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How Roger the Rat Fucked Himself

After the FBI arrested Roger Stone today, they conducted searches on his homes in Florida and NYC. It will be interesting to see whether and if so how much evidence they found in his homes.

That’s because — in spite of the fact that Stone has been rat-fucking for almost a half century, and in spite of the fact that Stone was willing to risk major prison time as part of a cover-up, Stone utterly fucked himself by keeping incriminating materials around and leaking them out via journalists.

If Ronald Reagan is rolling in his grave today because the Air Traffic Controllers showed that by working collectively they could be more powerful than a President, then Richard Nixon is rolling in his grave today that a guy still branded with his face failed the cover-up so much worse than Nixon himself (Unrelatedly, but hysterically, the Nixon Foundation released a statement today effectively calling Stone a coffee boy).

Consider this passage in his indictment for lying to the House Intelligence Committee:

STONE’s False and Misleading Testimony About His Possession of Documents Pertinent to HPSCI’s Investigation

22. During his HPSCI testimony, STONE was asked, “So you have no emails to anyone concerning the allegations of hacked documents . . . or any discussions you have had with third parties about [the head of Organization 1]? You have no emails, no texts, no documents whatsoever, any kind of that nature?” STONE falsely and misleadingly answered,  “That is correct. Not to my knowledge.”

23. In truth and in fact, STONE had sent and received numerous emails and text messages during the 2016 campaign in which he discussed Organization 1, its head, and its possession of hacked emails. At the time of his false testimony, STONE was still in possession of many of these emails and text messages, including:

a. The email from STONE to Person 1 on or about July 25, 2016 that read in part, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.”;

b. The email from STONE to Person 1 on or about July 31, 2016 that said an associate of Person 1 “should see [the head of Organization 1].”;

c. The email from Person 1 to STONE on or about August 2, 2016 that stated in part, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.”;

d. Dozens of text messages and emails, beginning on or about August 19, 2016 and continuing through the election, between STONE and Person 2 in which they discussed Organization 1 and the head of Organization 1;

e. The email from STONE on or about October 3, 2016 to the supporter involved with the Trump Campaign, which read in part, “Spoke to my friend in London last night. The payload is still coming.”; and

f. The emails on or about October 4, 2016 between STONE and the high-ranking member of the Trump Campaign, including STONE’s statement that Organization 1 would release “a load every week going forward.”

24. By falsely claiming that he had no emails or text messages in his possession that referred to the head of Organization 1, STONE avoided providing a basis for HPSCI to subpoena records in his possession that could have shown that other aspects of his testimony were false and misleading.

To be clear, I’m sure that Mueller has independent basis for his knowledge that, “At the time of his false testimony, STONE was still in possession of many of these emails and text messages,” showing that he talked about what documents Assange had. As I’ve said, I think it highly likely Stone was included among those on whose phones Mueller got a warrant in March of last year. And if he could get a warrant for Stone’s phone, he obviously could get a warrant for Stone’s email (and probably issued preservation orders when he became Special Counsel in May 2017, if FBI hadn’t already done so).

But Mueller would have had proof that Stone had possession — and knowledge of — some of these records even without a warrant. That’s because Stone, in an apparent effort to undermine Mueller’s case, has been slowly leaking them to the press, accelerating last November.

Of those listed here, for example, after Bannon leaked the October 4 email set to the NYT and WaPo, Stone responded with a piece under his own name acknowledging those emails.

I had been told this would come in October for months by my source Randy Credico, whom I identified for the House Intelligence Committee.

[snip]

When Bannon’s minion Matt Boyle asked me if what Assange had was “good” I replied it was, based on Credico’s insistence the material was “devastating,” “bombshell” and would “change the race.” This turned out to be right, although — as I have testified — I never knew the content or source of the Wikileaks disclosures in advance.

As for the August 2016 texts with Randy Credico, some days later, Stone leaked them to the Daily Caller, again, using his own name.

Julian Assange has kryptonite on Hillary,” Randy Credico wrote to Stone on Aug. 27, 2016, according to text messages that Stone provided to The Daily Caller News Foundation.

Mueller didn’t need a warrant to obtain the evidence to convict Roger Stone. He has the Daily Caller for that!!

Which raises the question why — other than sloppiness, hubris, or declining rat-fucking skills — Stone went to the trouble of lying to HPSCI if he didn’t, at the same time, delete all records of his election year rat-fuckery, which might have minimized the charges he is facing today.

Stone chose to keep these records, even (apparently, though I don’t know that those came out other than in Corsi’s own leaked plea deal) the ones with Corsi that show he was lying about Credico. Stone chose to obstruct justice, but not to do so in a way that would destroy the evidence he was trying to hide.

