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The COVID Delay Should Give Reggie Walton First Pass at the Roger Stone Unsealing

Back when Reggie Walton ordered DOJ to give him a copy of the Mueller Report to review the exemption claims, I suggested that Judge Walton was unlikely to make much more public, except that his review might speed the process of liberating the material on Roger Stone that had been withheld under Amy Berman Jackson’s gag.

Be warned, however, that this review is not going to lead to big revelations in the short term.

There are several reasons for that. Many of the most substantive redactions pertain to the Internet Research Agency and Roger Stone cases. Gags remain on both. While Walton is not an Article II pushover, he does take national security claims very seriously, and so should be expected to defer to DOJ’s judgments about those redactions.

Where this ruling may matter, though, is in four areas:

  • DOJ hid the circumstances of how both Trump and Don Jr managed to avoid testifying under a grand jury redaction. Walton may judge that these discussions were not truly grand jury materials.
  • DOJ is currently hiding details of people — like KT McFarland — who lied, but then cleaned up their story (Sam Clovis is another person this may be true of). There’s no reason someone as senior as McFarland should have her lies protected. All the more so, because DOJ is withholding some of the 302s that show her lies. So Walton may release some of this information.
  • Because Walton will have already read the Stone material — that part that most implicates Trump — by the time Judge Amy Berman Jackson releases the gag in that case, he will have a view on what would still need to be redacted. That may mean more of it will be released quickly than otherwise might happen.
  • In very short order, the two sides in this case will start arguing over DOJ’s withholding of 302s under very aggressive b5 claims. These claims, unlike most of the redactions in the Mueller Report, are substantively bogus and in many ways serve to cover up the details of Trump’s activities. While this won’t happen in the near term, I expect this ruling will serve as the basis for a similar in camera review on 302s down the road.

But because of the COVID-related delay in Walton’s review, it’s likely he’ll make a first pass on the Roger Stone declassification, making it far harder for Bill Barr to politicize the release like he has the 302s.

Walton issued his order commanding DOJ to give him an unredacted version of the Mueller Report on March 5. DOJ complied with that order and delivered the report (and two other pages at issue in the lawsuit) on March 30. However, that same day, Walton issued a minute order stating that, because of Chief Judge Beryl Howell’s order suspending operations at the courthouse, he would be unable to start the review until April 20.

However, in light of the Chief Judge Howell’s March 16, 2020 Order Regarding Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic, Standing Order No. 20-9 (BAH), the Court’s review of the unredacted version of the Mueller Report is unable to occur until the Court resumes its normal operations on April 20, 2020, unless the Court’s normal operations are further suspended due to the COVID-19 pandemic. Signed by Judge Reggie B. Walton on March 30, 2020.

He even suggested that if operations were further suspended (as they have been), the review might be further delayed — though EPIC made a case that the review is an essential function and should start on April 20 (that is, yesterday).

EPIC respectfully submits that in camera review of the Mueller Report is an essential function warranting the Court’s prompt attention.

[snip]

Time is of the essence in this case. It is vital that the American citizenry know the full extent of Russian interference in the 2016 presidential election before casting their votes in the 2020 presidential election, now just 200 days away. And it is vital that there be judicial review of the DOJ’s asserted exemptions that prevent public release of relevant information contained within the Mueller Report.

Walton has not indicated in the docket whether he started the review yesterday or not.

That said, once he does get around to the review, it will be far more substantive than it otherwise might. That’s because, days before Walton said he would conduct this review, ABJ issued her opinion denying Stone’s bid for a new trial. In her order, she released Stone from her gag.

Also, as of the date of this order, the defendant and his attorneys are hereby released from the media communication order of February 15, 2019 [Dkt. # 36], the minute order of February 21, 2019, and the order of July 17, 2019, [Dkt. # 149], although all other Court orders, including those related to the confidentiality of materials, and all other conditions of the defendant’s release, remain in place.

That means several of the exemptions invoked to hide Roger Stone’s efforts to optimize the WikiLeaks releases — everything under a b7A or b7B exemption starting on page 52 and in some other places — no longer apply. And given the way the timing has worked out, Reggie Walton will have first dibs on deciding whether President Trump’s personal involvement in Stone’s effort is entitled to any privacy consideration.

It may take Walton a while to get through this stuff (particularly if the 71-year old judge decides COVID threats prevent him from starting). But he should be able to get first review of what gets unsealed now.

Meanwhile, there’s another imminent source of more transparency coming.

Back in February 2019, a bunch of media outlets moved to get the warrants,

associated with the application for, issuance of, and returns regarding warrants related to the Russia Investigation generally and the Stone prosecution in particular.

The government interpreted that request this way:

It is unclear whether the movant’s request is limited to warrants issued pursuant to Rule 41 or also includes warrants under the SCA. In an abundance of caution, the government is treating the request as covering both categories. It is similarly unclear whether the reference to “warrants relevant to the Prosecution of Roger J. Stone, Jr.” means only warrants to search Stone’s property and facilities or includes other warrants that were executed as part of the same line of investigation. Again, in an abundance of caution, the government is treating the request as covering both categories.3

3 The government does not understand the request to include warrants that were not related to Stone or that line of investigation but that merely happened to yield evidence that concerns Stone and is being provided to him in discovery.

Back in January, the government said it could release the materials most closely related to Stone.

MR. KRAVIS: Yes, Your Honor. We believe that there are some materials in the warrant affidavits that can now be unsealed — in the affidavits that are responsive to the access request that can now be unsealed in light of the conclusion of the Roger Stone trial.

THE COURT: All right.

MR. KRAVIS: However, there are other materials in those warrant affidavits that the government believes should remain under seal either because those materials relate to other pending investigations — that is, investigations other than the one that culminated in the Roger Stone trial — and materials that implicate the privacy and reputational interests of uncharged third parties. And so the government’s request at this point is for the Court to set a deadline — the government would propose 60 days — for the government to go back and review the search warrant affidavits that are responsive to the movant’s access requests and make a recommendation to the Court as to which materials can be unsealed and which materials should remain under seal. And then the Court would have an opportunity to hear from Mr. Stone on that point, and then the Court could decide how to handle the matter from there.

Based on that schedule, the government submitted 33 exhibits — each of them, presumably, a warrant application — under seal for the court’s review.  After Judge Christopher Cooper ordered the government to give Stone a copy of the warrants so he could argue to redact more of the affidavits, the government asked that the protective order from the trial extend to these warrants because, “not all of them were previously provided to counsel for Mr. Stone in criminal discovery.”

After getting a COVID-related extension, Stone and his lawyers have until Friday to object to the privacy and grand jury related redactions in the warrants in question.

The upcoming release of warrants targeting Stone is interesting not least because we may see why he was investigated for hacking and wire fraud (though those are the kind of affidavit filings Stone once said they would fight to keep sealed). But filings in his case (this ABJ opinion is the most detailed) described that he received just 18 warrants in discovery. Which means there are 16 warrant applications that Stone had not seen before a few weeks ago, which either targeted people like Jerome Corsi and Randy Credico (and maybe even Steven Bannon and Ted Malloch), or of a scope previously unknown.

In the pandemic era, things have a way of getting delayed. And Stone has made it clear he’ll try to hide details explaining why the FBI thought he might have liability under the CFAA.

But as we’ve been focused on COVID, the release of Stone-related materials in the wake of his trial has inched closer.

Update: Judge Walton scheduled a status conference for June 18, which will likely be the earliest that we might learn what else he’ll release. And Stone submitted their response on the 33 warrants this morning, under seal.

Update: Stone did not object to the government’s redactions, so Judge Cooper ordered the government to release the warrants (there are actually 33, not 34 as I initially wrote) on Tuesday. The redactions include non-public information on pending investigations.

Trump Puts his Rasputin Guy, Michael Caputo, at Department of Health and Human Services During a Pandemic

As Politico reported yesterday, in a bid to marginalize Alex Azar (who has been largely silenced in the middle of a pandemic since Rod Rosenstein’s sister Nancy Messonier told the truth in public), Trump has made Michael Caputo the spokesperson at Department of Health and Human Services.

The move is interesting for several reasons. It suggests the White House believes the way to control a Senate-confirmed cabinet member is to hire a spokesperson for that person, not to replace him or work out problems with him.

The move is designed to assert more White House control over Health and Human Services Secretary Alex Azar, whom officials believe has been behind recent critical reports about President Donald Trump’s handling of the coronavirus pandemic, according to two officials with knowledge of the move.

That, in turn, suggests that in the middle of a pandemic, Trump’s White House is treating HHS as a PR shop, not a functional agency.

