Past Retribution Tour

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Charlie Savage, Maggie Haberman, and Jonathan Swan keep teaming up to write the same story over and over: A second Trump term is going to be bad … really bad.

Just some of these stories, in reverse order from Tuesday’s latest installment, are:

There are several aspects to these stories: a bid to eliminate civil service protections, a personalization of power, and the elevation of people who proved willing to abuse power in his first term: Russel Vought (who helped obstruct the Ukraine investigation), Stephen Miller, and Johnny McEntee (who even before January 6 was making a willingness to invoke the Insurrection Act a litmus test for hiring at DOD), and Jeffrey Clark.

The series, thus far, skirts the language of authoritarianism and fascism.

At the core of the stories is that Trump is going to use a second term for retribution, to which the June 15 article is dedicated.

When Donald J. Trump responded to his latest indictment by promising to appoint a special prosecutor if he’s re-elected to “go after” President Biden and his family, he signaled that a second Trump term would fully jettison the post-Watergate norm of Justice Department independence.

“I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Mr. Trump said at his golf club in Bedminster, N.J., on Tuesday night after his arraignment earlier that day in Miami. “I will totally obliterate the Deep State.”

These stories admit that Trump did some of this in his first term. But they describe a process of retribution by the guy who got elected — with abundant assistance from Maggie Haberman — on a platform of “Lock her up!,” who breached the norm of judicial independence 24 days into office when he asked Jim Comey to “let this” Mike Flynn “thing go,” as something that took a while to “ramp up.”

In his first term, Mr. Trump gradually ramped up pressure on the Justice Department, eroding its traditional independence from White House political control. He is now unabashedly saying he will throw that effort into overdrive if he returns to power.

Mr. Trump’s promise fits into a larger movement on the right to gut the F.B.I., overhaul a Justice Department conservatives claim has been “weaponized” against them and abandon the norm — which many Republicans view as a facade — that the department should operate independently from the president.

Yet even though Savage did some important reporting on some of this (reporting that was counterbalanced by Maggie’s central role in helping Trump obstruct criminal investigations), these pieces always vastly understate how much politicization Trump pulled off in his first term, and never describe how that politicization continues at the hands of people like Jim Jordan.

In the spring of 2018, Mr. Trump told his White House counsel, Donald F. McGahn II, that he wanted to order the Justice Department to investigate his 2016 rival, Hillary Clinton, and James B. Comey Jr., the former head of the F.B.I. Mr. McGahn rebuffed him, saying the president had no authority to order an investigation, according to two people familiar with the conversation.

Later in 2018, Mr. Trump publicly demanded that the Justice Department open an investigation into officials involved in the Russia investigation. The following year, Attorney General William P. Barr indeed assigned a Trump-appointed U.S. attorney, John Durham, to investigate the investigators — styling it as an administrative review because there was no factual predicate to open a formal criminal investigation.

Mr. Trump also said in 2018 and 2019 that John F. Kerry, the Obama-era secretary of state, should be prosecuted for illegally interfering with American diplomacy by seeking to preserve a nuclear accord with Iran. Geoffrey S. Berman, a former U.S. attorney in Manhattan whom Mr. Trump fired in 2020, later wrote in his memoir that the Trump Justice Department pressured him to find a way to charge Mr. Kerry, but he closed the investigation after about a year without bringing any charges.

And as the 2020 election neared, Mr. Trump pressured Mr. Barr and Mr. Durham to file charges against high-level former officials even though the prosecutor had not found a factual basis to justify any. In his own memoir, Mr. Barr wrote that the Durham investigation’s “failure to deliver scalps in time for the election” eroded their relationship even before Mr. Barr refused Mr. Trump’s baseless demand that he say the 2020 election had been corrupt.

Where Mr. Trump’s first-term efforts were scattered and haphazard, key allies — including Jeffrey B. Clark, a former Justice Department official who helped Mr. Trump try to overturn the 2020 election — have been developing a blueprint to make the department in any second Trump term more systematically subject to direct White House control.

This effort was in no way haphazard!!! Most FBI personnel involved in the Russian investigation, from Jim Comey down to line analysts, had their careers systematically ruined, with Peter Strzok (who, the actual record of the Russian investigation shows, repeatedly took steps to protect Trump and Mike Flynn, even if he disliked Trump) offered up as an example of what will happen to people who don’t meekly just accept their punishment or, better yet, retreat to the private sector. The exceptions were the cyber guys who completely bolloxed the Alfa Bank investigation and people like Bill Barnett, who misrepresented the steps he himself took to provide “proof” of corruption on the Mueller investigation. That precedent has been sustained as right wingers take out other FBI agents deemed insufficiently loyal, like Tim Thibault, who personally opened an investigation into the Clinton Foundation in 2016 but who was targeted last year because in 2020 he didn’t mainline disinformation about Hunter Biden.

Yes, Bill Barr ordered Geoffrey Berman to investigate John Kerry. But he also set up a complex, systematic structure to halt  any investigation into Rudy Giuliani so the President’s lawyer could get dirt from Russian spies, feed it to Scott Brady, who would then push that information into the investigations of Hunter Biden and others. When Berman and Jessie Liu refused to break (after a good deal of bending to Barr’s will), he fired them both.

Barr didn’t just pressure John Durham to prosecute high-level people: He skipped, hand-in-hand, with Durham as they used Russian intelligence to fabricate an attack on Hillary Clinton, the organizing logic of an investigation that swept up private sector people and who had the temerity to research Donald Trump or — worse!! — to help Hillary recover from a hack-and-leak. The effort even took out academic researchers who were simply trying to keep the US safe from Russian hacking. Trump did get DOJ to investigate Hillary, with investigations lasting the entirety of his presidency, and that investigation included precisely the kind of fabricated evidence and coached testimony that NYT imagines is a hypothetical left for Trump’s second term.

To the extent these stories talk about Trump’s pardons, they do so prospectively. There’s no discussion of how the pardons of Mike Flynn and Roger Stone rival any of the most corrupt in US history, but were necessary to prevent DOJ from developing proof that Trump conspired with Russia.

These articles don’t describe how Congress has served as a wing of this politicization, from the leaks to Mike Flynn in 2018 about how to undermine his own investigation to sham hearings — like the one with George Papadopoulos unencumbered by the documents that would have provide evidence of “collusion,” in which he spewed out conspiracy theories that Bill Barr and John Durham quickly got on a plane to chase. These articles don’t describe how the current unrelenting attempt to manufacture an impeachment out of the detritus of Hunter Biden’s life could not have happened if Bill Barr hadn’t made very systematic attempts to enable Trump’s retribution tour in 2020.

And these articles don’t describe the violent threats that have become routine for anyone deemed insufficiently loyal to Donald Trump. The threats Trump deployed against Lisa Page and Marie Yovanovitch — “she’s going to go through some things” — exist on an unrelenting continuum as the threats against Ruby Freeman and Lesley Wolf and Fani Willis and Don Bacon’s wife.

Yes, it’s important to warn about what Trump plans to do with a second term. But calling Trump’s past retribution “haphazard” is a journalistic cop-out, a way to avoid admitting that we don’t yet fully understand how systematic Trump’s past retribution was or — worse — don’t want to come to grips with our own central role in it.

For a warning to be effective, we have to show the human costs of all the past retribution — the thousands of Jan6ers who had their lives ruined, the significant degradation in US national security, the fear, especially the fear among Republicans — costs that no one, no matter how loyal, will ultimately escape.

Buried in DOJ’s Absolute Immunity Response, a Comment on Trump’s Suspected Zenith Crimes

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Earlier this month, Trump’s DC team filed a motion to dismiss his January 6 indictment based on a claim of absolute immunity, an argument that Presidents cannot be prosecuted for things they did while President.