One reason he may have wanted to do that was to keep leverage over Trump and people like Steve Bannon in his immediate circle.

Which may mean today’s raids found far more interesting evidence implicating Trump and others.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

A Roadmap to the Nixon and/or Mueller Roadmap

The other day, I noted that the Roadmap being FOIAed by Ben Wittes and friends and previously FOIAed by Geoffrey Shepard might serve as a guide, of sorts, for the kind of report Robert Mueller might write such that it could easily be shared with the House Judiciary Committee, particularly in case Mueller got fired.

This week, the National Archives released all parts of the road map they’ve been able to map to previously public items; the FOIAs continue for the grand jury materials not previously released. Lawfare did this post on what got released.

I’m going to lay out what got released. Some of this had already been released, but in this post I’m going to lay out how it all relates together, with an eye towards what we know is going on in the Mueller investigation right now. My treatment here is not in the order that NARA has released them; I’ve rearranged them to show how the Special Prosecutor kept a running memo of what evidence there was against Nixon, which led to an attempt to get Nixon’s testimony, which led to a draft indictment, which led to the Road Map packaging up the evidence behind the indictment to send to the House Judiciary Committee.

I’m not going to deal with the negotiations on the grand jury materials; I may return to that in the future. My goal here is to show how investigative materials — including some that were not evidence of a crime but were evidence of Presidential bad faith — got packaged up to send to the House Judiciary Committee. I’ll do a follow-up post with more observations on what this might tell us, if Mueller is following this road map.

Summary of Evidence (Draft 2, Prepared for Archibald Cox in August 1973, earlier June 7, 1973 memo)

Starting in June 1973, before Cox was fired, he started pulling together all the evidence against Nixon.

This draft memo from August 1973 includes examples of Nixon’s evolving story about whether he knew of CREEP and the break-in in advance, about efforts to impede the FBI investigation (including by calling Patrick Gray to weigh in), about offers of clemency, all of which are similar to what I’m sure Mueller has about Trump’s knowledge in real time of the Russian operation.

The memo lays out what circumstantial evidence there is to support he did have foreknowledge, in some cases referencing the evidence directly, in others pointing to where the evidence would be. At one point it states the old adage, “what did the President know and when did he know it,” this way: “it would be important to know whether, and precisely when, the President may have known about the payoffs.” It clearly labels what is supposition or circumstantial and in places describes what would need to be established to substantiate foreknowledge of something.

The evidence cited includes grand jury testimony, Senate testimony, paperwork, and the press (for witnesses’ public claims). As evidence of some things, it describes “discrepancies between his public statements urging a full investigation and claiming such an investigation had been conducted, and the President’s actual failure to cause a thorough investigation to be made or assure that one was being made.” (33)

We joke about Mueller having a file of all Trump’s incriminating tweets, but a memo like this is probably how the Mueller team keeps running track of what solid evidence, circumstantial evidence, and exculpatory evidence against Trump they have.

Summary of Evidence August 24, 1973, adding Plumbers, Dirty Tricks, ITT, and Campaign Contributions

This is a finalized version of the above with a cover memo giving credit to the people who worked on each section.

Communications regarding Nixon’s testimony

There are three subsections here, without an introduction. I’ll deal with them out of order.

C. Communications of the Special Prosecutor’s Office

The more interesting part of these communications, for current purposes, show the Special Prosecutor’s Office negotiating for Nixon’s testimony and considering whether to present interrogatories — what I call an open book test — to him. These are the kinds of negotiations we know to be going on right now between Mueller’s team and Trump, surely using some of the very same arguments.

While by January 29, 1974, the Special Prosecutor had decided against giving Nixon questions to answer under oath, the correspondence does include efforts to get each of the task forces (note, Mueller’s team appears to be organized into task forces as well) to come up with the interrogatories they would pose to the President in January 1974, as in these questions about investigations of people on Nixon’s enemies list.

We just have the interrogatories from two task forces, which amount to around 31 questions. Remember that by March, Mueller’s team already had over 40 questions for Trump, though they had not, as far as we know, yet presented them as formal interrogatories to him. Trump has reportedly finished the interrogatories Mueller gave him, but he’s sitting on them until after Tuesday’s election.

Starting in September 1974, the Special Prosecutor paperwork turns to obtaining Nixon’s testimony, leading through the generation of questions for ultimate his 1975 questioning.