But the far more interesting aspect of this hire is that, as recently as February 3, Bill Barr’s DOJ claimed in FOIA exemptions on Caputo’s FBI interview report that it was conducting an ongoing investigation into something Caputo did during the 2016 election — possibly with Roger Stone — called Project Rasputin. What Project Rasputin was is redacted in the 302. But whatever it was is closely enough connected with his and Stone’s willingness to take a meeting with a Russian selling dirt on Hillary Clinton that Caputo told Mueller’s team that, “‘Project Rasputin’ was mutually exclusive from anything having to do with” the guy selling that dirt.

Of course, on precisely the same day that Bill Barr’s DOJ released materials indicating it was still investigating something called Project Rasputin that Caputo had been involved in, Barr replaced then DC US Attorney Jesse Liu, who had permitted the Roger Stone investigation and prosecution to proceed unmolested by the kind of unprecedented interference that Barr would engage in just days later. Which raises questions about whether Trump doesn’t care that his own DOJ was still investigating something Caputo did in 2016, or whether Barr saw to it that investigation ended, making Caputo hirable for the first time in Trump’s Administration.

When I asked Caputo what Project Rasputin was, he simply responded by tweeting a picture of the charlatan advisor to a czar, a picture he has since deleted (along with a bunch of other Tweets he purged before taking this position).

Ah well. I’m glad that Trump’s desperation to stop Azar from telling the truth about how the President ignored sound medical advice in favor of conspiracy theories will provide yet another pressing reason to ask Reggie Walton to fully declassify the 302s describing this project.

At First, KT McFarland Told a Similarly Misleading Version of the Story Mike Flynn Will Be Pardoned For

In his abundant free time, the President tweeted about pardoning Mike Flynn on Sunday.

According to Matt Gertz, this was a response to a Lou Dobbs segment with John Solomon where Dobbs said there are 302s that “can’t be found.” Per transcripts Gertz shared, this is a reference to Sidney Powell’s claim — repeated with Dobbs the day before — that the first draft of Flynn’s 302 is missing (she also complained that Flynn never received a January 2017 memo stating that DOJ did not believe Flynn was an agent of Russia, which is unrelated to whether he was an agent of Turkey or lied to the FBI about his interactions with Russia).

Emmet Sullivan has already judged Trump’s complaint to be baseless

In December, Emmet Sullivan already judged this complaint to be baseless because the notes written before any “original 302” and all the 302s already provided Flynn track each other and the 302s consistently capture Flynn’s lies.

Mr. Flynn speculates that the government is suppressing the “original 302” of the January 24, 2017 interview, Def.’s Reply, ECF No. 133 at 28; he claims that the lead prosecutor “made it sound like there was only one 302,” id. at 29; and he makes a separate request for the FBI to search for the “original 302” in one of the FBI’s databases, id. at 28-30. In Mr. Flynn’s view, the “original 302”—if it exists—may reveal that the interviewing FBI agents wrote in the report “their impressions that [Mr.] Flynn was being truthful.” Id. at 28. Mr. Flynn claims that the FBI destroyed the “original 302” to the extent that it was stored in the FBI’s files. Id. at 30. Comparing draft FD-302s of Mr. Flynn’s January 24, 2017 interview to the final version, Mr. Flynn claims that the FBI manipulated the FD-302 because “substantive changes” were made after reports that Mr. Flynn discussed sanctions with the Russian Ambassador “contrary to what Vice President Pence had said on television previously.” Id. at 14-15. Mr. Flynn points to the Strzok-Page text messages the night of February 10, 2017 and Ms. Page’s edits to certain portions of the draft FD-302 that were “material.” Def.’s SurSurreply, ECF No. 135 at 8-9.

To the extent Mr. Flynn has not already been provided with the requested information and to the extent the information exists, the Court is not persuaded that Mr. Flynn’s arguments demonstrate that he is entitled to the requested information. For starters, the Court agrees with the government that there were no material changes in the interview reports, and that those reports track the interviewing FBI agents’ notes.

[snip]

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.” Gov’t’s Surreply, ECF No. 132 at 4-5. The Court rejects Mr. Flynn’s request for additional information regarding the drafting process for the FD-302s and a search for the “original 302,” see Def.’s Sur-Surreply, ECF No. 135 at 8- 10, because the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD-302, and Mr. Flynn’s own admissions of his false statements make clear that Mr. Flynn made those false statements.

Even though a judge has already ruled that this complaint is baseless, Trump took a break from mismanaging a pandemic to inch closer to a Flynn pardon based on it.

Given the increasing likelihood Trump will use the cover of the epidemic to pardon Flynn, it’s worth pointing to another set of evidence that Flynn’s prosecution for lying was sound: he’s not the only one who tried to cover up the Trump Transition’s efforts to undercut President Obama’s sanctions on Russia.

Like Flynn, KT McFarland hid Trump Transition efforts to undercut sanctions at first

In FBI interview reports (302s) released in the BuzzFeed/CNN FOIAs, some details of KT McFarland’s interviews prior to his guilty plea have been released. McFarland was interviewed four times before Flynn’s plea deal became public: August 29 (this 302 has not yet been released), September 14, October 17, and October 19, 2017.  Those 302s show that, at first, KT McFarland downplayed the Trump Transition efforts to undermine Obama’s sanctions on Russia that Mike Flynn got fired and prosecuted for (as well as tried to protect Jared Kushner in his role trying to undercut Obama policies on Israeli settlements).

McFarland’s first interview, on August 29, came in the wake of Mueller’s team acquiring Transition emails from the General Services Administration without notice to the campaign, followed by a warrant to read them. It’s likely her (still unreleased) initial interview and the beginning of her second one were based off a presumption that some emails making it clear the Transition had discussed sanctions would not get shared with Mueller’s team. When she got showed them, she claimed not to remember all details about them.

Her initial interview, as noted, has not been released. The unredacted passages from her second one (she did all pre-Flynn interviews without a lawyer, but in the presence of her spouse, who is a lawyer) show she shaded the truth about things she should have known the FBI had counter-evidence to. (In what follows, I’m bolding things she said in early interviews that her later testimony contradicts.)

For example, in that second interview, McFarland professed to not recall who attended a Presidential Daily Brief on December 28, 2016 where sanctions were discussed.

McFarland was shown a calendar entry for December 28, 2016 and confirmed the entry would have represented a PDB. She sat in the briefing, but did not recall who was there besides [Deputy Director of National Intelligence Edward] Gistaro. It was a small number of people and it took place in a basement studio apartment in the hotel.

Note: Gistaro had already testified at least once before this interview, on June 14, but that was likely focused on Trump’s demand that Dan Coats “help with the [Russian] investigation.” But it’s certainly possible his is one of the interviews in the interim that remain undisclosed.

In addition to her vague memories about meetings at Mar-a-Lago, McFarland also claimed she “did not recall any conversations she may have had with Flynn the day sanctions were announced.” While her description of what Flynn told her about his call with Sergey Kislyak is largely redacted, it’s clear she told the FBI it pertained to “Russian President Putin’s desire for a contemporary video conference after the inauguration.” This is the cover story Flynn asked her to tell the press in January 2017, and it’s part of what Flynn got fired for. Yet she was still relying on it in an interview with the FBI seven months later.

In her third interview, McFarland admitted that sanctions may have come up, but claimed again not to have specific knowledge of it.

News that the Obama Administration planned to impose sanctions on Russia started to come out on December 28, 2016, but they had not been officially announced and specifics were unknown. Sanctions were just one of “several and many things” going on at that time. McFarland, who was in Mar-a-Lago with the President-elect, did not recall what specific conversations she had at which times or to whom she spoke, but sanctions were in the news so it would make sense to her they were among the topics discussed.

In this interview report, McFarland’s explanation for an email involving Tom Bossert discussing sanctions is redacted, but the unredacted parts claim,

McFarland never discussed the specific terms of the sanctions with anyone. She would have told Michael Flynn about how the session with the President-elect went during one of their phone calls.

This claim would have been especially sketchy to the FBI since Flynn had already told the FBI, in January, that he only learned about sanctions from those at Mar-a-Lago.

McFarland also claimed not to remember what she discussed with Flynn when.

She did not have specific recollections about the times of the calls with Flynn or what was discussed in which call. Flynn mentioned several times several issues he intended to discuss with the Russians, and McFarland believed she would have given her theories about the sanctions.

McFarland’s memory started to grow clearer after outlines of Flynn’s testimony were released when he pled guilty on December 1, 2017.