To get a sense of how shoddy Trump’s argument was, you need only compare the number of citations to these cases:

  • Nixon v. Fitzgerald, which found Presidents had absolute immunity against civil lawsuits for things that fall within their official duties
  • US v. Nixon, which found that the same President who had absolute immunity from civil suit could not use Executive Privilege to withhold evidence from a criminal prosecution
  • Trump v. Vance, which held that Trump, while still President, was not immune from a criminal subpoena
  • Thompson v. Trump, in which SCOTUS upheld a DC Circuit Opinion that upheld a Tanya Chutkan opinion that the events of January 6 overcame any Executive Privilege claim Trump might make to withhold documents from Congress, a far higher bar than withholding them from the FBI

Trump’s absolute immunity claim was a shoddy argument, but you never know what this SCOTUS would rubber stamp, even considering its cert denial in Thompson v. Trump and questions about whether Clarence Thomas (who did not recuse in that case, but did in John Eastman’s appeal of a crime-fraud ruling against him) would be shamed into recusing in this one.

Shoddy argument and all, there was never going to be a way to carry out the first-ever prosecution of a former President without defeating an absolute immunity claim.

In general, DOJ’s response is much more adequate than Trump’s motion to the task of laying out one side of an argument that will ultimately be decided by a very partisan Supreme Court. But it is written as the first response in what will be, whatever the outcome, a historic ruling.

Before it spends ten pages addressing Trump’s application of Nixon v. Fitzgerald, it spends ten pages laying out the constitutional framework in question. In a section addressing Trump’s claim that his impeachment acquittal on January 6 charges meant he could not be charged for related crimes, DOJ notes that Trump argued at the time, that as a former President, the Senate no longer had jurisdiction to hold an impeachment trial. Then it cites the many Republican Senators who used that stance to justify their own acquittal votes. It notes that the Nixon pardon and the Clinton settlement both presumed potential exposure to prosecution once they became former Presidents.

Out of necessity, the Fitzgerald section adopts an analogy from that precedent to this one: In the same way that Fitzgerald likened the President to prosecutors and judges who enjoy immunity for their official acts, Fitzgerald did not immunize those same prosecutors and judges from other crimes. At a time of increased focus on undeclared gifts that Clarence Thomas has accepted from people with matters before the court and after a Sam Alito interview — with someone who has matters before the court — in which he claimed separation of powers prohibited Congress from weighing in on SCOTUS ethics, DOJ cited the 11th Circuit opinion holding that then-Judge Alcee Hastings could be prosecuted. That is, whatever the outcome of this dispute, it may have implications for judges just as it will for Presidents.

Only after those lengthy sections does DOJ get into the specifics of this case, arguing:

  • By misrepresenting the indictment in a bid to repackage it as acts that fit within the President’s official duties, Trump has not treated the allegations as true, as Motions To Dismiss must do
  • Trump’s use of the Take Care Clause to claim the President’s official duties extend to Congress and the states is not backed by statute
  • Because Trump is accused of conspiring with people outside of the government — unsurprisingly, DOJ ignores the Jeffrey Clark allegations in this passage (CC4), but while it invokes Rudy Giuliani (CC1), John Eastman (CC2), Kenneth Chesebro (CC5), and Boris Epshteyn (CC6), it is curiously silent about the allegations pertaining to Sidney Powell (CC3) — the case as a whole should not be dismissed

In total, DOJ’s more specific arguments take up just six pages of the response. I fear it does not do as much as it could do in distinguishing between the role of President and political candidate, something that will come before SCOTUS — and could get there first — in the civil suits against Trump.

And its commentary on Trump’s attempt to use the Take Care Clause to extend the President’s authority into areas reserved to the states and Congress is, in my opinion, too cursory.

The principal case on which the defendant relies (Mot. 35-36, 38, 43-44) for his expansive conception of the Take Care Clause, In re Neagle, 135 U.S. 1 (1890), cannot bear the weight of his arguments. In Neagle, the Supreme Court held that the Take Care Clause authorized the appointment of a deputy marshal to protect a Supreme Court Justice while traveling on circuit even in the absence of congressional authorization. Id. at 67-68; see Logan v. United States, 144 U.S. 263, 294 (1892) (describing Neagle’s holding); Youngstown Sheet & Tube, 343 U.S. at 661 n.3 (Clark, J., concurring) (same). Before reaching that conclusion, the Court in Neagle posed as a rhetorical question—which the defendant cites several times (Mot. 35, 38, 43, 44)—whether the president’s duty under the Take Care Clause is “limited to the enforcement of acts of congress or of treaties of the United States according to their express terms; or does it include the rights, duties, and obligations growing out of the constitution itself, our international relations, and all the protection implied by the nature of the government under the constitution?” 135 U.S. at 64. From the undisputed proposition that the president’s powers under Article II are not limited only to laws and treaties, it does not follow, as the defendant seems to imply, that every “right, duty, or obligation[]” under the Constitution is necessarily coterminous with the president’s powers under the Take Care Clause. Under that theory, for example, the president could superintend Congress’s constitutional obligation to keep a journal of its proceedings, U.S. Const. art. I, § 5, cl. 3, or the judiciary’s duty to adjudicate cases and controversies, U.S. Const. art. III, § 2, cl. 1.

The 11th Circuit and then SCOTUS will be facing a similar, albeit better argued, Take Care Clause argument when they review Mark Meadows’ bid to remove his Georgia prosecution. You’d think DOJ could do better — or at the very least note that Trump abdicated all premise of upholding the Take Care Clause during a crucial 187 minutes when his mob was attacking the Capitol.

All that said, I’m as interested in this response for the associated arguments — the seemingly hypothetical ones — such as the one (already noted) that in weighing this argument, the Supreme Court may also have to consider, again, whether they themselves are immune from prosecution for bribery.

It’s not just Clarence Thomas whose actions this fight could implicate.

In two places, DOJ uses hypotheticals to talk about other Presidential actions that might be crimes, rather than focus on the specifics of the case before Judge Chutkan.

For example, DOJ points to the possibility that a President might trade a pardon — a thing of value — as part of a quid pro quo to obtain false testimony or prevent true testimony.

For example, where a statute prohibits engaging in certain conduct for a corrupt purpose, the statute’s mens rea requirement tends to align, rather than conflict, with the president’s Article II duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, which would weigh heavily against the need for immunity. To illustrate, although the president’s power to grant pardons is exclusive and not subject to congressional regulation, see United States v. Klein, 80 U.S. (13 Wall.) 128, 147-48 (1872), criminal immunity should not shield the corrupt use of a presidential pardon—which plainly constitutes “anything of value” for purposes of the federal bribery statute, see 18 U.S.C. § 201(b)(3)—to induce another person to testify falsely or not to testify at all in a judicial, congressional, or agency proceeding.

Less than five years ago, of course, Roger Stone was telegraphing that prosecutors had offered him leniency if he would testify about dozens of conversations that he had with Trump during the 2016 election. Less than five years ago, the newly cooperative Sidney Powell first asked Trump to hold off on pardoning Mike Flynn, only to welcome a Trump pardon of Flynn while Powell and Flynn plotted ways to steal the election. Less than five years ago, Trump gave a last minute pardon to Steve Bannon, who currently faces four months of prison time because he refused to testify to Congress.

I’m not saying DOJ will revisit these pardons, all of which fit squarely within such a quid pro quo description. I’m noting that if the argument as a whole survives, this part of it may also survive.

The same is true of an even splashier passage. A paragraph describing the implications of Trump’s claim to absolute immunity lays out what some commentators have taken as hyperbolic scenarios of presidential corruption.