A. Communication from the Grand Jury to Nixon

Then there are communications from the grand jury to Nixon, both in this early 1974 period and in 1975 when they actually did get his testimony. Most remarkably, on January 30, 1974 (the day after the Special Prosecutor had given up on interrogatories), the foreperson, Vladimir Pregelj, wrote Nixon describing why they needed his testimony. Note how he describes that prosecutors would soon make recommendations about “major phases of our investigation.”

B. Nixon’s communications with the Special Prosecutor

Finally, there is Nixon’s side of the communications with the Special Prosecutor’s office, including their explanation in September 1974 of why Nixon could never get a fair trial. This correspondence is less interesting (to me, at least), but Rudy Giuliani has probably used some of it to model his memo of why Trump shouldn’t be investigated.

Draft Indictment of the President, February 1, 1974

As much as anything else, I’m fascinated by the date of the indictment Jaworski’s team drafted: February 1, 1974. This shows that shortly after giving up on the idea of presenting interrogatories to Nixon, two days after the jury foreperson said the Special Prosecutor would soon present recommendations to the grand jury, and at a time when the Special Prosecutor was still fighting the President’s lawyer’s efforts to avoid testifying, Jaworski’s team had a draft indictment.

The indictment charged four crimes — bribery, conspiracy, obstruction of justice, and obstruction of a criminal investigation. While it was originally titled US v. Nixon, an edit suggested it should be In Re June 5, 1972 Grand Jury, the investigation actually obstructed.

On top of introducing Nixon and the FBI, the introduction of the indictment describes the burglary the investigation of which Nixon obstructed. Then, Count One uses five paragraphs to describe generally how the conspiracy worked. Paragraph 11 lays out three actions Nixon took on March 21, 22, and 23, 1973 (basically, ordering payment to Howard Hunt). Then paragraph 12 and a series of numbered paragraphs thereafter lay out the 9 overt acts behind the conspiracy.

  1. March 16: Hunt meets with O’Brien
  2. March 21: Dean meets with Nixon
  3. March 21: Nixon meets with Dean and Haldeman and instructs bribe to Hunt be paid [handwritten marginal note to add conversation with Mitchell]
  4. March 21: LaRue provides messenger cash for Bittman
  5. March 21: Nixon meets with Dean, Haldeman, and Ehrlichman and instructs Dean to write up report on Watergate
  6. March 22: Mitchell tells Dean, Haldeman, and Ehrlichman that Hunt’s money problem has been taken care of
  7. March 22: Nixon meets with Dean, Haldeman, Ehrlichman, and Mitchell and again discuss Dean writing up report on Watergate
  8. March 22: Ehrlichman tells Krogh that Mitchell has taken care of Hunt’s testimony
  9. March 23: Haldeman tells Dean to prepare report on Watergate

The remaining Counts restate the underlying act — bribing Hunt — and tie it to the other crimes.

There are an additional 9 redacted pages that were deemed protected grand jury materials (this stuff might get unsealed depending on the outcome of an appeal before the DC Circuit right now).

The Road Map

The Road Map was filed under seal on March 1, 1974 (that is, just a month after Jaworski’s office gave up on interrogatories from the President and drafted an indictment against him). It includes an introduction, then an elaboration of the overt acts from the draft indictment, with the connecting steps between them, as follows (I’ve kept the overt acts from the indictment in bold):

  1. March 16: Hunt meets with O’Brien (cites 3 grand jury transcript passages)
  2. March 19: O’Brien meets with Dean (cites Dean grand jury transcript and visitor log)
  3. March 19: Dean means with Ehrlichman about Hunt (cites two grand jury excerpts)
  4. March 20: Dean talks to Mitchell about Hunt (cites tape recording and Dean grand jury)
  5. March 21: Dean meets with Nixon, then with Dean and Haldeman and instructs bribe to Hunt be paid [note this combines overt acts 5 and 6 from the indicment] (includes extensive description of the meeting, cites two recordings of meeting)
  6. March 21: Haldeman talks to Mitchell (cites two grand jury excerpts and Haldeman’s phone log)
  7. March 21: Mitchell talks to LaRue (cites LaRue’s grand jury)
  8. March 21: Haldeman meets with Ehrlichman and Dean about how to handle things (cites meeting logs, recording, grand jury)
  9. March 21: Nixon meets with Dean, Haldeman, and Ehrlichman to discuss how to handle things (cites recording)
  10. March 21: LaRue provides messenger cash for Bittman (cites five grand jury witnesses and seven exhibits)
  11. March 22: Mitchell tells Dean, Haldeman, and Ehrlichman that Hunt’s money problem has been taken care of [note indictment overt act 5 — the first meeting about the report — is taken out of this chronology] (cites grand jury testimony of all three)
  12. March 22: Nixon meets with Dean, Haldeman, Ehrlichman, and Mitchell and again discuss Dean writing up report on Watergate which Nixon can later “rely” on (cites tape recording and Haldeman’s notes)
  13. March 22: Ehrlichman tells Krogh that Mitchell has taken care of Hunt’s testimony (cites Krogh grand jury testimony)
  14. Redacted [note Haldeman order to Dean would appear here in chronology]

