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Why Republicans Launched the GSA Email Attack Now

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I think most people are missing the significance of why the Republicans launched their attack on the GSA over the weekend (this post is a summary of what we know, with updates).

That’s true, in part, because people are misunderstanding what the Trump for America team recently learned. It’s not — as many have claimed — that they only recently learned Mueller had emails beyond what TFA had turned over to Congress and through that to Mueller. As Axios reported, “Trump officials discovered Mueller had the emails when his prosecutors used them as the basis for questions to witnesses, the sources said.” That is, Mueller has been asking questions based off these emails for months.

The timing of this complaint — not the complaint itself — is key

What TFA only discovered last week, according to their letter, at least, is how Mueller obtained them — by asking, just like prosecutors reviewing government communications in the course of investigating possible violations of the Espionage Act always do, especially if the subjects of the investigation have access to classified documents.

We discovered the unauthorized disclosures by the GSA on December 12 and 13, 2017. When we learned that the Special Counsel’s Office had received certain laptops and cell phones containing privileged materials, we initially raised our concerns with Brandon Van Grack in the Special Counsel’s Office on December 12, 2017. Mr. Van Grack confirmed that the Special Counsel’s Office had obtained certain laptops, cell phones, and at least one iPad from the GSA – but he assured us that the Special Counsel’s investigation did not recover any emails or other relevant data from that hardware. During this exchange, Mr. Van Grack failed to disclose the critical fact that undercut the importance of his representations, namely, that the Special Counsel’s Office had simultaneously received from the GSA tens of thousands of emails, including a very significant volume of privileged material, and that the Special Counsel’s Office was actively using those materials without any notice to TFA.1 Mr. Van Grack also declined to inform us of the identities of the 13 individuals whose materials were at issue.

The government has great leeway to access government communications, as Peter Strzok, the former counterintelligence FBI Agent who just had his own communications leaked and then released to the world, would probably be all too happy to tell you. All the more so given allegations that files went missing from the Transition SCIF, just as Jared Kushner was talking about back channel communications with the Russians.

So what’s new is not that Mueller had the emails (about which no one has complained before). But that he obtained the email inboxes of 13 people, including Jared, from GSA without letting the Transition do their own review of what to turn over.

Trump’s team may face obstruction charges

As I made clear here, it appears that one reason the Trump people are so angry is that Mueller has probably caught them failing to turn over emails that are absolutely material to the investigation, such as KT McFarland’s “Thrown election” email. Whoever did these document reviews may now be exposed to obstruction charges for withholding such material, which in turn would give Mueller leverage over them for their own further cooperation.

[Update: I should have said, withholding emails will only be a problem if the Transition was otherwise obligated (say, by subpoena) to turn them over. Mueller did subpoena the campaign for a similar set of emails; but since he didn’t need to from GSA, he may not have here.]

Mueller has far more damning information on Jared than Trump’s folks expected

Just as importantly, Axios explicitly said the emails include Jared Kushner’s emails (indeed, given his public claims about how many people he spoke to during the transition, I wouldn’t be surprised if his was the email box that had 7,000 emails).

As I have shown, Jared has been approaching disclosure issues (at least with Congress) very narrowly, ignoring clear requests to turn over his discussions about the topic of the investigation, and not just with the targets of it. If Mueller obtained all his emails, he’d have those “about” emails that Jared purposely and contemptuously has withheld from others.

We know that Jared is a key interim Mueller target here (and Abbe Lowell’s search for a crisis communications firm to help sure suggests Jared’s defense team knows that too). We know he felt the need to explain how he went from responding to a personalized Vladimir Putin congratulatory email on November 9 to asking Dmitri Simes for Sergei Kislyak’s name.

Take, for example, the public statement prepared for testimony to congressional committees by the president’s son-in-law and adviser Jared Kushner. There, he revealed that on the day after the election, in response to a congratulatory email from Russian President Vladimir Putin, he asked the publisher of The National Interest, Dimitri Simes, for the name of Russia’s ambassador to the United States. “On November 9, the day after the election, I could not even remember the name of the Russian ambassador,” Kushner claimed. “When the campaign received an email purporting to be an official note of congratulations from President Putin, I was asked how we could verify it was real. To do so, I thought the best way would be to ask the only contact I recalled meeting from the Russian government, which was the ambassador I had met months earlier, so I sent an email asking Mr. Simes, ‘What is the name of the Russian ambassador?’”

We also know that Mueller’s team has expressed some skepticism about Kushner’s previous public claims — and I would bet money this includes that email.