The implications of the defendant’s unbounded immunity theory are startling. It would grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member; a president who instructs his FBI Director to plant incriminating evidence on a political enemy; a president who orders the National Guard to murder his most prominent critics; or a president who sells nuclear secrets to a foreign adversary. After all, in each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy—and his felonious purposes and motives, as the defendant repeatedly insists, would be completely irrelevant and could never even be aired at trial. In addition to the profoundly troubling implications for the rule of law and the inconsistency with the fundamental principle that no man is above the law, that novel approach to immunity in the criminal context, as explained above, has no basis in law or history.

These seemingly extreme cases of crimes a President might commit, crimes that everyone should agree would face prosecution, include (these are out of order):

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

Like the pardon discussion above, these hypotheticals — as Commander-in-Chief, with the conduct of foreign policy, with the treatment of classified materials — invoke actions where DOJ typically argues that the President is at the zenith of his power.

We have no reason to believe that Trump ordered the National Guard, specifically, to murder his critics. But we do know that on January 3, 2021, Trump proposed calling out 10,000 members of the National Guard to “protect” his people and facilitate his own march on the Capitol.

And he just cut me off, and he goes, well, we should call in the National Guard.

And then I think it was Max who said something to the effect of, Well, we should only call in the Guard if we expect a problem. And then the President says, no, we should call in the Guard so that there aren’t – so that there isn’t a problem. You know, we need to make sure people are protected.

And he said – he looked over at Max, and I don’t know if somebody was standing behind him or not. He just looked the other way from me and says, you know,  want to call in 10,000 National Guard. And then  opened my folder and wrote down 10,000 National Guard, closed my folder again.

We know that days later Mark Meadows believed the Guard would be present and Proud Boy Charles Donohoe seemed to expect such protection.

Similarly, we don’t know of a specific instance where Trump ordered an FBI agent to plant information on his political enemy. But we do know that as part of a Bill Barr-directed effort to reverse the Mike Flynn prosecution in 2020, misleading dates got added to the notes of Trump’s political enemies, Peter Strzok and Andrew McCabe.

Days after those misleading dates were made public via Sidney Powell, Trump used the misleading dates in a packaged debate attack on Joe Biden.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

We know of no instance where Trump accepted a bribe in response to which a family member got a US government contract. We do, however, know of an instance where the Trump Administration gave the Saudis something of value — at the least, cover for the execution of Jamal Khashoggi — which everyone seems to believe has a tie to Jared’s lucrative $2 billion contract with the Saudi government.

As to selling nuclear secrets to a foreign adversary? Well, we know Trump had some number of nuclear secrets in his gaudy bathroom and then in his leatherbound box. We have no fucking clue what happened to the secrets that Walt Nauta allegedly withheld from Evan Corcoran’s review that got flown to Bedminster just before a Saudi golf tournament, never to be seen again.

All of which is to say that these edge cases — examples of Presidential misconduct that some commentators have treated as strictly hypothetical — all have near analogues in Trump’s record.

This response is a response about a very specific indictment, an indictment that describes actions Trump took as a candidate, often with those outside government, in ways that usurped the authorities reserved to states and Congress.

But in several points in the filing, DOJ invites review of other potential crimes, crimes conducted at the zenith of Presidential power, but crimes that may — must — otherwise be illegal, if no man is above the law.

Mike Flynn Invites DOJ to Review Judge Emmet Sullivan’s Non-Exoneration

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I’ve been missing out on some fun.

When Mike Flynn sued DOJ in Florida for malicious prosecution (docket, complaint, amended complaint, response to MTD), I set an alert but figured it would be too stupid to follow along closely and so haven’t been following closely until something led me to peek this morning.

It is stupid.

But it has, nevertheless, elicited some interesting arguments on the part of DOJ (motion to dismiss, motion to dismiss amended complaint). That’s because it has forced DOJ to engage with Bill Barr’s corrupt attempt to dismiss Flynn’s prosecution in 2020 (the second of these MTDs, which I treat here, was filed in mid-September).

DOJ argues the DC standard for malicious prosecution applies here. If it does, it means that Flynn has to prove that:

  1. The criminal prosecution was procured by investigative or law enforcement officers (as opposed to prosecutors)
  2. There was no probable cause to support the charges even though Flynn pled guilty to them, twice
  3. The criminal prosecution terminated in Plaintiff’s favor

Flynn unsurprisingly bases his claims substantially on texts Peter Strzok sent Lisa Page and even DOJ’s improperly released letter from David Bowdich dismissing Strzok (currently the subject of a lawsuit in which Trump was deposed four days ago).

It also relies heavily on — but does not submit as evidence — the testimony of Bill Barnett. Barnett is pro-Trump FBI agent who, unlike Strzok, remained on the case when Flynn was actually charged. As part of an election stunt, Barr released an interview with Barnett that wildly contradicted his own past actions and redacted all mention of Brandon Van Grack, about whom Barnett had favorable things to say.

You can see the problem here.

Flynn tried, but cannot argue, that Jeannie Rhee and Robert Mueller procured a malicious prosecution of him (for some reason — possibly because the Barnett report describes what a nice guy Van Grack was — Flynn removed Van Grack from his amended complaint).

To win this case, Flynn has to show that an FBI agent did mean things to him. But the FBI agent on the case when he was charged was Barnett, not Strzok. To argue that earlier investigative steps amount to mean things, Flynn has to argue that an agent who reportedly sent pro-Trump texts on his FBI phone filed malicious National Security Letters targeting him.

Since that argument is such a loser, Flynn has substantially attempted to argue that because the FBI did mean things to Carter Page, it equates to mean things against him too.

As DOJ notes, even Carter Page’s lawsuit failed.

Flynn also has to explain away why he twice pled guilty to the charges against him if there was no probable cause to justify the investigation in the first place.

Here, there can be no dispute that there was probable cause for the United States to file the criminal information because Plaintiff had already agreed to plead guilty to the charge at the time it was filed. See Criminal Case, ECF No. 3 (plea agreement with Plaintiff’s signature dated November 30, 2017), Criminal Case, ECF No. 154 (describing exchange of plea documents in days prior to the filing of the criminal information). Plaintiff’s plea agreement expressly states that Plaintiff is entering the plea “voluntarily and of [his] own free will,” after having discussed the plea with his attorneys, because he is “in fact guilty of the offense.” Criminal Case, ECF No. 3 at 10. In connection with the plea, Plaintiff also signed, under penalty of perjury, a “Statement of the Offense,” which set forth the factual predicate for his guilty plea. Criminal Case, ECF No. 4. In the Statement of the Offense, Plaintiff expressly stipulated and agreed that “[Plaintiff’s] false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation into the existence of any links or coordination between individuals with the [Trump] Campaign and Russia’s efforts to interfere with the 2016 presidential election.” Id. at ¶ 1-2. Subsequently, Plaintiff twice affirmed, under oath, in open court that he was pleading guilty—not based upon any threats or promises but—because he was, in fact, guilty of the offense charged. See Criminal Case, ECF Nos. 16, 103.

Plaintiff’s own agreement to plead guilty to the criminal information conclusively establishes that there were “reasonable grounds”—i.e., probable cause—for the United States to institute the criminal charges. Indeed, numerous courts have held that a guilty plea “conclusively establishes that probable cause existed.” Cuellar v. Love, No. 11-CV-3632 NSR, 2014 WL 1486458, at *5 (S.D.N.Y. Apr. 11, 2014) (collecting cases); see also Walker v. Clearfield Cnty. Dist. Att’y, 413 F. App’x 481, 483 (3d Cir. 2011) (concluding “that a guilty plea—even one for a lesser offense—does not permit a later assertion of no probable cause”); Morrison v. Vine, No. 17-CV-996-LJV-HBS, 2021 WL 1229558, at *3 (W.D.N.Y. Feb. 25, 2021) (collecting cases for proposition that “guilty plea established probable cause for his criminal prosecution”), report and recommendation adopted, 2021 WL 1226446 (W.D.N.Y. Mar. 31, 2021). Plaintiff’s guilty plea thus “establishes probable cause for commencing the proceeding against him and therefore serves as an absolute defense to the malicious prosecution claim.”