From there, the road map includes a bunch of stuff not included in the indictment:

15 through 28: Nixon’s attempts at a cover-up

29 through 43: Nixon’s foreknowledge of dirty tricks and the coverup up to March 17, including the missing 18 minutes, and immediate response to Watergate, including offers of pardons

44 through 53: Nixon’s lies about wanting an investigation

 

Photo: Pavan Trikutam via Unsplash

Three Things: The Reanimation of Nixon Among Them

Busy, busy week. Load up on the caffeine or stimulant of choice and let’s get cracking.

~ 3 ~

At 9:00 pm EST Saturday evening I posted:

Any time now I expect someone in the administration will not only say openly that Trump authorized the transition team to discuss dropping the sanctions, but that it isn’t illegal when the president does it.

This morning about 6:00 am EST in Axios:

John Dowd, President Trump’s outside lawyer, outlined to me a new and highly controversial defense/theory in the Russia probe: A president cannot be guilty of obstruction of justice.

The “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case,” Dowd claims. (emphasis mine)

It’s like they dug up Nixon and reanimated him with a chatbot. No wonder the White House is infested with mice and insects.

~ 2 ~

The Tax Scam Bill isn’t yet legislation; we still have at least a couple chances to kill it. It will be up for a vote in the House today, under a Motion to Go to Conference. Call your representatives well before 6:00 p.m. and ask them to vote NO on going to conference. This bill should simply not proceed any further.

Did you know those GOP jackasses in the Senate actually added a tax on retail gift cards? If your employer gives your a grocery store gift card to buy a holiday ham, you could be taxed on it. If you tip your child’s caregiver with a retail gift card they could be taxed on it. What is wrong with these Dickensian jerks?

I’m not the only one who thought of Scrooge when Old Man Orrin Hatch complained about poor children who relied on CHIP health care, saying ““I have a rough time wanting to spend billions and billions and trillions of dollars to help people who won’t help themselves – won’t lift a finger – and expect the federal government to do everything.”

By the way, it was Hatch who added the retail gift card tax. Leave no meal to a poor child untaxed.

Need a little help with that phone call to your rep? See @Celeste_pewter — she’s got you covered.

~ 1 ~

Folks in Nevada need to take a cluestick to Senator Dean Heller after his execrable public townhall this weekend. His security goon squad first threatened a Stage 4 cancer patient, then threw her out along with an elderly woman with a broken arm. At least 10 attendees were ejected.

There’s video.

There are tweets.

There’s no escaping how bad the optics were; Heller wants this Tax Scam Bill for his oligarchic sponsors so badly he’ll step on the sick, injured, and elderly to get it. And then Heller doubled down on his monstrousness when asked if he’d read the Tax Scam Bill, tweeting, “Read it? I helped write it!”

It’s on you, Heller. This is your legacy. You said it, you wrote it.

~ 0 ~

Our celebration of emptywheel’s 10th anniversary continues. Watch for a post by Jim White midday today; Marcy is working on a super-sized post on all things surveillance. Stay tuned!

And if you can pitch in some rodent chow to keep the site’s squirrels on their treadmill, we’d appreciate it greatly.

This is an open thread — your off-topic comments are welcomed in this thread. Let’s kick some ass and take names this Monday morning.

By “Secret Law” Did They Mean “Not Written Down”?

For years, Ron Wyden and Mark Udall have been calling the secret interpretation of Section 215 “secret law.”

I’ve always thought they meant that figuratively. The law got made by the FISA Court in secret, but there’s an opinion there somewhere, laying out the interpretation of the law. It’s just secret.

Ever since the release of the first documents responsive to the EFF/ACLU FOIAs, I’ve begun to wonder. What we’ve seen include:

Neither of those were comprehensive. And the “supplemental opinion” would seem to suggest it supplemented … something.

Yesterday, we got what appears to be a (shoddy) comprehensive opinion.

That opinion cites an earlier opinion from the FISA Court that is not, however, cited in either the 2006 or 2008 opinions. That earlier opinion examines how bulk collection affects the Fourth Amendment.