McFarland’s post-Flynn plea memories grow significantly clearer

As the Mike Flynn cooperation addendum laid out, one reason Flynn’s reluctant cooperation was useful is it led others — including, but not limited to, McFarland — to unforget the truth.

[T]he defendant’s decision to plead guilty and cooperate likely affected the decisions of related firsthand witnesses to be forthcoming with the SCO and cooperate. In some instances, individuals whom the SCO interviewed before the defendant’s guilty plea provided additional, relevant details about their knowledge of key events after his cooperation became publicly.

Days after Flynn’s guilty plea, on December 5, she must have realized that he had given testimony that contradicted hers and informed FBI agents she was in the process of lawyering up. McFarland asked one of the FBI Agents she had been interacting with for the Tom Bossert and Mike Flynn emails she had already testified about, which were included in a December 2 NYT story on Flynn’s plea.

McFarland asked whether SSA [redacted] could provide two emails which he and SA [redacted] had shown to her in her interviews. She did not have the emails, but they were now apparently widely held, including by the New York Times, which published, but grossly misrepresented them. The emails were one from her dated December 29, 2016 in which she discussed President Obama’s three political objectives in imposing sanctions and mentioned Flynn’s scheduled call with the Russian ambassador that evening; and an email from Flynn to her the next day, December 30, 2017, in which Flynn reported on his conversation with the ambassador. McFarland felt she was at a a disadvantage since “everyone in the world” had copies of the emails except for her.

McFarland’s fourth 302 — which the Mueller Report heavily relies on — is heavily redacted. But what’s not redacted shows McFarland remembering details about conversations she had had about sanctions that she had professed not to remember in her earlier interviews.

McFarland and Bannon met on December 29. [redacted] but they also talked about sanctions. [redacted] Bannon told McFarland the sanctions would hurt their ability to have good relations with Russia. [redacted] Bannon thought a Russian escalation would make things more difficult. McFarland thought she told him Flynn was scheduled to talk to the Russian ambassador later that night. [redacted]

McFarland stated that she may have run into Priebus and given him a short version of her conversation with Bannon about the sanctions. [redacted] She may have told Priebus that Flynn was scheduled to talk to the Russian ambassador that night, but was not sure.

[redacted]

McFarland and Flynn spoke on the telephone at around 4:00 pm on December 29.

[redactions and snip]

McFarland knew before the [sic] Flynn’s call that Flynn was going to feel out the Russian ambassador on the overall relationship, knowing that the sanctions would influence it.

There’s a heavily redacted section that nevertheless shows that McFarland provided significant details about the meeting with Trump on December 29 (including that Trump “said he had reason to doubt it was the Russians” who had hacked the DNC). Even with the redactions, it’s clear she discussed what might happen with the sanctions at that meeting. And she admitted that “someone may have mentioned Flynn’s scheduled call with Kislyak as they were ending the meeting.”

Additionally, McFarland laid out all the details of conversations with Flynn she had previously claimed not to remember, both before and after his calls with Kislyak.

[Flynn] told McFarland the Russian response was not going to be escalatory because they wanted a good relationship with the Trump administration.

[snip]

When Flynn and McFarland spoke on December 31, Flynn told McFarland he talked to the Russian ambassador again. He said something to the effect of “Well, they want a better relationship. The relationship is back on track.” Flynn said it was a good call and he thought his own call had made a difference but not the only difference. [redacted] McFarland congratulated Flynn for his work.

In short, contrary to what she claimed in her earlier interviews, McFarland proved she had memories of:

  • Discussions she had with at least Steve Bannon about sanctions before Flynn’s call with Sergey Kislyak, and possibly Reince Priebus
  • The specific times of at least some of her calls with Flynn
  • Details of the meeting at which sanctions were discussed with Trump
  • Specific details of calls between her and Flynn, both before and after his calls with Kislyak

McFarland is not the only one whose memory grew clearer after it became clear Mueller had heard at least one truthful version of what had transpired in late December 2017; the story Bannon initially told, even after Flynn’s plea, almost certainly evolved as well (his later interviews have been withheld thus far, but we know his memories about the WikiLeaks releases got clearer over time). Reince Priebus’ first interview, on October 13, 2017, has not yet been released. The tiny unredacted bits of Priebus’ Janaury 18, 2018 interview, conducted in the wake of Flynn’s plea, showed that he hedged but did admit they may have discussed Flynn’s call in advance.

The consistency with which those who were present at Mar-a-Lago on December 29, 2017 tried not to remember discussing sanctions in advance of General Flynn’s calls, much less what might have gone down with Trump, suggests this is not a matter of Flynn being a rogue liar. Rather, it suggests a concerted effort to downplay what happened and to minimize any involvement Trump had in it, one that was undercut by Flynn’s plea deal.

One story downplaying efforts to undermine sanctions is a lie; multiple stories is a cover-up

That’s why no one should credit Trump’s claims to believe that Flynn was mistreated in his prosecution. Not only has Judge Sullivan ruled that it’s not true, but the available evidence — even with proof that Bill Barr’s DOJ is abusing the FOIA response process to hide the true extent of all this — shows that multiple people with consistent memories of what happened at Mar-a-Lago on December 29, 2017 initially professed not to remember what happened that day.

That’s not Flynn being ambushed and improperly prosecuted. That’s Flynn — who up until he decided to plead guilty was part of the Joint Defense Agreement with the President and others — being the first break in an effort to cover-up what really went down.

And the public record has one more highly damning detail that shows Flynn knew from the start that this was a cover-up.

In the section of the Mueller Report incorporating details Flynn and McFarland unforgot in November and December 2017, it reveals that Flynn intentionally excluded the details about the Kislyak follow-up call about sanctions when he sent McFarland a text message reporting on the call.

The next day, December 30, 2016, Russian Foreign Minister Sergey Lavrov remarked that Russia would respond in kind to the sanctions. 1262 Putin superseded that comment two hours later, releasing a statement that Russia would not take retaliatory measures in response to the sanctions at that time. 1263 Hours later President-Elect Trump tweeted, “Great move on delay (by V. Putin).” 1264 Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.1267

[snip]

According to McFarland, Flynn remarked that the Russians wanted a better relationship and that the relationship was back on track. 1270 Flynn also told McFarland that he believed his phone call had made a difference. 1271 McFarland recalled congratulating Flynn in response. 1272 [my emphasis]

In her second interview, months before she unforgot that they had had a self-congratulatory conversation about Flynn’s success in undermining Obama’s efforts to punish Russian for interfering in the election, McFarland also claimed not to be concerned that Flynn hadn’t mentioned sanctions in a text he sent her after the call. “She did not recall being concerned that Flynn did not mention sanctions in this email.”

Except that it would not be a matter of concern. It would be a matter of knowing that Flynn had created a false record of what happened. And months later, she would admit that she did know that was a false record. This appears to be the text (which she forwarded as an email) that she tried to obtain from the FBI once she realized that Flynn had flipped.

None of this will prevent Trump from pardoning Flynn. But it does provide reason why Judge Reggie Walton should review the 302s of those involved in the December 2017 events even as he reviews the full Mueller Report, which almost certainly includes an explanation of why Mueller did not charge McFarland for her initial misleading comments. The public deserves to have all the evidence that, in pardoning Flynn, Trump won’t be pardoning someone he believes to have been ambushed and who as a result told a misleading story. He’ll be pardoning the one person who paid a price for covering up the Trump Transition’s efforts to undercut sanctions imposed to punish Russia for tampering in the 2016 election.

In a Totally Unresponsive Response to Reggie Walton’s Order, Kerri Kupec Does Not Deny that Bill Barr Misrepresented the Mueller Report

Yesterday, Bill Barr’s flack Kerri Kupec issued a statement purporting to rebut what Reggie Walton (whom she didn’t name) wrote in his scathing opinion suggesting that Barr’s bad faith misrepresentations of the Mueller Report meant he couldn’t trust DOJ’s representations now about the FOIA redactions in it.

Yesterday afternoon, a district court issued an order on the narrow legal question of whether it should review the unredacted Special Counsel’s confidential report to confirm the report had been appropriately redacted under the Freedom of Information Act. In the course of deciding that it would review the unredacted report, the court made a series of assertions about public statements the Attorney General made nearly a year ago. The court’s assertions were contrary to the facts. The original redactions in the public report were made by Department attorneys, in consultation with senior members of Special Counsel Mueller’s team, prosecutors in the U.S. Attorney’s Office, and members of the Intelligence Community. In response to FOIA requests, the entire report was then reviewed by career attorneys, including different career attorneys with expertise in FOIA cases–a process in which the Attorney General played no role. There is no basis to question the work or good faith of any of these career Department lawyers. The Department stands by statements and efforts to provide as much transparency as possible in connection with the Special Counsel’s confidential report. [my emphasis]

It is being treated as a good faith response to what Walton wrote.