Flynn claims he pled guilty (at least the first time) because DOJ threatened to prosecute his son.

The Amended Complaint alleges that Plaintiff “entered into a plea agreement, not because he thought he had done something wrong—he hadn’t—but because SCO had threatened his son with prosecution.” ECF No. 34 ¶ 128; see also id. at ¶ 136 (alleging that “SCO was aware that it had coerced the guilty plea”). Plaintiff’s allegation is totally devoid of supporting factual allegations regarding the alleged threat—such as what specific threat was made, who allegedly made the threat, or when the threat was made. Plaintiff’s threadbare allegation of coercion is insufficient to overcome the presumption established by Plaintiff’s guilty plea.

As DOJ notes, Flynn doesn’t even try to substantiate this claim. That’s probably because if he did, it’d lead right back to Van Grack and Barnett, not Strzok.

Since Flynn can’t prove either that an FBI agent caused charges to be filed against him or that there was no probable cause justifying it, this suit should not succeed.

But things get interesting on the third prong.

That’s because DOJ points to Judge Emmet Sullivan’s refusal to dismiss Flynn’s prosecution in the face of Barr’s attempts to do so to show that the case did not affirm Flynn’s innocence.

In or around February 2020, then-Attorney General William Barr appointed several prosecutors to review the Criminal Case, and, at the conclusion of their review, they recommended dismissal of the Criminal Case against Plaintiff. ECF No. 34. ¶¶ 147-48. On May 7, 2020, then-United States Attorney for the District of Columbia, Timothy Shea, who had not previously appeared in the case, moved to dismiss the criminal information. Id. ¶¶ 148, 151; ECF No. 34-4; Criminal Case, ECF No. 198. U.S. Attorney Shea argued that dismissal was warranted because the Government believed it could not prove “to a jury beyond a reasonable doubt” that: (1) Plaintiff’s false statements to FBI agents were “material” to any FBI investigation; and (2) Plaintiff knowingly and willfully made false statements during the interview. ECF 34-4 at 17-18. U.S. District Court Judge Emmet Sullivan did not immediately grant the motion and, instead, on May 13, 2020, appointed an amicus curiae “to present arguments in opposition to the government’s Motion to Dismiss.” Criminal Case, ECF No. 205 at 1; see also ECF No. 34 ¶ 162.

On November 25, 2020, prior to Judge Sullivan ruling on the motion to withdraw and motion to dismiss, President Trump granted Plaintiff a pardon. The presidential pardon provided Plaintiff “a full and unconditional pardon” for the charge of making false statements to federal investigators, as charged in the criminal information, and all possible offenses within the investigatory authority or jurisdiction of Special Counsel Mueller. Criminal Case, ECF No. 308-1. On the same day the pardon was issued, the White House Press Secretary released a statement addressing the pardon, stating that Plaintiff “should not require a pardon [because h]e is an innocent man.” ECF No. 34 ¶ 163.7 However, the text of the executive pardon did not indicate that the pardon was based on innocence. See Criminal Case, ECF No. 308-1.

On November 30, 2020, the United States Attorney’s Office filed a notice of the executive pardon and consent motion to dismiss, arguing that the Criminal Case was moot due to Plaintiff’s acceptance of the pardon. Criminal Case, ECF No. 308. On December 8, 2020, Judge Sullivan issued an opinion dismissing the Criminal Case as moot. Criminal Case, ECF No. 311.8 In doing so, Judge Sullivan addressed the arguments for dismissal raised in the still pending motion to dismiss filed by U.S. Attorney Shea. Id. at 28-40. Judge Sullivan first stated that the motion to dismiss appeared pretextual given the surrounding circumstances, including Plaintiff’s prior position as an advisor to President Trump and President Trump’s continued interest in the criminal case. Id. at 28-29. Judge Sullivan then commented that the motion to dismiss relied upon a new, “more circumscribed” definition of “materiality,” without offering any comprehensible reasoning for shifting to the “highly-constrained interpretation of materiality.” Id. at 30, 32. Judge Sullivan then reviewed the record evidence and found the motion to dismiss did not undertake “a considered judgment” when determining that “falsity” could not be proven beyond a reasonable doubt. Id. at 38. Judge Sullivan thus suggested that the motion to dismiss “present[ed] a close question,” but refrained from ruling on the merits and denied the motion as moot “in view of the President’s decision to pardon” Plaintiff and Plaintiff’s acceptance of the pardon. Id. at 38

7 See Statement from the Press Secretary Regarding Executive Grant of Clemency for General Michael T. Flynn (Nov. 25, 2020), available at https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretaryregarding-executive-grant-clemency-general-michael-t-flynn/.

8 Because Judge Sullivan’s opinion is referenced in—and central to—Plaintiff’s Amended Complaint, ECF No. 34 ¶¶ 165-67, it may be considered by the Court in resolving this motion to dismiss. See Hodge v. Orlando Utilities Comm’n, No. 609-CV-1059- ORL-19DAB, 2009 WL 5067758, at *3 (M.D. Fla. Dec. 15, 2009); infra Argument, § I.

Much later, the motion to dismiss gets into a legalistic argument about whether accepting a pardon is recognition of guilt. Ultimately, though, DOJ notes that those legalistic arguments aren’t at issue here, because Sullivan so clearly laid out that he was dismissing the case only because the pardon — a pardon that Trump did not claim arose from innocence — mooted his authority to decide on Flynn’s innocence or guilt.

22 Although Plaintiff alleges that several independent prosecutors recommended dismissal of the Criminal Case and that, in response, U.S. Attorney Shea, on behalf of the government, moved to dismiss the criminal information, ECF No. 34 ¶ 148, Plaintiff acknowledges that Judge Sullivan “refused to approve the DOJ’s dismissal of its prosecution” and ultimately dismissed the case only “after [Plaintiff] received a full presidential pardon,” id. at ¶¶ 162, 167. In his Opinion addressing dismissal, Judge Sullivan expressed concerns about the merits of U.S. Attorney Shea’s motion and noted that the facts presented “a close question” regarding whether the court should defer to the prosecutor’s discretion to dismiss the charges but refrained from resolving that question in light of Plaintiff’s acceptance of the pardon. Criminal Case, ECF No. 311 at 38.

23 Although “[s]ome courts . . . have considered whether a plaintiff has identified facts surrounding the dismissal . . . that, if proven, would demonstrate that the termination of the criminal case tended to show the plaintiff’s innocence,” Clark v. D.C., 241 F. Supp. 3d 24, 34 (D.D.C. 2017), those cases are inapposite. Here, there is no ambiguity with regard to whether the court’s dismissal order tended to show Plaintiff’s innocence, because the order explained that the termination of the case was not based upon Plaintiff’s potential innocence but instead the case was dismissed as moot in light of Plaintiff’s acceptance of a pardon. Criminal Case, ECF No. 311; Cf. Clark, 241 F. Supp. 3d at 34 (finding allegations of favorable termination sufficient where court granted government’s motion to dismiss without prejudice where neither the motion nor the order offered any information on the basis for dismissal).

In 2020, Judge Sullivan went to a great deal of effort to thread a very fine needle, using Trump’s corrupt pardon as a way to avoid any reversible error even while stopping well short of declaring Flynn innocent. I wrote then that,

it is not relevant to Trump’s pardon of Mike Flynn. But one thing Sullivan did in his opinion was to reject Billy Barr’s new reality in a way that may be invoked for any related matters before DC District courts.

That’s what I find so interesting about this motion to dismiss: DOJ has (quietly) used the reality of Sullivan’s carefully crafted opinion to dismiss Barr’s corrupt attempt to reverse the prosecution and Flynn’s fantasies of innocence.