Here, the government is requesting daily production of certain telephony metadata in bulk belonging to companies without specifying the particular number of an individual. This Court had reason to analyze this distinction in a similar context in [redacted]. In that case, this Court found that “regarding the breadth of the proposed surveillance, it is noteworthy that the application of the Fourth Amendment depends on the government’s intruding into some individual’s reasonable expectation of privacy.” Id. at 62. The Court noted that Fourth Amendment rights are personal and individual, see id. (citing Steagald v. United States, 451 U.S. 204, 219 (1981); Rakas v. Illinois, 439 U.S. 128, 133 (1978) (“‘Fourth Amendment rights are personal rights which … may not be vicariously asserted.,) (quoting Alderman v. United States, 394 U.S. 165, 174 (1969))), and that “[s]o long as no individual has a reasonable expectation of privacy in meta data, the large number of persons whose communications will be subjected to the … surveillance is irrelevant to the issue of whether a Fourth Amendment search or seizure will occur.” Id. at 63. Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.

[snip]

Furthermore, for the reasons stated in [redacted] and discussed above, this Court finds that the volume of records being acquired does not alter this conclusion. [my emphasis]

Note while this pertains to metadata, there’s no indication it addressed phone metadata.

Later, it cites two earlier FISC cases.

This Court has previously examined the issue of relevance for bulk collections. See [6 lines redacted]

While those involved different collections from the one at issue here, the relevance standard was similar. See 50 U.S.C. § 1842(c)(2) (“[R]elevant to an ongoing investigation to protect against international terrorism …. “). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain. As this Court noted in 2010, the “finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.”  [my emphasis]

Both, apparently, relied on the Pen Register statute, not Section 215, and one was fairly recent (2010 — perhaps that’s the geolocation one?).

But it appears not to reference an earlier Section 215 phone metadata case, not even to lay out the rationale for relevance and bulk collection.

In addition to references to these earlier apparently non-215 phone data precedents, Eagan also cites the government’s 2006 Memorandum of Law.

Accompanying the government’s first application for the bulk production of telephone company metadata was a Memorandum of Law which argued that “[i]nformation is ‘relevant’ to an authorized international terrorism investigation if it bears upon, or is pertinent to, that investigation.” Mem. of Law in Support of App. for Certain Tangible Things for Investigations to Protect Against International Terrorism, Docket No. BR 06- 05 (filed May 23, 2006), at 13-14 (quoting dictionary definitions, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978), and Fed. R. Evid. 4012°).

Normally, a judge would cite a precedential opinion, showing that another judge had agreed with such definitions. Not here. Eagan cites the government’s own memorandum for the definition for relevant. (She cites that memorandum at least two more times in her opinion.)

Which seems to suggest this 2013 opinion — one written after widespread leaks of the program — constitutes the first opinion systematically rationalizing this program.

Well over 7 years after it started.

There’s one more detail that seems to support this conclusion. The White Paper describes how the Administration shared significant FISC materials with the Intelligence and Judiciary Committees.

Moreover, in early 2007, the Department of Justice began providing all significant FISC pleadings and orders related to this program to the Senate and House Intelligence and Judiciary committees. By December 2008, all four committees had received the initial application and primary order authorizing the telephony metadata collection. Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees.

So in 2007 DOJ started providing “all significant pleadings.” By the end of the following year — perhaps not coincidentally, the same month Walton wrote his supplemental opinion — the committees got “the initial application and primary order.”

The initial application (including, presumably, that same 2006 Memorandum of Law cited by Eagan) and the primary order, the same order we got last week. No mention of the initial opinion.

It appears there is no initial opinion.

One more detail that I’ve mentioned, but bears mentioning again. The judge that appears to have allowed the government to start collecting the phone records of every American without laying out his legal rationale for allowing them to do so, Malcolm Howard? He served as Deputy Special Counsel in the Nixon-Ford White House, when a young Dick Cheney was learning the ropes as Assistant to the President and then Chief of Staff.

Perhaps they learned the ropes together?

Update: Remember how the White Paper had to dig up an outdated version of the OED to support its definition of “relevant”?

the Administration decided to use a 24-year old edition of the Oxford English Dictionary for this definition.

Standing alone, “relevant” is a broad term that connotes anything “[b]earing upon, connected with, [or] pertinent to” a specified subject matter. 13 Oxford English Dictionary 561 (2d ed. 1989).

Note, that appears to be the same one used in the 2006 Administration Memorandum of Law. There’s nothing that surprising about that — I suspect substantial parts of the White Paper were lifted from that Memorandum.

But it is the kind of thing both Malcolm Howard and Claire Eagan might have challenged — and an adversary probably would have.

It appears neither did. Which is just one measure of the degree to which those judges simply rubber stamped whatever the government put before them.