Except it’s not. It’s entirely off point.

Walton’s explanation for why he will conduct his own review of the the Mueller Report redactions doesn’t focus on the FOIA response itself. He addresses what happened before the redacted version of the Mueller Report was first released, before the FOIA review actually started.

The Court has grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report and its impacts on the Department’s subsequent justifications that its redactions of the Mueller Report are authorized by the FOIA.

[snip]

the Court is troubled by his hurried release of his March 24, 2019 letter well in advance of when the redacted version of the Mueller Report was ultimately made available to the public. The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report—a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report. [my emphasis]

That process preceded the FOIA response entirely, so the part of Kupec’s statement talking about the “good faith” of the “career Department lawyers” (of the sort that Barr is undermining with glee elsewhere) is irrelevant. And Kupec’s claim that Barr was not involved in that later process is also unrelated to whether he was involved in the initial redaction process, a question she doesn’t address.

As Walton notes, the redactions in the FOIA release exactly match those in the initial release, though the justifications are entirely different, which may mean those career attorneys had to come up with exemptions to match the outcome of the process in which Barr was involved.

[D]espite the Department’s representation that it “review[ed] the full unredacted [Mueller] Report for disclosure pursuant to the FOIA,” Brinkmann Decl. ¶ 11, the Court cannot ignore that the Department’s withholdings under the FOIA exemptions mirror the redactions made pursuant to Attorney General Barr’s guidance, which cause the Court to question whether the redactions are self-serving and were made to support, or at the very least to not undermine, Attorney General Barr’s public statements and whether the Department engaged in post-hoc rationalization to justify Attorney General Barr’s positions.

Kupec doesn’t even try to address the central claim of Walton’s opinion: that Barr’s public statements — about whether the report showed “coordination” or “collusion,” and about whether it showed Trump obstructed the investigation — conflict with what it already evident in the unredacted parts of the redacted Report.

As noted earlier, the Court has reviewed the redacted version of the Mueller Report, Attorney General Barr’s representations made during his April 18, 2019 press conference, and Attorney General Barr’s April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.

These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility and in turn, the Department’s representation that “all of the information redacted from the version of the [Mueller] Report released by [ ] Attorney General [Barr]” is protected from disclosure by its claimed FOIA exemptions. Brinkmann Decl. ¶ 11 (emphasis added). In the Court’s view, Attorney General Barr’s representation that the Mueller Report would be “subject only to those redactions required by law or by compelling law enforcement, national security, or personal privacy interests” cannot be credited without the Court’s independent verification in light of Attorney General Barr’s conduct and misleading public statements about the findings in the Mueller Report, id., Ex. 7 (April 18, 2019 Letter) at 3, and it would be disingenuous for the Court to conclude that the redactions of the Mueller Report pursuant to the FOIA are not tainted by Attorney General Barr’s actions and representations.

That is, Walton judges that Barr’s lies about the Mueller Report tainted the subsequent process, no matter how many career Department attorneys were involved.

Significantly, Kupec offers no rebuttal — none — to Walton’s judgement that Barr misrepresented what the Report showed.

As I have noted, it’s unlikely Walton will release much more than was originally released (though he will surely be prepared to release all of the Roger Stone related materials once Amy Berman Jackson lifts that gag). But the three or four places where he might all undermine the tales that Barr told about the Report. Unsealing those redactions would:

  • Explain how the President and his son failed to cooperate
  • Confirm that his son (and possibly his son-in-law) was a subject of the investigation
  • Reveal how several of Trump’s flunkies told concerted lies before they decided to start telling the truth
  • Show why Mueller seriously considered indicting Stone — and possibly even the President himself — for their actions encouraging the hack-and-leak operation

Moreover, on one key point — the redactions for privacy that in the FOIA review were exempted under b6 and b7C — Barr’s initial claims about redactions are an obvious lie: he said those redactions hid “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.” Among the people the initial review treated as “peripheral third parties” are Donald Trump Jr. and Deputy National Security Advisor KT McFarland; in Judge Jackson’s review in the Roger Stone trial, redactions protecting privacy and reputational interests even included the President himself.

Importantly, Walton’s in camera review will be critical for the next step, which will be a review of DOJ’s unprecedented b5 exemptions, which already show abundant evidence of politicization (and in which there is good reason to believe Barr has been involved). By reading the declination decisions pertaining to people like KT McFarland, Walton will understand how improper it is to redact her later 302s while releasing her earlier, deceitful ones.

If Kupec would like to do her job rather than play a key role in Barr’s ongoing propaganda effort about the Report, she can explain what role Barr had in that initial review, something not addressed in her off point comment. Even better, she can explain why the redactions on the underlying materials like 302s are so obviously politicized.

But given that she’s not even willing to deny that Barr misrepresented the initial report, I doubt she’ll issue any statement that offers useful commentary on this process.

DOJ Is Abusing FOIA Exemptions to Hide Later, More Damning Testimony of Trump Aides

The government has now “released” around 200 302s (FBI interview reports) in response to BuzzFeed/CNN’s FOIA. The vast majority of those, however, are heavily and at times entirely redacted. DOJ is using an unprecedentedly broad interpretation of the already badly abused b5 (deliberative) FOIA exemption to keep much of this hidden. This includes treating communications with the following people as “presidential communications:”

a. Donald Trump, President

b. Michael Pence, Vice President

c. John Kelly, Chief of Staff

d. Reince Priebus, Chief of Staff

e. Donald McGahn, Counsel to the President

f. Michael Flynn, National Security Advisor

g. Emmett Flood, Special Counsel to the President

h. Sean Spicer, Press Secretary

i. Sarah Huckabee Sanders, Deputy Press Secretary; Press Secretary

j. Robert Porter, Staff Secretary

k. Stephen Bannon, Chief Strategist and Senior Adviser to the President

l. Richard Dearborn, Deputy Chief of Staff

m. John Eisenberg, Deputy Counsel to the President and Legal Adviser to the National Security Council

n. K.T. McFarland, Deputy National Security Advisor

o. Uttam Dhillon, Deputy Counsel to the President

p. Annie Donaldson, Chief of Staff to the Counsel to the President

q. Jared Kushner, Senior Adviser to the President

r. Ivanka Trump, Senior Adviser to the President

s. Hope Hicks, Director of Strategic Communications; Director of Communications

t. Stephen Miller, Senior Adviser to the President

DOJ has offered a similar — albeit smaller — list (pages 16-17) of people covered by “Presidential” privileges during the Transition (yes, both Ivanka and Jared are on that list, too).

This is outright abuse, and given yesterday’s opinion stating he will review the existing redactions in the Mueller Report, I expect Judge Reggie Walton to deem it as such once the litigation rolls around to that point.

All the more so given that it can be demonstrably shown that DOJ is selectively releasing 302s such that Trump aides’ false statements are public, but their later more accurate (and damning) statements are hidden. There are at least three examples (Steve Bannon, KT McFarland, and Mike Flynn) where DOJ is still withholding later, more accurate statements while releasing earlier deceitful ones, and two more cases (JD Gordon and Sam Clovis) where DOJ may be hiding discussions of Trump pro-Russian policy stances. And in one case (Clovis), DOJ appears to have used a b3 (protected by statute) exemption that doesn’t appear to be justifiable.

Steve Bannon

Steve Bannon was interviewed on at least five occasions:

  • February 12, 2018: large swaths unredacted
  • February 14, 2018: Heavily redacted under both b5 and (pertaining to WikiLeaks, Stone, and Cambridge Analytica, ongoing investigation), but with key passages revealed
  • October 26, 2018: Not yet released
  • January 18, 2019: Proffer released, but 302 not yet released
  • Unknown date (in advance of Stone trial): Not yet released

There are significantly redacted discussions (protected under ongoing investigation redactions) in Bannon’s February 14 302 that conflict with his later public admissions. And Bannon’s testimony in the Roger Stone trial shows that his 302s — including the trial prep one — conflict with his grand jury testimony. What has thus far been made public includes denials of coordination on WikiLeaks that both his October 2018 and January 2019 302s must contradict. Yet DOJ has not released the later, more damning 302s yet.