It’s a rare DOJ rebuke of DOJ. And it’s one entirely enabled by that Sullivan opinion.

Unlike Michael Sussmann, Patrick Byrne Was Not Prosecuted for Providing Allegedly False Tips to the Government

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Among the many records on the Durham investigation DOJ newly released to American Oversight on June 1 is an email, dated August 23, 2019, from Seth DuCharme to Durham and one of his aides revealing that “Overstock CEO gave info to DOJ for John Durham’s review of Russia investigation origins.”

We can be fairly sure what Byrne provided DOJ because he first went on Fox and CNN and laid it all out there. His excuse for getting laid by Maria Butina, he said, was that Peter Strzok told him to do it as an investigative ploy (the reasons why have never really made sense).

“I figured out the name of who sent me the orders and this has been confirmed. The name of the man who sent me was Peter Strzok,” Byrne exclaimed, naming the embattled former FBI agent at the center of the right’s Spygate conspiracies. “This is going to be quite a whirlwind.”

At times bursting into tears, Byrne alleged there was a “big coverup” of “political espionage” that was connected to President Trump, Hillary Clinton, Marco Rubio and Ted Cruz, insisting that “this is not a theory” of his because he was “in the room when it happened.”

“Both catching my friend’s murderer and taking on Wall Street were consistent with my values and it was my honor to help the Men in Black and it was the third time that they came to me,” he said at one point. “And I got some request, I did not know who the hell it came from and it was fishy and three years later on watching television and I realized who it was—it was Peter Strzok and [former Deputy FBI Director] Andy McCabe, that the orders came from.”

Byrne said he decided to come forward with his Deep State concerns because he felt guilty for recent mass shootings.

“But the issue is, I realized that these orders I got came from Peter Strzok, and as I put together things, I know much more than I should know and tried to keep silent,” he said. “Everyone in this country has gone nuts, and especially for the last year when I realized what I know, every time I see one of these things, somebody drives 600 miles to gun down 20 strangers in the mall, I feel a bit responsible.”

[snip]

“No doubt Peter Strzok would watch this and say he’s full of it, I had nothing to do with anything,” the Fox News anchor stated.

Here is my first post on the allegations, written the same day as this Seth DuCharme email.

Strzok would ultimately deny the allegations about him specifically.

In early November, he told me that he had never met Byrne, and had “no awareness” of him before reading about him in the news in August, 2019. When I asked about one of Byrne’s most incendiary claims—whether an F.B.I. agent might instruct someone to pursue a romantic relationship with a suspect in order to gather intelligence—Strzok said that the Bureau had thirteen thousand agents, and that, though he couldn’t dismiss Byrne’s story out of hand, it sounded “extraordinarily fantastical.” He went on, “This isn’t some James Bond film—we don’t tell people, ‘Go bed this vixen for your country.’ ”

And, unless I missed it in John Durham’s report, he did not even include this among the things he investigated.

It’s hard to know how seriously DOJ took it, but DuCharme’s involvement shows it had the same kind of high level interest as the Alfa Bank anomalies. One of Bill Barr’s key advisors was involved in it. And whatever heed DOJ paid to it, would be hard to take Byrne’s allegations less seriously than the Cyber agents who dismissed the Alfa Bank anomalies in barely more than a day, making substantial errors along the way.

Plus, DOJ withheld this information under a b7A exemption, reflecting that it was treated as part of an ongoing investigation, until Durham finished. Someone at DOJ treated this with enough seriousness to bury for four years. Which raises the prospect that Durham believed it was sound to criminalize Michael Sussmann, a Democratic lawyer sharing a honestly held tip, but chose to do nothing about a guy with ties to a convicted Russian agent sharing wild conspiracies.

And here we are, four years later, and Byrne continues to share wild conspiracies, most that undermine American democracy.

And now, amid reports that Jack Smith is zeroing in the December 18, 2020 meeting at which Patrick Byrne and others pitched seizing voting machines, Byrne is suggesting he has — and plans to release — kompromat on Smith (he may have deleted this but this thread repeats the theme).

I’m not saying Byrne should have been prosecuted for making unsubstantiated claims about the Russian investigation — unless the government can tie his motive to Butina’s operation.

I’m saying the contrast with what Durham did with Michael Sussmann and what he didn’t do with Byrne is a stark indicator that he would criminalize Democratic politics while ignoring crazy conspiracies from someone with direct ties to a Russian influence operation.

Update: Added a second part from the FOIA. h/t Brian Pillon.

WaPo Is Suppressing Information that Might Debunk Devlin Barrett’s Latest Spin

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Last week, I asked the WaPo if they would release the two reports — one from Johns Hopkins professor Matt Green and the other from InfoSec expert Jake Williams — that were the basis of this report on the “Hunter Biden” “laptop.”

I had asked once before, in May 2022.

But since I had originally asked, a bunch of things had happened to make those reports more newsworthy. Hunter Biden had countersued John Paul Mac Isaac (here’s the WaPo’s report). James Comer has stumbled over and over in his unabashed effort to manufacture a scandal (in which the WaPo has played along, still treating it as a credible investigation). Delaware US Attorney David Weiss’ office released a plea deal to which Hunter Biden is expected to plead guilty next week (here’s the WaPo report). IRS agents claiming to be whistleblowers, Gary Shapley and Whistleblower X, shared notes that raised questions about the FBI treatment of the device (but WaPo didn’t mention that in their report). Abbe Lowell claimed that Shapley misidentified Hunter Biden’s interlocutors in some key WhatsApp messages (something else WaPo didn’t mention even while repeating the substance of the contested WhatsApp texts). Denver Riggleman, who has been working as part of a Hunter Biden team to examine what has been released, has alleged some of the data has been manipulated (something WaPo hasn’t bothered to cover at all).

That all led me to start looking at the publicly released (but unreliable) emails at BidenLaptopEmails dot com, where I’ve discovered that during a period when Hunter Biden was getting Ketamine treatment and bookended by two communications from him that indicated he was not getting outside comms, someone:

  • Split Hunter’s Uber account, on which his two iCloud accounts had previously been joined
  • Accessed Hunter’s rhb iCloud account from a browser
  • Changed the password and related phone numbers to his rhb iCloud account
  • Installed and gave full access to his droidhunter gmail account a real app, called Hunter, that can send email on someone else’s behalf
  • Signed into that droidhunter account using a new device
  • Again changed emails and phone numbers associated with his rhb account
  • Asked for a full copy of his rhbdc iCloud account
  • Reset the password of that rhbdc iCloud account
  • Made droidhunter account the notification email for the rhbdc account
  • Downloaded all Hunter’s Apple Store purchases
  • Made changes to the Uber (and Waze) account associated with an XS phone that would be included in the “laptop”
  • Restored rhb as an alternate address to the account
  • Restored contacts from an unidentified prior change
  • Obtained — including at the droidhunter email account — a download link of the entire rhbdc iCloud account
  • Backed up the XS phone to the laptop
  • Gotten a trial app of a photo editor
  • Backed up an iPad to the laptop
  • Changed the iTunes password
  • Added the Dr. Fone account, allowing you to adopt a chosen second phone number for a phone, to a second of Hunter’s accounts
  • Signed into the droidhunter account from a burner phone
  • Restored the prior trusted phone number
  • Added software that could record calls
  • Started erasing and then locked a laptop — probably the one that would eventually end up in Mac Isaac’s store
  • Got a new Mac phone for the droidhunter account

That series of changes are not the only emails in the MarcoPolo set that should raise questions about whether Hunter Biden’s digital identity may have been compromised.

