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How Trump Could Install a Mole in the Mueller Inquiry

For six years, I’ve been working to raise attention to a 2002 OLC memo that authorized the sharing of grand jury information with the President with no notice to the district court. In the New Republic, I talk about how Trump might be able to use it to order a DOJ lawyer to spy on the Mueller grand jury.

July 22, 2002, memo from the Justice Department’s Office of Legal Counsel, written by Jay Bybee, the author of the infamous torture memos, held that, under the statute, the president could get grand jury information without the usual notice to the district court. It also found that the president could delegate such sharing without requiring a written order that would memorialize the delegation.

Bybee’s memo relies on and reaffirms several earlier memos. It specifically approves two rationales for sharing grand jury information with the president that would be applicable to the Russian investigation. A 1997 memo imagined that the president might get grand jury information “in a case where the integrity or loyalty of a presidential appointee holding an important and sensitive post was implicated by the grand jury investigation.” And a 2000 memo imagined that the president might need to “obtain grand jury information relevant to the exercise of his pardon authority.”

If you set aside Trump’s own role in obstructing the investigation—including the firing of former FBI Director James Comey—these rationales are defensible in certain cases. In fact, the Justice Department has already shared information (though not from a grand jury) with the White House for one of these very reasons. In January, acting Attorney General Sally Yates warned White House Counsel Don McGahn that Russians might be able to blackmail then-National Security Advisor Mike Flynn. As Yates explained in her congressional testimony in May, after Flynn’s interview with the FBI, “We felt that it was important to get this information to the White House as quickly as possible.” She shared it so the White House could consider firing Flynn: “I remember that Mr. McGahn asked me whether or not General Flynn should be fired, and I told him that that really wasn’t our call, that was up to them, but that we were giving them this information so that they could take action.”

A similar situation might occur now that the investigation has moved to a grand jury investigation, if someone remaining in the White House—the most likely candidate is the president’s son-in-law, Jared Kushner—were found to be compromised by Russian intelligence. In Kushner’s case, there are clear hints that he has been compromised, such as when he asked to set up a back channel with the Russians during the transition.

If Trump were to rely on the memo, he might order a Justice Department lawyer to tell him what evidence Mueller had against Kushner, or whether Mike Flynn or former campaign manager Paul Manafort were preparing to cooperate with Mueller’s prosecutors if they didn’t get an immediate pardon. Unlike Yates, Trump would have an incentive to use such information to undercut the investigation into Russia’s meddling.

I point out that Trump’s partisan nominee to be Assistant Attorney General for Criminal Division, Brian Benczkowski, would be far more likely to share such information than the career prosecutors that currently have visibility onto the investigation (Benczkowski has refused to recuse from the Russian investigation, but has promised to follow ethical guidelines at DOJ).

One thing didn’t make the cut, though it’s a key reason why I think it possible someone is trying to use this precedent to provide Trump with a mole on the investigation.

Viet Dinh was both the key author of the PATRIOT Act as well as the procedures implementing these sharing rules. Dinh is also the Kirkland & Ellis partner who asked Benczkowski to exercise the really poor judgment of overseeing an investigation for Alfa Bank while he was awaiting a likely DOJ appointment. “I’ve known Viet Dinh for twenty years,” Benczkowski explained during his confirmation hearing for why he represented Alfa Bank while potentially up for nomination to DOJ.

Benczkowski certainly said the right things about honoring Mueller’s work. But Dinh, a guy who had a key role in compromising Benczkowski with respect to the investigation just as he got nominated played a key role in the sharing rules that might make it possible.

As I say in the piece, we had better hope DOJ guards recusal concerns a lot more closely than they seem to have been doing.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

One Thing Not Mentioned in Mueller Requests from the White House: The Putin Phone Call

Yesterday, three different outlets published versions of the list of stuff Robert Mueller has requested of the White House. The NYT describes Mueller asking for details of the in-person meeting with Russians after Comey’s firing, as well as details of Comey and Flynn’s firing,

Mueller’s office sent a document to the White House that detailed 13 different areas that investigators want more information about. Since then, administration lawyers have been scouring White House emails and asking officials whether they have other documents or notes that may pertain to Mr. Mueller’s requests.

One of the requests is about a meeting Mr. Trump had in May with Russian officials in the Oval Office the day after James B. Comey, the F.B. I director, was fired. That day, Mr. Trump met with the Russian foreign minister, Sergey V. Lavrov, and the Russian ambassador to the United States, Sergey I. Kislyak, along with other Russian officials. The New York Times reported that in the meeting Mr. Trump said that firing Mr. Comey relieved “great pressure” on him.

Mr. Mueller has also requested documents about the circumstances of the firing of Michael T. Flynn, who was Mr. Trump’s first national security adviser. Additionally, the special counsel has asked for documents about how the White House responded to questions from The Times about a June 2016 meeting at Trump Tower. That meeting was set up by Donald Trump Jr., the president’s eldest son, to get derogatory information from Russians about Hillary Clinton.