KT McFarland

As has been publicly reported, KT McFarland at first lied to the FBI but — in the wake of Mike Flynn’s plea deal — unforgot many of the key events surrounding discussions about sanctions during the Transition. While DOJ has not yet released her first 302, the others are, in general, lightly redacted. They show how she appears to have told a cover story about discussions about sanctions during the Transition. The 302 in which she cleaned up her testimony, which would show what really happened during the Transition, is largely redacted.

  • August 29, 2017: Not yet released
  • September 14, 2017: Lightly redacted (though hiding details of Tom Bossert email and her claims about the Flynn sanctions discussion)
  • October 17, 2017: Lightly redacted, though with some Mar-a-Lago and sanctions cover story details redacted
  • October 19, 2017: Significantly redacted
  • December 5, 2017: Lightly redacted; this captures McFarland’s panic in the days after Flynn’s plea
  • December 22, 2017: Very heavily redacted

Mike Flynn

Mike Flynn’s initial 302, from January 24, 2017, has been public for some time. Flynn has twice admitted, under oath, that he lied in that 302.

None of his other Russia-related 302s, including those where he corrected his story in November 2017, have been made public (though DOJ may be withholding these because he has not yet been sentenced). Among the 302s DOJ is withholding involves at least one describing how the Trump campaign discussed reaching out to WikiLeaks after the John Podesta emails dropped.

JD Gordon

JD Gordon’s testimony was critical to Mueller’s finding that Trump and Paul Manafort had no personal involvement in preventing convention delegate Diane Denman from making the RNC platform more hawkish on Ukraine. Details of this investigation into Gordon’s role appear entirely unredacted in the DOJ IG Report on Carter Page as part of the case that FBI should have removed any claim that Page was involved in the platform.

Gordon’s first interview is largely unredacted. It soft-pedals Trump’s pro-Russian stance on the campaign.

GORDON flagged DENMAN’s amendment because TRUMP had mentioned not wanting to start World War III over Ukraine. TRUMP had mentioned this both in public and in private, including at the campaign meeting on March 31, 2016. This was not GORDON’s stance but TRUMP’s stance on Ukraine.

[snip]

DENMAN [redacted] and asked GORDON what he had against the free people. GORDON explained TRUMP’s statements regarding World War III to her. She asked why they were there and who GORDON was on the phone with. GORDON told her he was on the phone with his colleagues but didn’t provide names.

But Gordon’s final 302 is largely redacted, though it leaves unredacted the World War III excuse. Some of the redactions appear to hide Gordon’s testimony about the things Trump said in campaign appearances that Gordon used to explain his intervention in the Convention.

There is also discussion in his last interview about whether he consulted with Jeff Sessions on the platform issue during phone calls placed at the time (which he denied he had).

The Mueller Report also describes how Sergey Kislyak invited Gordon to his residence in DC shortly after the convention; that reference is based entirely on emails exchanged between the two; it would be worthwhile to know what he said if he was asked about the invite in his FBI interviews, but if so, it is redacted.

Sam Clovis

Sam Clovis appears to have had three interviews, though it seems Mueller’s team may never have trusted his testimony. The interviews are cited just three times in the Mueller Report, and he makes denials in his interviews that conflict with communication-based evidence laid out in the Mueller Report and what he is reported to have told Stefan Halper in the DOJ IG Report on Carter Page (PDF 367-370). Clovis’ testimony is particularly important because he claims there was a shift in policy towards Russia during the campaign, but his released testimony is inconsistent on that point.

Clovis was first interviewed on October 3, 2017 at his office at USDA. The 302 makes clear that “about a quarter of the way through the interview, CLOVIS was warned that lying to the agents could constitute a federal offense.” In that interview, Clovis makes extremely strong denials about Russia.

CLOVIS started off the interview by explaining that he hates Russia and that should be clear throughout his interview.

[snip]

Russia was never a topic between CLOVIS and TRUMP. They would occasionally discuss it in debate prep. CLOVIS did most of the debate prep during the primaries. They talked about a Ukrainian policy and discussed having a bipartisan approach to this because of the divided based on Ukraine.

[snip]

A lot of people approached the campaign with ideas about foreign policy topics. Some of them wanted to approach and engage Russia but CLOVIS never trusted RUSSIA.

[snip]

CLOVIS thought interacting with Russia was a bad idea on any level because of comments TRUMP made.

[snip]

CLOVIS thinks the Special Counsel investigation is more political than practical. From CLOVIS’ perspective he didn’t see anything that warranted an investigation. CLOVIS said the campaign didn’t have anything to do with Russians. No one advised anyone to meet with Russians. CLOVIS wanted nothing to do with Russia and would never approve a meeting with the Russians. CLOVIS explained that Russians are different with Russia. You can’t just sit down at the table with them.

[snip]

CLOVIS does not recall Russia being brought up in the March 31, 2016 meeting.

[snip]

PAGE had an interesting background, including time in the Navy, experience in energy policy and Russian business. They were rushed into putting a foreign policy team together. CLOVIS thought PAGE was pretty harmless but also didn’t provide much value. CLOVIS said he never talked to PAGE about meetings with Russia and doesn’t remember PAGE ever bringing up Russia.

[snip]

CLOVIS didn’t think the change [in platform] was in line with TRUMP’s stance. CLOVIS thought their plan was to support Ukraine in their independence by engaging their NATO allies. CLOVIS is concerned PUTIN is trying to establish a Soviet empire.

That very same day, the FBI interviewed Clovis a second time, also in his USDA office. In the second interview, Clovis made comments that probably conflict with what Clovis told Stefan Halper in August 2016.

CARTER PAGE and GEORGE PAPADOPOULOS were not involved with the campaign team. They were not players in the campaign.

More importantly, in the second interview — on the same day!! — Clovis admitted that Trump did want better ties with Russia.

TRUMP wanted improved relations with Russia. The “bromance” TRUMP had with PUTIN bothered CLOVIS but the press and the public fed on it. CLOVIS felt like he had to cleanup with a shovel because TRUMP played up his bromance with PUTIN for the public.

Clovis also denied discussions of a trip to Russia that the FBI had proof he was personally involved in.

CLOVIS was asked about emails regarding an “unofficial trip” to Russia which were discussed in a Washington Post article. CLOVIS indicated this was info he was not privy to. CLOVIS said he doesn’t know who would have authorized such meetings but he never gave PAPADOPOULOS any indication to setup meetings.

CLOVIS denied learning about any dirt on Hillary, something that Papadopoulos provided conflicting testimony on.

CLOVIS was asked if he ever heard anyone discuss Russians having dirt on HILLARY CLINTON. CLOVIS said he wasn’t aware of that and if someone had that info they probably wouldn’t bring it to CLOVIS. CLOVIS pointed out that he was never asked to do anything untoward.

And in this second interview, Clovis softened on whether anyone had been compromised by Russia.

CLOVIS further explained how Russia can be very sneaky and will try to distract you on one side while sneaking by you on the other side. They will use any mechanism they can. CLOVIS fought them for years. CLOVIS didn’t feel like there was anything going on with the campaign though.

The interview ends with what may to be a discussion about a subpoena.

CLOVIS asked the agents [redacted] since he had cooperated. He was concerned about his travel plans and indicated he planned on leaving [redacted] and returning to D.C. [redacted] Agents agreed to [redacted] but said they would contact him later with information [redacted].

Note, the most substantive redactions in these two 302s have b3 redactions, which covers information “exempted from disclosure by statute.” While some of the last paragraph might be a discussion about serving a grand jury subpoena, none of the rest of it should be. And in other 302s, discussions of the same events (such as the March 31 meeting) are not redacted under b3 exemptions. It is hard to see how that redaction is permissible.

Clovis’ October 26 interview is entirely redacted under b5 exemptions.

Mueller Told Trump He Was Being Investigated for Hacking, Wire Fraud, and Mail Fraud

Having followed Carol Leonnig’s reporting since the Scooter Libby case, I’m thrilled she finally wrote — with Philip Rucker — a book, A Very Stable Genius. She is one of the reporters who mixes an ability to read public records with very good sourcing. And while attentive readers of this site will be familiar with much of the reporting in Stable Genius, there are tidbits that make the book well worth your time.

One example is a description of the discussions between Trump’s lawyers and Mueller’s team from summer 2018. In the middle of a description of talks between Jane Raskin and James Quarles, the book reveals that Quarles told Trump’s team that the President was being investigated for hacking, wire fraud, and mail fraud.

In early September 2018, Trump’s lawyers finally reached a conclusion with Mueller over his request for a presidential interview. Trump’s lawyers had argued to prosecutors all summer why they didn’t believe it was necessary to provide the president’s responses to their questions and tried to appear open to a possible compromise for him to provide limited answers. The discussion took the form of a volley of emails and memos between Trump’s lawyer Jane Raskin and her old law firm friend James Quarles.