CNN recently reported, however, that in an interview conducted in the weeks before Flynn’s plea deal, “Mueller’s team asked Kushner to clear up some questions he was asked by lawmakers and details that emerged through media reports.” So Mueller’s team may now have doubts about the explanation Kushner offered for his interest in speaking with Kislyak as one of the first things he did after his father-in-law got elected.

If Mueller has all Jared’s emails and those emails disclose far more about the negotiations with all foreign powers conducted during the transition (including with Bibi Netanyahu on settlements, but obviously also with Russia), and Trump’s people recognize those emails expose Jared to serious charges, then of course they’re going to complain now, as the expectation that Mueller might soon indict Kushner grows.

Mueller has an outline of places where Trump was personally involved

Most importantly, consider what those morons laid out: they want to claim that these emails from the transition period — emails they insist were not government emails — are protected by Executive Privilege.

The legal claim is ridiculous; as I and far smarter people have noted, you don’t get Executive Privilege until you become the actual Executive on inauguration day.

But that they made the claim is telling (and really fucking stupid).

Because that tells us which emails Trump officials believe involve communications directly with Trump. The KT McFarland email, which we know was written from Mar-a-Lago, is a case in point. Did they withhold that because they believe it reflects a conversation with Trump? If so, then we know that Trump was personally involved in the orders to Mike Flynn to ask the Russians to hold off on retaliating for Obama’s sanctions. It might even mean that the language attributed to McFarland — about Russia being the key that unlocks doors, efforts to “discredit[] Trump’s victory by saying it was due to Russian interference, “thrown elections,” and Obama boxing Trump in — is actually Trump’s own language. Indeed, it does sound like stuff he says all the time.

And given that the emails include “speculation about vulnerabilities of Trump nominees, strategizing about press statements, and policy planning on everything from war to taxes,” it might even reflect Trump’s own explanations of why — for example — he couldn’t nominate Flynn to be CIA Director because of his ties to Russia and Turkey.

In the wake of his plea agreement, Flynn’s surrogate made it clear that Trump ordered him to carry out certain actions, especially with Russia. That’s likely a big reason why, in the wake of the Flynn plea, Trump’s people are now squawking that Mueller obtained these emails, emails that may lay out those orders.

Heck. These emails might even reflect Trump ordering Flynn to lie about his outreach to Russia.

Maybe that’s why Trump’s aides have promised to demand Mueller return the emails in question.

All of which is to say, there are things about these emails that explain why this attack is coming now, beyond just a generalized effort to discredit Mueller. The attack is designed to discredit specific avenues of investigation Mueller clearly has in hand. And those avenues reveal far more about the seriousness of the investigation than anything Ty Cobb is willing to claim to appease the President.

That said, the attack is probably too little, too late.

How Does the Strzok Text Dump Differ from Jim Comey’s July 5, 2016 Speech?

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I’m a bit bemused by the response to DOJ’s release of the texts between Peter Strzok and Lisa Page. As Rod Rosenstein testified before HJC yesterday, the release came after notice to Strzok and Page through their lawyers. The release of the texts came with the approval of DOJ IG Michael Horowitz — who says the investigation into the underlying conduct may last through spring. And Rosenstein strongly implied he wanted them released, taking responsibility for it (while claiming not to know whether Jeff Sessions had a role in their release).

As he explained to Trey Gowdy — who, like a number of Republicans, claimed to be at a loss of what to say to constituents who asked “what in the hell is going on with DOJ and the FBI” — the release of the texts proves that any wrongdoing will be met with consequences.

Gowdy: What happens when people who are supposed to cure the conflict of interest have even greater conflicts of interests than those they replace? That’s not a rhetorical question. Neither you nor I nor anyone else would ever sit Peter Strzok on a jury, we wouldn’t have him objectively dispassionately investigate anything, knowing what we now know. Why didn’t we know it ahead of time, and my last question, my final question — and I appreciate the Chairman’s patience — how would you help me answer that question when I go back to South Carolina this weekend?

Rosenstein: Congressman, first of all, with regard to the Special Counsel, Mr. Strzok was already working on the investigation when the Special Counsel was appointed. The appointment I made was of Robert Mueller. So what I’d recommend you tell your constituents is that Robert Mueller and Rod Rosenstein and Chris Wray are accountable and that we will ensure that no bias is reflected in any actions taken by the Special Counsel or any matter within the jurisdiction of the Department of Justice. When we have evidence of any inappropriate conduct, we’re going to take action on it. And that’s what Mr. Mueller did here as soon as he learned about this issue — he took action — and that’s what I anticipate the rest of our prosecutors, the new group of US Attorneys, our Justice Department appointees. They understand the rules and they understand the responsibility to defend the integrity of the Department. If they find evidence of improper conduct, they’re going to take action.