Two that are important to the topic of this post are, first, that a great many devices logged into Hunter Biden’s iCloud accounts in 2018 and 2019, yet many of them don’t appear to be tied to him getting his own new iPhone or computer, and only rarely are the existing devices shut down or passwords changed afterwards. The sheer number should have raised alarms that people had broken into Hunter Biden’s iCloud accounts when the IRS asked Apple for Hunter Biden’s subscriber information in November 2019, in advance of writing a subpoena for the laptop in custody of John Paul Mac Isaac. Additionally, there were a bunch of attempts to get into Hunter Biden’s Venmo account, and the account added two new Remembered Devices within 12 minutes of each other in August 2018, one in the LA foothills and the other in Las Vegas. That and other details (including texts and emails) might have raised questions about whether sex workers from the very same escort service on which the IRS had predicated this entire investigation took steps to compromise Hunter Biden’s devices.

But the timeline above provides some reason to believe that at the time the “laptop” was packaged up for delivery to John Paul Mac Isaac, Hunter Biden did not have complete — if any — control of his own communications.

I wouldn’t be able to prove whether Hunter Biden was hacked during this key period in 2019. It would require subpoena power and access to reliable data. But as it happens, Whistleblower X had subpoena power — and was already watching Hunter Biden closely — in precisely the period this happened.

For those of us who don’t have subpoena power, though, we have to rely on publicly available evidence, filtered through partisan gatekeepers alleged to have tampered with the device.

The two reports done for the WaPo are the only known assessments of the drive containing the “laptop” primarily using forensic — as opposed to a correlative — methodology. The correlative methodology, which shows all the communications on the drive confirm the others, unsurprisingly concludes that the “laptop” came from one of Hunter Biden’s several iCloud accounts.

The forensic methodology looked for digital verification — not just of email signatures, but also of the drive itself. Both Green and Williams raised questions about the treatment of and missing digital signatures on the drive, questions that seem to match what Riggleman’s team is seeing.

Indeed, the concerns that Green and Williams raised may explain something the FBI itself found. Shapley’s notes recorded that on March 31, 2020, someone wrote an email “about quality and completeness of imaged/recovered information from the hard drive” — an email that was being intentionally withheld from the agents (especially Whistleblower X) who might one day testify at trial.

This sounds like it might reflect the same concerns raised by anyone external examining the drive forensically. If it does, it would suggest that some of the irregularities everyone can see in drives released via Rudy Giuliani and Steve Bannon always existed, including in the one shared with the FBI and in any separate drive shared with Republicans in Congress.

Because of all the new questions raised about the “laptop,” and because of the centrality that the Republicans want it to have on the upcoming election, I thought it reasonable to ask the WaPo to do what even the Washington Examiner was willing to do: show their work. While the Examiner’s report from Gus Dimitrelos tellingly excludes many of the details I’ve laid out above and hides both some key later device accesses and types of apps — especially spyware — loaded onto Hunter Biden’s iCloud accounts, while the way the Examiner released it exacerbated the privacy violations on Hunter Biden himself, it nevertheless was useful for explaining how two iCloud accounts were loaded up onto one laptop and how the government was able to obtain WhatsApp texts that don’t show up on the unencrypted parts of the laptop.

After I made several requests, WaPo PR manager Savannah Stephens declined to release the reports, calling the two reports, “foundational reporting documents.”

Marcy, thank you for reaching out. We do not release foundational reporting documents. Our coverage at the time was transparent about how the study was conducted, including this report.

Even though it has two reports that could significantly impact fairly pressing debates — debates the WaPo itself treats as important — the WaPo refuses to release more on these expert reports on the laptop.

Instead of doing that, the WaPo is instead paying Devlin Barrett to do what he does best — write down as true what right wingers tell him to write, not what the public evidence actually shows.

In a story with Matt Viser (the same guy who repeated the content of contested WhatsApp texts without revealing that Abbe Lowell had contested them), Barrett wrote that the testimony of the men he calls “whistleblowers” “show Hunter Biden’s laptop had little role in the investigation into Hunter Biden.”

Barrett and Viser utterly misrepresent the debate over the laptop — dodging the question, in the lede, at least, of whether the laptop can help get to the truth — something once considered the purview of journalism and something WaPo’s own report on this drive had previously done.

For more than two years, Democrats and Republicans have hotly debated the importance of the “Hunter Biden laptop” — insisting that it was either key evidence of corruption or fool’s gold meant to con 2020 voters into abandoning then-candidate Joe Biden.

Both theories were largely wrong, according to two of the agents closest to the investigation of tax crimes allegedly committed by President Biden’s son.

[snip]

But the agents’ accounts also indicate that the laptop played at best a small role in the criminal investigation into potential tax and gun-purchasing violations. Far from a smoking gun, the laptop appears to have been mostly an afterthought to the reams of text messages, emails and other evidence that agents gathered from Hunter Biden’s cloud data. A lawyer for one of those agents said he nevertheless was frustrated by the Justice Department’s refusal to let them review the laptop’s contents.

I’m very interested in the project of this column, because not only is this not what Shapley and Whistleblower X’s testimony said, but it misrepresented and misunderstands how evidence works.

This is a tax investigation. It came from, per Whistleblower X, his examination of what is probably a Russian escort service. But it’s a tax investigation: it relies on financial data that comes directly from banks and other financial institutions, institutions that are — to the extent they aren’t tainted by identity theft or hacking, like people seem to have tried to do to Hunter Biden’s Venmo — inherently reliable.

As for emails and texts, the IRS agents’ testimony (taken in conjunction with the report that the Washington Examiner was ethical enough to release), shows that the IRS didn’t obtain what is probably Hunter Biden’s rhb iCloud account — from which the cited, contested WhatsApp messages were probably obtained a second time — until August 2020, after it got some of the same material on the laptop. That potential taint may be why someone told Barrett to downplay the import of the laptop.

While the laptop may not have played a key role in substantiating a tax case against Hunter Biden, it may well have tainted the evidence in the case. It may well be part of the reason why Hunter Biden is getting to plead to misdemeanor rather than felony tax charges — because as even Whistleblower X explained that he had been told, there are emails that raised concerns about whether this could be charged at all, suggesting this case couldn’t withstand discovery.

Plus, WaPo is being coy here: The laptop may have played little part in a tax investigation reliant on bank records. But it did play a central part in allegations, including WaPo’s own reporting, of foreign influence peddling involving (among others), Burisma, the hack of which became public between the time the IRS started using this laptop as evidence and the time they learned Rudy Giuliani had a role in it.

That part is all pitch, though — yet another instance where Devlin Barrett writes down what right wingers tell him to say and WaPo reports it as if it were true. It’s what WaPo pays him to do.

It’s the claims about the laptop — from an outlet sitting on two reports that raise questions about its reliability — that I find especially curious. Start with this paragraph, which conflates the steps FBI took in November 2019 to authenticate that the laptop was Hunter Biden’s — subscriber information from Apple, a purchase record in Delaware, two but maybe only two phone calls with Mac Isaac, and “other intelligence” — with what the AUSA on the case said about it almost a year later.

After being handed the device by a Wilmington, Del., computer shop owner in 2019, the FBI quickly concluded by examining computer data as well as Hunter Biden’s phone records that the laptop was genuinely his and did not seem to have been tampered with or manipulated.

That last bit — “did not seem to have been tampered with or manipulated” — published by an outlet sitting on two reports that show the laptop was tampered with? It is a paraphrase from a meeting in October 2020, not a description of legal process served in November 2019. And therein lies a big part of the scandal.

In the actual quote, Wolf — painted as the bad guy here by the IRS agents — was saying that it “is not a priority” for the investigative team to see “if anything was added to the computer by a third party” even after learning that the lawyer for the President, whose demands for this investigation had raised influence problems from the start of the investigation, had some kind of tie to it.