Some of the correspondence was rudimentary. The Trump lawyers wanted to know what criminal statutes Mueller’s team was investigating as possible crimes and why this would require answers from the president. Raskin’s shorthand version was something to the effect of “You have told us our client is the subject of the investigation and you won’t even tell us what you are looking at.” It took roughly three weeks to get an answer to that question. Quarles responded that the statutes governed the criminal acts of hacking, under the Computer Fraud and Abuse Act, as well as the very general crimes of wire fraud and mail fraud. Trump’s lawyers shrugged. That’s it? That’s useless, they said to each other. They were certain the president hadn’t engaged in any of those crimes.

Mueller’s team would be silent for long stretches, especially later in the summer. At one point, Quarles told the Trump lawyers that it was important to ask about the president’s view of events surrounding his pursuit of the Trump Tower Moscow project, as well as his role in describing Donald Trump Jr.’s 2016 meeting with a Russian lawyer who was expected to provide damaging information on Clinton. Raskin and her colleagues had a shared reaction: “What conceivably is criminal about that? Why do you want to ask about that?” The president’s team also argued that prosecutors were not entitled to question Trump on decisions he made as president because anything prosecutors needed to know from Trump’s time in office could be obtained from the thousands of documents and dozens of witnesses the White House had helped provide. [my emphasis]

That’s a fairly surprising detail!

There’s a heavily redacted section of the Mueller Report that explains why they didn’t charge someone under CFAA (PDF 187) that might pertain to Don Jr’s use of a password to access a WikiLeaks related website before it was public, or might pertain to some skiddies who tried to access Guccifer 2.0’s social media accounts who were investigated in Philadelphia.

More interesting is the 3-page redaction, starting at PDF 186 in the FOIA version, that footnote 1278 makes clear pertains to the publishing of post-hacking emails. That may well related exclusively to WikiLeaks, but it was redacted under exemptions tied to Roger Stone’s case.

And filings in the Roger Stone case — most explicitly, this opinion from Amy Berman Jackson — make it clear that Mueller’s team had shown probable cause to obtain warrants against Stone including CFAA and wire fraud charges as late as August 28, 2018. (The numbering Stone’s lawyers used does not match the timeline, so search warrant 18 is not the last; see footnote 2 of the opinion for the dates of the warrants, which I’ve tracked in the Mueller warrant docket.)

Fourteen of the eighteen warrant applications sought authorization to search for evidence of, among other crimes, the intentional unauthorized access of computers in violation of 18 U.S.C. § 1030. See SW1-SW13, SW18.

[snip]

The fourteen affidavits also sought to search for evidence of violations of other crimes, including 18 U.S.C. § 2 (aiding and abetting), 18 U.S.C. § 3 (accessory after the fact), 18 U.S.C. § 4 (misprison of  a felony), 18 U.S.C. § 371 (conspiracy), 18 U.S.C. § 1001 (false statements), 18 U.S.C. § 1505 (obstruction of justice); 18 U.S.C. § 1512 (tampering with a witness), 18 U.S.C. § 1513 (retaliating against a witness), 18 U.S.C. § 1343 (wire fraud), 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud), and 52 U.S.C. § 30121 (foreign contributions ban).

This accords with the timing laid out in Stable Genius: during the period when Quarles and Raskin discussed possible charges against Trump, Stone was still under investigation for hacking or abetting hacks after the fact. And we know from public records that Stone’s efforts to optimize the WikiLeaks releases occurred in close coordination with Trump himself.

This detail may take on renewed import given Reggie Walton’s decision to review the redaction decisions on the Mueller Report himself. DOJ institutionally redacted some details — and sustained those redactions even when Stone asked for an unredacted copy of the Mueller Report — to protect Trump’s privacy.

I still maintain that Walton will release little more than what has already been released, if at all (pending the lifting of the Stone gag, at which point Walton will release everything currently redacted under it).

But if there’s a passage that explains why Mueller considered charging Stone — and possibly even Trump! — with CFAA charges for so long, which would, in turn, explain why Trump worked so hard to obstruct the investigation, Walton might find a way to release it.

Questioning Bill Barr’s “No Collusion” Propaganda, Reggie Walton Orders an In Camera Review of Mueller Report

Before the Trump Administration started really politicizing justice, Reggie Walton had already proven himself willing to stand up to the Executive Branch. During the George W Bush Administration, he presided over the Scooter Libby trial, never shirking from attacks from the defendant. And in the first year of the Obama Administration, as presiding FISA Judge, he shut down parts of the phone dragnet and the entire Internet dragnet because they were so far out of compliance with court orders.

And Walton had already showed his impatience with Trump’s stunts, most notably when presiding over a FOIA for materials related to the firing of Andrew McCabe. He finally forced DOJ to give the former Deputy FBI Director a prosecution declination so he could proceed with the FOIA lawsuit.

So it’s unsurprising he’s unpersuaded by DOJ’s request to dismiss the EPIC/BuzzFeed lawsuits over their FOIAs to liberate the Mueller Report, and has ordered DOJ to provide him a copy of the Report before the end of the month to do an in camera review of redactions in it.

The Court has grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report and its impacts on the Department’s subsequent justifications that its redactions of the Mueller Report are authorized by the FOIA. For the reasons set forth below, the Court shares the plaintiffs’ concern that the Department “dubious[ly] handl[ed] [ ] the public release of the Mueller Report.” EPIC’s Mem. at 40; see also id. (“Attorney General[] [Barr’s] attempts to spin the findings and conclusions of the [Mueller] Report have been challenged publicly by the author of the [Mueller] Report. [ ] Attorney[] General[] [Barr’s] characterization of the [Mueller] [R]eport has also been contradicted directly by the content of the [Mueller] Report.”); Leopold Pls.’ Mem. at 9 (“[T]here have been serious and specific accusations by other government officials about improprieties in the [Department’s] handling and characterization of the [Mueller] Report[.]”). Accordingly, the Court concludes that it must conduct an in camera review of the unredacted version of the Mueller Report to assess de novo the applicability of the particular exemptions claimed by the Department for withholding information in the Mueller Report pursuant to the FOIA.

To justify this review, Walton cites Barr’s silence about the multiple links between Trump and Russians and about the reason why Mueller didn’t make a decision about charging Trump with obstruction.

Special Counsel Mueller himself took exception to Attorney General Barr’s March 24, 2019 letter, stating that Attorney General Barr “did not fully capture the context, nature, and substance of th[e] [Special Counsel’s] Office’s work and conclusions,” EPIC’s Mot., Ex. 4 (March 27, 2019 Letter) at 1, and a review of the redacted version of the Mueller Report by the Court results in the Court’s concurrence with Special Counsel Mueller’s assessment that Attorney General Barr distorted the findings in the Mueller Report. Specifically, Attorney General Barr’s summary failed to indicate that Special Counsel Mueller “identified multiple contacts—‘links,’ in the words of the Appointment Order—between Trump [c]ampaign officials and individuals with ties to the Russian government,” Def.’s Mot., Ex. D (Mueller Report – Volume I) at 66, and that Special Counsel Mueller only concluded that the investigation did not establish that “these contacts involved or resulted in coordination or a conspiracy with the Trump [c]ampaign and Russia, including with respect to Russia providing assistance to the [Trump] [c]ampaign in exchange for any sort of favorable treatment in the future,” because coordination—the term that appears in the Appointment Order—“does not have a settled definition in federal criminal law,” id., Ex. D (Mueller Report – Volume I) at 2, 66. Attorney General Barr also failed to disclose to the American public that, with respect to Special Counsel Mueller’s investigation into whether President Trump obstructed justice, Special Counsel Mueller “determined not to make a traditional prosecutorial judgment[,] . . . recogniz[ing] that a federal criminal accusation against a sitting [p]resident would place burdens on the [p]resident’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct,” but nevertheless declared that

if [he] had confidence after a thorough investigation of the facts that [ ] President [Trump] clearly did not commit obstruction of justice, [he] would so state. Based on the facts and the applicable legal standards, however, [he] [is] unable to reach that judgment. The evidence [he] obtained about [ ] President[] [Trump’s] actions and intent presents difficult issues that prevent [him] from conclusively determining that no criminal conduct occurred. Accordingly, while th[e] [Mueller] [R]eport does not conclude that [ ] President [Trump] committed a crime, it also does not exonerate him.