So Congressman, that’s the best assurance I can give you. But actually, there’s one other point, which is you should tell your constituents that we exposed this issue because we’re ensuring that the Inspector General conducts a thorough and effective investigation, and if there is any evidence of impropriety, he’s going to surface it and report about it publicly.

I actually think Rosenstein did a much better job than others apparently do, yesterday, at distinguishing between the Strzok texts (which apparently were on DOJ issued cell phones and, in spite of having Hillary investigation subject lines may not have been logged into Sentinel) and the political views of Andrew Weissmann or the past representation of Jeannie Rhee. Furthermore, he repeatedly said he would only fire Mueller for cause, and made it clear there had been no cause. Several times he talked about how closely he has worked with Mueller, such as on the scope of what gets included in his investigation (even while defending the charges against Manafort as appropriately included).

That said, I wonder how Rosenstein distinguishes, in his own mind, what he did in approving the release of the texts from an ongoing investigation and what Jim Comey did on July 5, 2016, when he gave a press conference about why Hillary Clinton had not been charged. While Rosenstein’s biggest complaint in his letter supporting the firing of Comey was that he substituted his decision for that of prosecutors, he also argued that the Department shouldn’t release derogatory information gratuitously.

Compounding the error, the Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.

In response to skeptical question at a congressional hearing, the Director defended his remarks by saying that his “goal was to say what is true. What did we do, what did we find, what do we think about it.” But the goal of a federal criminal investigation is not to announce our thoughts at a press conference. The goal is to determine whether there is sufficient evidence to justify a federal criminal prosecution, then allow a federal prosecutor who exercises authority delegated by the Attorney General to make a prosecutorial decision, and then – if prosecution is warranted – let the judge and jury determine the facts. We sometimes release information about closed investigations in appropriate ways, but the FBI does not do it sua sponte.

In some ways this is worse because of the off chance that Inspector General Michael Horowitz finds that these texts don’t merit some kind of response; the investigation is not finished yet.

That said, I actually do think there’s a difference: Strzok and Page are department employees, rather than subjects of an external investigation. DOJ exercises awesome power, and usually DOJ is releasing the texts of private citizens in this kind of embarrassing way.

Even former clearance holders seem surprised that these texts were discovered. It is unbelievable to me how few people understand the great liberty that counterintelligence investigators like Strzok can have in obtaining the communications of investigative targets like he has now become, particularly during leak or insider threat investigations. That may not be a good thing, but it is what other targets have been subjected to. So I think it reasonable to have FBI’s own subject to the same scrutiny, for better and worse.

I do think it worthwhile for DOJ to show that it will hold people accountable for improper actions.

Plus, aside from one August comment — which we may obtain more context on when Horowitz does finish this investigation — about an “insurance” policy against Trump, the texts simply aren’t that damning (though they do raise questions about Strzok’s role in the investigation). Strzok agrees with Rex Tillerson, after all, that Trump is an idiot.

So as far as that goes, I’m actually okay with Rosenstein’s release of these texts.

Except I worry about something else.

I actually worry less about Mueller getting fired than just about every other Trump opponent on the planet. Rosenstein seems intent to let him do his work, and (notably at several times during the hearing) seems to agree with the gravity of the investigation. Trump can’t get to Mueller without taking out Rosenstein (and Rachel Brand). And I actually think Rosenstein has thus far balanced the position of a Republican protecting a Republican from Republican ire fairly well. I expect the next shoes Mueller drops — whenever that happens — will change the tone dramatically.

What bothers me most about the release of these texts, however, is that they are a response to the same pressure that Comey was responding to (and which he thought he was smart enough to manage, just as Rosenstein surely thinks he can handle it here).

They are a response — from the same people who ran the Benghazi investigation then ignored DOJ’s prosecution of the Benghazi mastermind — to a willingness to challenge the very core of DOJ functionality, all in a bid to politicize it.

Perhaps Rosenstein is right to bide his time — to create space for Mueller to drop the next few shoes — with the release of the Strzok texts.

But at some point, Republicans need to start calling out Republicans for the damage they’re doing to rule of law with this constant playing of the refs, this demand for proof that Democrats aren’t getting some advantage through the rule of law. If those next shoes don’t have the effect I imagine, it may be too late.