This is as if Peter Strzok, rather than just failing to make sure people writing FISA applications had adverse information about the Steele dossier (which is what frothers think the IG Report showed), had instead said, “fuck it, I don’t care if it is tainted.” These notes show the Hunter Biden investigative team did what right wingers accuse the Crossfire Hurricane team of doing, blowing off the import of the involvement of a campaign in a key piece of evidence.

When the WaPo conflates those two items again later in the piece, they date the quote to May 2020.

Democrats suggested the data might have been doctored or possibly a Russian-backed disinformation campaign. The information provided by IRS agents to Congress seems to put both the accusations and counter-accusations to rest.

FBI agents were able to determine in early November 2019 that the device they had was registered to Hunter Biden, and phone records showed he had been in contact with the computer shop owner.

“We have no reason to believe there is anything fabricated nefariously on the computer and or hard drive. There are emails and other items that corroborate the items on the laptop,” Shapley wrote in notes that dated that determination to around May 2020.

Dating Lesley Wolf’s comment saying they had no reason to believe anything on the laptop was fabricated to May 2020 is either a deliberate error or a confession that two journalists proclaiming the laptop to lack any taint have no fucking clue what they’re reading.

Wolf said this, at a meeting the investigative team had on October 22, 2020, in the wake of the discovery that Rudy Giuliani had some tie to the laptop, as the team scrambled to memorialize how they had treated a key piece of evidence about which a bunch of questions would now be raised.

A Yes. So there are a couple significant parts of this. One was that, at this time, the laptop was a very big story, so we were just making sure that everything was being handled appropriately.

So we wanted to go through the timeline of what happened with the laptop and devices.

Because the laptop had become a huge story, “we were just making sure that everything was being handled appropriately,” Devlin Barrett’s star “whistleblower” explained.

And Shapley shows Wolf saying that they had no knowledge, in October 2020, of any fabrications on the laptop. But he records her saying that after “computer guy” said “they could do a csv list that shows when everything was created.”

That is, Wolf said this after “computer guy” described something they had not yet done ten months after obtaining the laptop, had not yet done two months after getting warrants relying on the laptop, that they would need to do to make sure the laptop had not been altered by third parties. Wolf said this after “computer guy” described that the FBI had not done very basic things to verify the integrity of the laptop they should have done ten months earlier, before relying on it.

Again, I’m not sure whether WaPo’s journalists are dishonest or just stupid. But this exchange is critical for another reason. Lesley Wolf’s assertion about the integrity of the laptop relied on correlation: by matching emails on the laptop with emails that could be obtained directly from the provider.

There are emails and other items hat corroborate the items on the laptop and hard dive.

This is the method that Washington Examiner’s expert used to proclaim the laptop authentic. It’s the method that a bunch of other right wing journalists have gotten experts to use to validate the laptop.

If you steal someone’s iCloud account, the way to prove that it is authentic is by proving that it is their iCloud account, which is what correlation does.

But “computer guy” was suggesting using a forensic method, ten months after the fact, to test the integrity of the laptop itself. DDOSecrets has done this test on the publicly released emails — and half of them have a last modified date of February 11, 2019, right towards the end of the timeline I show above.

Lesley Wolf made her comment on October 22, 2020. No one in Gary Shapley’s interview asked him what happened after that. Nor does Devlin Barrett seem curious to ask.

If “computer guy” subsequently did this test, there’s good reason to believe he would have found what DDOSecrets did: that while these emails match the ones in Hunter Biden’s accounts, they were all packaged up on February 11, 2019, at a time it’s not clear Hunter Biden had control of his own digital accounts.

If you use a forensic method to validate these files, you’re not going to get the same results as a correlative method. That’s why it would be very useful for the debate about the laptop for WaPo to share the two known expert reports done using forensic methods on the drive itself, rather than correlation.

There’s one more hilarious thing about this Devlin Barrett creation. He, predictably, repeats his “whistleblower’s” complaints about not getting stuff pertaining to the laptop.

Shapley said a federal prosecutor on the case, Lesley Wolf, told him that the IRS agents couldn’t see the laptop. “At some point, they were going to give a redacted version, but we don’t even think we got a full — even a redacted version. We only got piecemeal items,” Shapley told the committee, voicing his frustration that he would have liked to see all the data.

Devlin Barrett — dishonest or stupid? — quotes Shapley’s testimony out of context. The full quotation makes it clear Shapley is referring, again, to a discussion that took place on October 22, 2020. More importantly, Shapley is not referring to the laptop!!

And when it came down to item number 33 on page 2, Special Agent [Whistleblower X] is saying like, well, I haven’t seen this information. And AUSA Lesley Wolf says, well, you haven’t seen it because, for a variety of reasons, they kept it from the agents. And she said that at some point they were going to give a redacted version, but we don’t even think we got a full — even a redacted version. We only got piecemeal items [my emphasis]

That particular quotation, identified clearly as item number 33, is the report about the laptop — which I’ll copy again here to make it so easy even Devlin Barrett might understand it:

To help a right winger allege corruption, Devlin Barrett quotes his complaint that his team was not given the actual forensic report about the laptop. Corruption, in this story, is withholding a forensic report that might tell people what they need to know about the laptop.

And yet that is precisely what WaPo itself refuses to do: release two reports that raise questions about the quality and completeness of the drive.

According to Devlin Barrett’s own standard — at least the standard he applies when he’s parroting right wingers — withholding such a report is a sign of corruption.

Even the plain language of Gary Shapley’s contemporaneous notes show that Devlin’s claim that, “information provided by IRS agents to Congress” “put[s] … the accusations” that “the data might have been doctored or possibly a Russian-backed disinformation campaign” … “to rest” is wildly false (dishonest or stupid?). It does the opposite: It shows that ten months after beginning to rely on the laptop, the FBI still had not done basic forensic checks of the data on it and the AUSA leading the investigation didn’t think doing so was a priority.

That should be the story. That’s the scandal.

And true to form, Devlin Barrett spins the exactly opposite tale.

The WaPo has in its possession some of the only available information that can help to explain what the FBI saw by March 2020, two independent equivalent reports to the one that Shapley implies it is corrupt to withhold.

And unlike the Washington Examiner, they won’t release it.

Peter Strzok Claims He Spoke to John Durham about the Clinton Conspiracy Theory Document

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In this post, I showed how John Durham fabricated a key aspect of his Clinton conspiracy theory — the claim that she planned to make false claims about Donald Trump. Durham invented the bit where Clinton had to make false claims about Trump. Made it up out of thin air.

Durham considered charging FBI agents because they didn’t respond to evidence that a Hillary advisor had been hacked by Russia as if it were proof of criminal intent by Hillary.

He did so in spite of the fact that he provided no proof that any of those FBI agents he considered charging had actually received the referral memo sharing that Russian intelligence.

In the section where Durham considers whether to charge some FBI agents for not doing more with the the Russian Hillary-and-Guccifer intelligence, he repeats his ploy of conflating the Hillary-and-Guccifer intelligence with the wider body of evidence to even deign to make a prosecutorial decision, though in this instance, he provides no reminder that the Hillary-and-Guccifer intelligence was just one of the things Brennan briefed to Obama, after five pages of other items.

The FBI thus failed to act on what should have been – when combined with other, incontrovertible facts – a clear warning sign that the FBI might then be the target of an effort to manipulate or influence the law enforcement process for political purposes during the 2016 presidential election. Indeed, CIA Director Brennan and other intelligence officials recognized the significance of the intelligence by expeditiously briefing it to the President, Vice President, the Director of National Intelligence, the Attorney General, the Director of the FBI, and other senior administration officials. 491

He lets the urgent import of an ongoing Russian hack to stand in for the import of this Hillary-and-Guccifer intelligence.