Id., Ex. D (Mueller Report – Volume II) at 1–2.

Walton further cites claims that Barr made in his April 18 press conference and letter — where he specifically claimed Mueller had found no evidence of collusion — to judge that Barr lacked candor in his statements about the report.

Similar statements were made in his April 18, 2019 letter. See Def.’s Mot., Ex. 7 (April 18, 2019 Letter) at 1–3 (stating that Special Counsel Mueller’s “bottom-line conclusion on the question of so-called ‘collusion’ [was] [that] [t]he investigation did not establish that members of the Trump [c]ampaign conspired or coordinated with the Russian government in its election interference activities” and that “the evidence set forth in the [ ] [Mueller] [R]eport was [not] sufficient to establish that [ ] President [Trump] committed an obstruction-of-justice offense”).

As noted earlier, the Court has reviewed the redacted version of the Mueller Report, Attorney General Barr’s representations made during his April 18, 2019 press conference, and Attorney General Barr’s April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.

[snip]

Here, although it is with great consternation, true to the oath that the undersigned took upon becoming a federal judge, and the need for the American public to have faith in the judicial process, considering the record in this case, the Court must conclude that the actions of Attorney General Barr and his representations about the Mueller Report preclude the Court’s acceptance of the validity of the Department’s redactions without its independent verification.

Walton doesn’t say it explicitly, but he seems to believe what the unredacted portions of the report show amount to “collusion,” the kind of collusion Trump would want to and did (and still is) covering up.

Be warned, however, that this review is not going to lead to big revelations in the short term.

There are several reasons for that. Many of the most substantive redactions pertain to the Internet Research Agency and Roger Stone cases. Gags remain on both. While Walton is not an Article II pushover, he does take national security claims very seriously, and so should be expected to defer to DOJ’s judgments about those redactions.

Where this ruling may matter, though, is in four areas:

  • DOJ hid the circumstances of how both Trump and Don Jr managed to avoid testifying under a grand jury redaction. Walton may judge that these discussions were not truly grand jury materials.
  • DOJ is currently hiding details of people — like KT McFarland — who lied, but then cleaned up their story (Sam Clovis is another person this may be true of). There’s no reason someone as senior as McFarland should have her lies protected. All the more so, because DOJ is withholding some of the 302s that show her lies. So Walton may release some of this information.
  • Because Walton will have already read the Stone material — that part that most implicates Trump — by the time Judge Amy Berman Jackson releases the gag in that case, he will have a view on what would still need to be redacted. That may mean more of it will be released quickly than otherwise might happen.
  • In very short order, the two sides in this case will start arguing over DOJ’s withholding of 302s under very aggressive b5 claims. These claims, unlike most of the redactions in the Mueller Report, are substantively bogus and in many ways serve to cover up the details of Trump’s activities. While this won’t happen in the near term, I expect this ruling will serve as the basis for a similar in camera review on 302s down the road.

Update: Here’s the FOIA version of the Mueller Report; here is Volume II. The b1 and b3 redactions won’t be touched in this review. Where Walton might order releases are the b6, b7C redactions. I expect Walton may order these redactions removed, which show that Don Jr and someone else was investigated.

Update: I did a post last August about what Walton might do with these redactions. It holds up, IMO.

The Stakes and Misinformation about the Andrew McCabe Declination

Amid the other crazy events of the week, DOJ informed Andrew McCabe he would not be prosecuted as a result of the criminal referral arising from DOJ IG’s finding that he lacked candor when asked about an October 30, 2016 Devlin Barrett story.

While it’s possible the Tuesday Afternoon Massacre and Jessie Liu’s removal had some role in the timing of this notice, one thing is clear: McCabe got notice primarily because Judge Reggie Walton had imposed a deadline in a CREW FOIA to release some transcripts about the stalled decision-making process. Probably, DOJ made the decision last fall after a grand jury refused to charge McCabe, but stalled on giving McCabe notice because DOJ knew it would piss off Trump. But since the court transcripts would reveal some of that, the FOIA deadline finally forced DOJ’s hand.

In the aftermath of the McCabe news, a bunch of frothy Republicans, including Chuck Grassley, have analogized the investigation into McCabe with the investigations into Roger Stone (for conducting a two year cover-up, including making threats against a witness and a judge) and Mike Flynn (for lying multiple times to the FBI, continuing to fudge the truth in the ongoing investigation, and lying to hide that he was on Turkey’s payroll at a time when he was Trump’s top national security advisor). Even taken on their face, that’s a ridiculous comparison, one that dismisses the import of threatening judges and secretly serving as agents for frenemy governments while receiving intelligence briefings. The accusations against the men are different, with a lack of candor allegation against McCabe versus lying against the others, and egregious mitigating factors implicating national security with the others. Whereas grand jury reportedly refused to even charge McCabe, a jury found Stone guilty of every count with which he was charged.

More importantly, the comparison has treated the allegation against McCabe with a seriousness that the underlying record — as laid out in McCabe’s lawsuit against DOJ — does not merit.

And McCabe’s lawsuit may provide a partial explanation for why DOJ stalled so long before declining to prosecute the case. That’s because a key part of DOJ’s defense against McCabe’s lawsuit is that they could or even had to move so quickly to fire McCabe because there was reasonable reason to believe that McCabe had committed a crime for which he could be imprisoned.

Mr. McCabe was given seven days to provide oral and written responses to the notice of proposed removal to ADAG Schools. That response period was a departure from the 30-day response period more frequently provided for a proposed removal. But FBI policy governing the removal of Senior Executive Service (SES) employees provides that “if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment can be imposed, the advance notice may be curtailed to as little as seven days.” FBI SES Policy at 16 (attached as Ex. 2). Given the Inspector General’s findings that Mr. McCabe lacked candor under oath, findings which Assistant Director Will seconded after her independent assessment, there was reasonable cause to believe that Mr. McCabe had committed a crime for which a sentence could be imposed—and, therefore, a sound basis for affording Mr. McCabe seven days to respond.

DOJ has excused their rush to fire McCabe based on having reasonable grounds to believe he could be prosecuted for lies, but the rush to fire McCabe resulted in DOJ ignoring clear evidence that the IG Report was fundamentally flawed in a way that easily explains why a grand jury would refuse to indict. So the lawsuit, if McCabe gets discovery, is likely to show that he was rushed out the door to prevent him from building the case that he was being rushed out the door based on a case riddled with problems.

When the IG Report came out, I found it pretty compelling and therefore the criminal referral understandable (though I did not believe criminal charges would be upheld), even while noting the big push to make that happen before McCabe retired delegitimized it. But now it’s clear that the report didn’t get the normal level of pre- and post-publication review, McCabe’s OPR process was rushed to beat his retirement deadline, and had either of those processes been conducted in the normal fashion, they would have likely caught significant problems with the report.

Indeed, McCabe presented compelling evidence — even in a very rushed written response submitted to OPR hours before Jeff Sessions fired him — that he had at least colorable explanations to rebut the IG Report allegations.

As laid out, the IG Report accused McCabe of lacking candor about two kinds of things: first, whether he had told Comey he was a source for the WSJ story, and what role he and Lisa Page had in the story. Both the middle meetings — May 9, 2017, hours before Comey’s firing and his ascension to Acting Director, and July 28, 2017, in the context of a meeting about the discovery of the Page-Strzok texts — were on two of the most momentous days of McCabe’s career. The other two pertain to whether or not McCabe told Comey about his involvement in the WSJ story, which the IG Report portrayed as a difference of opinion about a casual meeting the two had, about which the IG sided with Comey’s version.

Thus, to a significant degree, the question of McCabe’s candor pivoted on whether he had really told Comey he was involved in the WSJ story.

And, as McCabe alerted OPR before he got fired, the IG Report included no mention of one of the most central players in the October 2016 WSJ story, FBI’s Assistant Director of Public Affairs Michael Kortan, with whom McCabe worked closely on the WSJ story. In other words, the IG Report suffers from the kind of egregious failure to include exculpatory information that it just took FBI to task about in the Carter Page IG Report (which also happens to be true of the Carter Page IG Report generally and its treatment of Bruce Ohr specifically). So when the IG Report sides with Comey’s version of the story because,

no other senior FBI official corroborated McCabe’s testimony that, among FBI executive leadership, “people knew generally” he had authorized the disclosure,

The Report can only make such a claim because it entirely left out the testimony of one of the most central players, Kortan. And as McCabe has made clear, in the OPR adjudication, his team did not get the exculpatory information involving Kortan until two days before the final decision.