Christopher Wray Was Doing Great Until He Accused Chad of Spewing Jihadist Propaganda

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In his first House Judiciary Committee oversight hearing today, FBI Director Christopher Wray responded to questions about FBI Agent Peter Strzok by explaining there was an ongoing Inspector General investigation into Strzok’s role in the investigation into Hillary’s treatment of classified information more times (at least 16) than he dodged answers in his confirmation hearing (11).

At that level, it was a typical HJC hearing, as each side spent more time pitching their partisan spin (with Democrats asking a string of questions Wray was unable to answer about Russia) rather than — with a few exceptions — conducting much oversight.

That said, I really appreciated two aspects of Wray’s testimony today. First, with the very notable exception of FISA matters (specifically, any FISA applications tied to Trump’s associates, and whether they derived in any way from the Steele dossier), Wray seemed genuinely willing to accept HJC’s mandate to conduct oversight.

As I’ve already noted, I get that HJC can be full of partisan hacks. But it is also the case that the Executive branch, particularly something as powerful as the FBI, must be subject to the oversight requests of Congress. And under both the Bush and Obama Administrations, FBI and DOJ largely treated their oversight committees with (sometimes deserved, but often undeserved) contempt. Even where Wray was bullshitting members of Congress, such as when he pretended that moving Strzok to human resources wasn’t a demotion, he at least appeared to treat their inquiries with respect.

Perhaps, if it is treated with respect it sometimes doesn’t deserve, HJC will come to become the committee FBI and DOJ need as an oversight body.

The other thing I appreciated — particularly in the wake of Jim Comey’s treatment of everything as a fight between “good guys” and “bad guys” — was Wray’s repeated invocation of the humanness of FBI and its officials. For example, in what must have been a rehearsed response to a question about the reputation of the FBI, Wray said, “Do we make mistakes? You bet we make mistakes. Just like everyone who is human makes mistakes,” before describing how the IG (which is currently investigating Strzok) provides the opportunity to “hold our folks accountable, if that’s appropriate.” Somewhat less convincingly, in response to a question from Cedric Richmond, who cleverly noted that the FBI Headquarters is still named after the architect of COINTELPRO, J Edgar Hoover, Wray again stressed the humanity of FBI. “It’s something we’re not proud of but it is also something we’ve learned from … We’re human, we make mistakes. We have things that we’ve done well. We’ve had things we done badly, and when we’ve done badly we try to learn from them.”

Given FBI’s intransigence on back door searches and Wray’s own evolving understanding of the problems caused by the designation Black Identity Extremist (not to mention what appears to be undeserved self-congratulation about how many — or rather few — open investigation into white supremacist terrorists the FBI has) I’m not convinced the FBI really has learned those lessons. It is still too white and too male of an organization to understand how much it polices some of the same things COINTELPRO did, and with even more intrusive tools.

But I am heartened that the FBI Director, perhaps largely because of the focus on Strzok, publicly recognized that FBI is not always the good guy, contrary to what Comey internalized and evangelized over and over. In discussions with Karen Bass about the BIE designation, too, it sounded like he was at least able to listen, even if he refused to withdraw the intelligence report that created the designation.

That said, Wray made several outright errors that need to be corrected.

The first two, both about Section 702, came in response to questions by Ted Poe (who was one of just a few people to raise Section 702, in spite of the fact that I’ve heard from numerous staffers they can’t get answers about key aspects of how 702 works). First, addressing Poe’s claim that back door searches are abusive, Wray claimed that courts that had considered the querying had found it to be consistent with the Fourth Amendment.

Every court, every  court, to have looked at the way in which Section 702 is handled, including the querying, has concluded that it’s being done consistent with the Fourth Amendment.

As the EFF laid out, that’s not actually true. The Ninth Circuit punted on precisely the issue of back door searches.

When Wray mentions the Ninth Circuit, he is likely referencing a 2016 decision by the U.S. Court of Appeals for the Ninth Circuit. In the opinion for USA v. Mohamed Osman Mohamud, the appeals court ruled that, based on the very specific evidence of the lawsuit, data collected under Section 702 did not violate a U.S. person’s Fourth Amendment rights. But the judge explicitly wrote that this lawsuit did not involve some of the more “complex statutory and constitutional issues” potentially raised by Section 702.

Notably, the judge wrote that the Mohamud case did not involve “the retention and querying of incidentally collected communications.” That’s exactly what we mean when we talk about “backdoor searches.”

Wray is mischaracterizing the court’s opinion. He is wrong.