And that’s important, because Durham makes a prosecutorial decision about whether to charge FBI agents for how they responded to the intelligence that Russia claimed to have intercepted communications of Hillary personnel without proof that most of them ever read it.

As he describes, the top analytical people on the campaign learned of the claimed intercept of Hillary associates almost a month after CIA first obtained it.

On that date, an FBI cyber analyst (“Headquarters Analyst-2”) emailed a number of FBI employees, including Supervisory Intelligence Analyst Brian Auten and Section Chief Moffa, the most senior intelligence analysts on the Crossfire Hurricane team, to provide an update on Russian intelligence materials. 409 The email included a summary of the contents of the Clinton Plan intelligence. 410

There were in-person briefings for the top analytical people and the cyber people ten days later.

When interviewed by the Office, Auten recalled that on September 2, 2016 – approximately ten days after Headquarters Analyst-2’s email – the official responsible for overseeing the Fusion Cell briefed Auten, Moffa, and other FBI personnel at FBI Headquarters regarding the Clinton Plan intelligence. 411 Auten did not recall any FBI “operational” personnel (i.e., Crossfire Hurricane Agents) being present at the meeting. 412 The official verbally briefed the individuals regarding information that the CIA planned to send to the FBI in a written investigative referral, including the Clinton Plan intelligence information. 413

[snip]

Separate and apart from this meeting, FBI records reflect that by no later than that same date (September 2, 2016), then-FBI Assistant Director for Counterintelligence Bill Priestap was also aware of the specifics of the Clinton Plan intelligence as evidenced by his hand-written notes from an early morning meeting with Moffa, DAD Dina Corsi and Acting AD for Cyber Eric Sporre. 415

Durham describes the CIA writing a memo about what the fusion intelligence team had found — but he curiously never describes how or when it was sent.

Five days later, on September 7, 2016, the CIA completed its Referral Memo in response to an FBI request for relevant information reviewed by the Fusion Cell. 417

That’s important because Durham describes witness after witness describing that they had never seen it.

None of the FBI personnel who agreed to be interviewed could specifically recall receiving this Referral Memo.

[snip]

The Office showed portions of the Clinton Plan intelligence to a number of individuals who were actively involved in the Crossfire Hurricane investigation. Most advised they had never seen the intelligence before. For example, the original Supervisory Special Agent on the Crossfire Hurricane investigation, Supervisory Special Agent-1, reviewed the intelligence during one of his interviews with the Office. 428 After reading it, Supervisory Special Agent-I became visibly upset and emotional, left the interview room with his counsel, and subsequently returned to state emphatically that he had never been apprised of the Clinton Plan intelligence and had never seen the aforementioned Referral Memo. 42

[snip]

Former FBI General Counsel Baker also reviewed the Clinton Plan intelligence during one of his interviews with the Office. 431 Baker stated that he had neither seen nor heard of the Clinton Plan intelligence or the resulting Referral Memo prior to his interview with the Office.

In lieu of proof that it ever got sent, Durham reveals that Brian Auten might have hand-carried the memo to the team, but had no memory of doing so.

Auten stated that it was possible he hand-delivered this Referral Memo to the FBI, as he had done with numerous other referral memos,419 and noted that he typically shared referral memos with the rest of the Crossfire Hurricane investigative team, although he did not recall if he did so in this instance. 420

[snip]

[E]ven in spite of proof that Durham was coaching witnesses in these interviews, he still presented no affirmative evidence that the FBI investigators ever received the Fusion Cell memo. In the same way that all of Hillary’s people disclaimed any plan, the FBI investigators disclaimed having seen this memo.

To sum up: Durham considered charging FBI agents for not responding to evidence that Russians had hacked a Hillary advisor as if it was proof of Hillary’s devious attempt to frame Trump, even though he had no evidence those FBI agents ever saw that evidence.

In today’s hearing, Durham responded to a question from Jim Jordan about the memo — asking whether the memo was given to Jim Comey and Peter Strzok — by dodging on precisely that issue. Rather than saying, yes, Comey and Strzok got this referral, he said only that the memo had been addressed to Strzok.

Jordan: Was memo given to Comey and Strzok.
Durham: That’s who it was addressed to, yes.

That is, he affirmatively stopped short of claiming that Strzok received it.

That led to this exchange involving Strzok himself.

The significance of Strzok’s comment is twofold. First, he says he spoke to Durham about this topic.

I told Durham’s team I had no recollection of ever seeing the [referral]. Funny how he didn’t include that in his report.

That directly conflicts with a footnote in a section of Durham’s Report purporting to prove Peter Strzok’s political bias, in which Durham claimed that Strzok refused to talk about anything other than the Alfa Bank allegations.

139 Strzok was a Section Chief and later the Deputy Assistant Director in the FBI’s Counterintelligence Division. (For the positions held by those involved in the Crossfire Hurricane investigation, see the chart in the Redacted OIG Review at 81-82.) Strzok agreed to provide information to the Office concerning matters related to the FBI’s Alfa Bank investigation, but otherwise declined to be interviewed by the Office on matters related to his role in the Crossfire Hurricane investigation.

Durham has spent a good deal of time today making excuses for why he didn’t speak to Republicans’ biggest bogeymen, including Strzok. Yet it appears that Durham affirmatively misrepresented the extent to which Strzok spoke to him.

Then there’s the documentary detail Strzok raised: When he spoke to Durham, Durham didn’t have an FBI file copy of this memo. He was using a CIA or ODNI version of the document, not one from the FBI.

Either Durham didn’t look — or he never found — this file to be in FBI files.

Both Republicans and Democrats should be furious about this exchange — Republicans, because it suggests Durham is lying to them about whom he really did speak with, and Democrats, because it is yet more proof Durham invented a conspiracy theory out of a Russian intelligence report.

John Durham seems to be hiding the degree to which he left out interviews that debunked his own conspiracy theories. Including one with Peter Strzok.

Before Rand Paul Went to Moscow, He Was in a White House Meeting Discussing Lisa Page, Peter Strzok, and Andrew McCabe

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Peter Strzok filed what is billed as a motion for clarification of Judge Amy Berman Jackson’s order last week requiring that Strzok’s deposition of FBI Director Chris Wray take place before Strzok’s deposition of Trump.

In part, it is a fact check, laying out all the ways that DOJ seems to have panicked after (and because) Strzok scheduled a deposition with the former President on May 24.

In part, it seems to be an effort to pre-empt DOJ’s threat to file for a writ of mandamus against ABJ because she permitted these depositions. For example, Strzok’s lawyers describe how much easier it was to schedule time with the unemployed former President than with the FBI Director. Under the Apex doctrine that DOJ claims to be adhering to, that should mean that Wray’s deposition should come after Trump’s (and indeed, that’s effectively what DOJ seemed to argue last year).

More interesting, though, are notes Strzok included to establish a need to depose Trump regardless of what Wray says, both taken by John Kelly when he was Chief of Staff.

According to Kelly’s own transcription, this February 21, 2018 note reads:

Potus, AG, Don McGahn

  • Deep state issues
  • Investigations
  • Firing love birds

McCabe?

  • Trust?

This note establishes that pressure to fire Strzok and Page may have bypassed Wray. McCabe was fired weeks later.

More curious still, however, is this note:

Kelly transcribed the July 23, 2018 note this way:

Potus, Rand Paul +2

Security clearances

*add Page, McCabe, Stroch (sic)

For some reason, a week after Trump submitted to Vladimir Putin in Helsinki on July 16 and 15 days before Paul would carry a letter from Trump to Putin expressing an interest in remaining besties, Paul was in a meeting discussing the FBI officials Trump had a vendetta against (who also happen to be Russian experts).

Days after Paul returned from Moscow, the FBI fired Strzok.

Update: Per Rand’s Twitter account, he met with Trump to discuss revoking John Brennan’s security clearance that day.