Reports of why the grand jury refused to indict have pointed to Kortan’s testimony, and it’s clear why: because his testimony totally undermines the conclusions of the IG Report and therefore any basis to indict him.

Most importantly, McCabe submitted an email showing that he informed Comey (and some of the other senior FBI people whom the IG Report claimed didn’t know he was involved) that he was involved in the WSJ story.

With the declination of McCabe, DOJ has admitted that a key reason they claim to have relied on (a claim McCabe disputes) on rushing McCabe’s firing is false: he’s not likely to face prison time, because a grand jury won’t even indict him. And that may increase the chances that McCabe will get to prove precisely why he was rushed out the door with Trump screaming about him all the way.

Rosemary Collyer Responds to the DOJ IG Report in Fairly Blasé Fashion

Judge Rosemary Collyer just released a four page order responding to the DOJ IG Report showing problems with Carter Page’s FISA applications.

Before I explain the letter further, let me just explain for those who haven’t followed my FISA work. Collyer is the presiding judge of the court. Traditionally, it falls to the presiding judge to scold DOJ when things go haywire, and so it was to be expected that Collyer would write this. Collyer is nowhere near the most aggressive presiding judge in the court’s history (that honor might go to Reggie Walton, though Royce Lamberth was presiding when the Woods Procedures that weren’t followed here were introduced after he bitched about systematic problems). As an example, she wrote what I consider to be among the worst programmatic FISA opinions not written by a Dick Cheney flunkie, and she was reluctant to implement the new amicus mandated by Congress in the USA Freedom Act.

Predictably, while this is a sharp opinion, it’s not that onerous. She starts by spending a page explaining why candor is so important for the FISC, language that is probably for the benefit of those unfamiliar with the court. She cites three prior opinions complaining about lack of candor, just one of which I consider among the greatest hits.

She then reviews the problems laid out in the IG Report she considers most important, citing:

  • The failure to explain Carter Page’s past relationship with the CIA
  • Exaggerations about the degree to which Christopher Steele’s reporting had been corroborated
  • Contradictions of Steele’s claims made by his sub-source
  • Page’s denials he had worked closely with Paul Manafort
  • Page’s denials he knew the two Russians described in the Steele dossier
  • Details suggesting claims attributed to Sergei Millian in the dossier were unreliable

In addition, Collyer dedicates a paragraph to describing Kevin Clinesmith’s alteration of an email to hide Page’s prior CIA relationship, alluding to a prior order in which she seems to have ordered a review of everything he had touched.

In addition, while the fourth electronic surveillance application for Mr. Page was being prepared, an attorney in the FBI’s Office of General Counsel (OGC) engaged in conduct that apparently was intended to mislead the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency. See id. at 252-56. The information about the OGC attorney’s conduct in the OIG report is consistent with classified submissions made to the FISC by the government on October 25, 2019, and November 27, 2019. Because the conduct ofthe OGC attorney gave rise to serious concerns about the accuracy and completeness of the information provided to the FISC in any matter in which the OGC attorney was involved, the Court ordered the government on December 5, 2019, to, among other things, provide certain information addressing those concerns.

In addition to ordering the declassification of that December 5 order, Collyer also ordered the FBI to explain, by January 10, what they’re going to do to fix the more general problem.

THEREFORE, the Court ORDERS that the government shall, no later than January 10, 2020, inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application. In the event that the FBI at the time of that submission is not yet able to perform any of the planned steps described in the submission, it shall also include (a) a proposed timetable for implementing such measures and (b) an explanation of why, in the government’s view, the information in FBI applications submitted in the interim should be regarded as reliable.

So she’s not calling for the FISC itself to do anything different. FBI will likely provide a plan implementing the FISC-based recommendations made by Michael Horowitz, as well as additional updates to the Woods Procedures.

This is, in the grand scheme of things, an order deferring to the government to fix the problem, not an order designed to impose new requirements (of the kind Lamberth himself ordered years ago) from the court until FBI proves it has cleaned up its act.

Which leaves it up to Congress to impose any more substantive fixes.

The Conspiracy Theories Flynn Wants to Resuscitate and the McCabe Investigation

Lost in the frenzy regarding the conspiracy theories Rudy Giuliani is planting and the Attorney General is personally chasing is the government’s response to Mike Flynn’s purported “Brady” demand — which accuses Flynn lawyer Sidney Powell of planting conspiracy theories. I tweeted about the package in this thread. While there may be a dispute about a few items, I correctly predicted that the main legal question is whether Emmet Sullivan will interpret his standing Brady order — requiring that prosecutors turn over Brady information even for defendants pleading guilty — will extend to Giglio information impeaching witnesses. In response to a request for any Brady or Giglio information discovered by DOJ’s Inspector General in the last two years, DOJ states flat out Giglio is not covered by Sullivan’s order.

The government has already provided the defendant with all Brady material; it is not obligated to provide Giglio material pursuant to the Court’s Standing Order, United States v. Flynn, 17-cr-232 (D.D.C. Feb. 16, 2018) (Doc. 20).

And much of the rest of what Powell is asking for, pertaining to Peter Strzok at least, would be Giglio.

That said, there is a part of the government’s substantiation that Sidney Powell is sowing conspiracy theories that deserves more attention. The government lays out how Flynn lawyer Rob Kelner asked the government three times about a conspiracy theory that Andrew McCabe, before Powell asked a fourth time.

The defendant’s complaints and accusations are even more incredible considering the extensive efforts the government has made to respond to numerous defense counsel requests, including to some of the very requests repeated in the defendant’s motion. For instance, the defendant alleges that former FBI Deputy Director Andrew McCabe said, “‘First we f**k Flynn, then we f**k Trump,’ or words to that effect;” and that Deputy Director McCabe pressured the agents to change the January 24 interview report. See Mot. to Compel at 4, 6 (Request ##2, 22). Defense counsel first raised these allegations to the government on January 29, 2018, sourcing it to an email from a news reporter. Not only did the government inform defense counsel that it had no information indicating that the allegations were true, it conducted additional due diligence about this serious allegation. On February 2, 2018, the government disclosed to the defendant and his counsel that its due diligence confirmed that the allegations were false, and referenced its interview of the second interviewing agent, who completely denied the allegations. Furthermore, on March 13, 2018, the government provided the defendant with a sworn statement from DAD Strzok, who also denied the allegations.

Nevertheless, on July 17, 2018, the defense revived the same allegations. This time, the defense claimed that the source was a staff member of the House Permanent Select Committee on Intelligence (“HPSCI”). The HPSCI staff member allegedly told the defendant that the second interviewing agent had told the staff member that after a debrief from the interviewing agents, Deputy Director McCabe said, “F**k Flynn.” Once again, the government reviewed information and conducted interviews, and once again confirmed that the allegations were completely false. And after defendant and his counsel raised the accusation for a third time, on October 15, 2018, the government responded by producing interview reports that directly contradicted the false allegations. Despite possessing all of this information, defense counsel has again resurrected the false allegations, now for a fourth time. See Mot. to Compel at 4, 6 (Request ##2, 22)

The persistence of this conspiracy theory — and HPSCI’s role in perpetuating it — is significant for another reason.

The IG Report on Andrew McCabe discusses how DOJ IG came to investigation McCabe this way.

In May 2017, the FBI Inspection Division (INSD) expanded a pre-existing investigation of media leaks to include determining the source of the information in the October 30 WSJ article regarding the August 12 McCabe-PADAG call. INSD added the October 30 article to their pre-existing matter because it appeared to involve an instance of someone at the FBI leaking the Deputy Director’s private conversations to the media.

The backstory to this is that Jim Comey asked the Inspection Division to investigate leaks (remember, something Trump had demanded). But the “pre-existing” investigation referenced reportedly pertained to the same conspiracy theory: that someone had leaked to the press that McCabe had said “First we fuck Flynn, then we fuck Trump” in front of some FBI Agents. (I believe the Circa story cited here eventually came to be part of the investigation, but TruePundit claims credit for the conspiracy, pointing to a version that temporally matches the timeline.)

Note the asymmetry to this story.

No DOJ entity, whether FBI’s Inspection Division, DOJ IG, or Flynn’s prosecutors have presented the public proof that this serial conspiracy theory has been debunked — much less chase down the Agents who keeps spreading it and prosecute them. But because the Inspector Division asked McCabe who might be leaking about him (which is what the initial question was), he is being pursued in an investigation that Reggie Walton denounced the other day.

This is how conspiracy theories about what DOJ and FBI did in the last three years are allowed to persist, much less get reentered into court filings that otherwise would get the lawyers doing so sanctioned.