In addition, Wray claimed that,

The individuals that are incidentally collected — the US person information that is incidentally collected — are people that are in communication with foreigners who are the subject of foreign intelligence investigations, so like an ISIS recruiter, there’s a US person picked up, that person would have been in email contact, for example, with an ISIS recruiter.

While I’m not certain precisely what gets dumped into the FBI database that is queried, it is false to claim that every US person who has information collected would necessarily have been in communication with the target. That’s because PRISM providers are cloud storage providers and NSA gets anything a target stores and then some, and because people email very interesting stuff to each other all the time. That means there’s a whole bunch of other things that might implicate US persons swept up in the PRISM collection that gets shared, in raw form, with the FBI.

I wanted to point to an assumption virtually everyone has been making about PRISM collection and its suitability for back door searches that may not be valid. If you think about the hack-and-leak dumps in recent years, for example, often the most damaging, as well as the most ridiculous infringements on privacy, involve email attachments, such as the list of most Democratic members of Congress’ email many passwords for which were easily obtainable online, or phone conversations about routine housekeeping or illness. And that’s just attachments; most of the PRISM providers are actually cloud storage providers, in addition to being electronic communication providers, and from the very first requests to Yahoo there was mission creep of all the types of things the government might demand.

And while NSA and FBI aren’t supposed to keep stuff that doesn’t count as foreign intelligence or criminal information, it’s clear (from the WaPo report) that NSA, at least, does.

So as we talk about how inappropriate the upstream back door searches were and are because they can search on stuff that’s not foreign intelligence information, we should remember that the very same thing is likely true of back door searches of  the fruits of searches on a person’s cloud storage account.

Plus, while the example of an ISIS recruiter makes for good show, the targets will also include people like Chinese scientists and Russian businessmen, among other things. There are completely innocent reasons — like science!!! — to speak to such targets. And yet if FBI does a back door search on Americans who’ve engaged in such innocent discussions it can and almost certainly has led to innocent people being targeted unfairly.

It bothers me that me — a dirty fucking hippie blogger, though admittedly one who has become (as a Congressional staffer introduced me as earlier this year) as expert on FISA as anyone outside of government — knows these details better than the FBI Director (who, after all, was involved in not providing defendants adequate notice of this stuff during its illegal go-around under Stellar Wind).

But Wray’s biggest error, on a different topic, came later. After first dodging Pramila Jayapal’s questions about whether Trump’s tweets have contributed to the spike of hate crimes this year by suggesting the data was untrustworthy (!!!), Director Wray than answered her question about the Muslim ban this way.

An awful lot of our terror investigations do also involve immigration violations, so there is a close nexus between immigration violations and counterterrorism investigations, and an awful lot of the terrorist investigations we have involve global jihadist rhetoric, which is disproportionately concentrated in certain countries.

One reason terror investigations involve immigration violations is because that’s an easy way to punish someone who hasn’t actually committed any crime (and given that most terrorist attacks are not recent immigrants, sort of beside the point).

But the notion that immigration from Muslim majority countries — like the six included in the current Muslim ban: Iran, Libya, Syria, Yemen, Somalia, and Chad — is dangerous because global jihadist rhetoric arises from those countries is the height of nonsense. That’s because the most effective recruiter of Americans for almost a decade was a man, Anwar al-Awlaki, who wrote much of his propaganda here or in the UK; while his rhetoric subsequently did get published from Yemen, he’s been dead for 6 years, with far less jihadist rhetoric in English from there. And while Syria, Somalia, and Libya do export hateful rhetoric, so did Iraq and does Saudi Arabia and Pakistan, two countries we haven’t banned. Iran certainly exports a great deal of anti-American rhetoric, but it is not recruiting terrorists here and most of its anti-American actions are legitimate state-based opposition derived from power relations, not religion. And Awlaki is by no means the only producer of anti-American rhetoric in majority Christian countries, including but not limited to the US and UK.

Ultimately, of course, Jayapal was talking about Trump’s Muslim ban, the one that bans elite Venezuelans and North Koreans along with weaker Muslim ones. And while he didn’t go as far as to say that Kim Jong-Un was spewing jihadist rhetoric, that’s the logic here.

But by implication, he was talking about Chad, which in spite of its cooperation on terrorism, got added to the list because Trump is incompetent. To suggest Chad is a propaganda threat and the US and UK are not is the height of folly.

But that’s what the FBI Director claimed today to avoid criticizing Trump’s bigotry.

Update: For some reason I was writing Cedric Richmond’s last name wrong all day today. I’ve corrected my use of “Johnson” instead of “Richmond” here. My apologies to him for my still uncorrected tweets.