WaPo adds communications with Paul Manafort to the list and fleshes out the nature of the requests on Flynn and Comey.

Mueller has requested that the White House turn over all internal communications and documents related to the FBI interview of Flynn in January, days after he took office, as well as any document that discusses Flynn’s conversations with then­-Russian Ambassador Sergey Kislyak in December. Mueller has also asked for records about meetings then-Deputy Attorney General Sally Yates held with White House counsel Don McGahn in late January to alert him to Justice Department concerns about Flynn, as well as all documents related to Flynn’s subsequent ouster by the White House.

Regarding Comey, Mueller has asked for all documents related to meetings between Trump and Comey while Comey served at the FBI, records of any discussions regarding Comey’s firing and any documents related to a statement by then-press secretary Sean Spicer made on the night Comey was fired.

Here’s CNN’s mostly derivative version.

There’s one thing that’s not explicitly on this list (though it might be included in the larger request for details on Flynn’s firing): details surrounding the January 28th phone conversation between Trump and Putin, which included a bunch of people who happen to no longer be at the White House.

As a number of Democrats noted in the Sally Yates hearing before Senate Judiciary Committee, the call took place in the immediate wake of Yates’ two conversations with Don McGahn about Flynn’s potential for compromise by the Russians because of his lies about his conversation with Sergey Kislyak.

HIRONO: Others of my colleagues have mentioned, and you yourself, Mr. Clapper, said that RT is a Russian mouthpiece to spread propaganda. And, of course, we know that General Flynn attended a gala hosted by — or a 10th anniversary gala for RT in December, 2015, where he sat next President Putin and got paid over $33,000 for that.

Mr. Clapper, given the conversation that Ms. Yates provided to the White House regarding — and this is during the January 26th and 27th timeframe — regarding General Flynn, should he have sat in on the following discussions?

On January 28th, he participated in an hour-long call, along with President Trump, to President Putin. And on February 11th, he participated in a discussion with Prime Minister Abe and the president at Mar-a-Lago to discuss North Korea’s missile tests.

Should he — given the — the information that had already been provided by Ms. Yates, should he have participated in these two very specific instances?

In comments on Yates’ testimony when it got canceled on March 28, Adam Schiff focused on the possible explanation for why Flynn was kept on, through that meeting and for 18 days total after Yates’ warning to the White House.

In other words, the big question surrounding Flynn’s firing seems to have as much to do with why he wasn’t fired as why he was, eventually, 18 days after getting notice he was in trouble with DOJ. And the import of including him in that phone call with Putin seems to be a part of that.

Again, that may well be included in the universe of documents on Flynn’s firing (I’d love to see Yates’ firing in there as well, as the Muslim ban was used as an excuse to fire her just as she was raising concerns about Flynn). But it seems important to learn why Trump felt the need to keep Flynn on even after his communications with the Russians had gotten him in legal trouble.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Why Was Manafort FISA Tapped Rather than Criminal Tapped?

Congratulations to Donald Trump, who may have finally figured out how to prove his March 4 claim that there was a “tapp” on Trump Tower — by continuing to speak to Paul Manafort after FBI got a second FISA wiretap on him, at least according to the CNN’s report on the tap.

US investigators wiretapped former Trump campaign chairman Paul Manafort under secret court orders before and after the election, sources tell CNN, an extraordinary step involving a high-ranking campaign official now at the center of the Russia meddling probe.

The government snooping continued into early this year, including a period when Manafort was known to talk to President Donald Trump.

[snip]

The conversations between Manafort and Trump continued after the President took office, long after the FBI investigation into Manafort was publicly known, the sources told CNN. They went on until lawyers for the President and Manafort insisted that they stop, according to the sources.

It’s unclear whether Trump himself was picked up on the surveillance.

I mean, if you’re dumb enough to talk to a guy under active investigation, you should expect to be tapped. Trump should know this from his NY mobster buddies.

The CNN report — by the same team that last month revealed Carter Page had actually been wiretapped going back to 2014, too — is maddeningly vague about the dates of all this. Manafort was first targeted under FISA for his (and associated consulting companies, probably including Tony Podesta) Ukrainian influence peddling in 2014. Then the order lapsed, only to have a new one, possibly last fall, approved in association with the Trump investigation.

A secret order authorized by the court that handles the Foreign Intelligence Surveillance Act (FISA) began after Manafort became the subject of an FBI investigation that began in 2014. It centered on work done by a group of Washington consulting firms for Ukraine’s former ruling party, the sources told CNN.

The surveillance was discontinued at some point last year for lack of evidence, according to one of the sources.

The FBI then restarted the surveillance after obtaining a new FISA warrant that extended at least into early this year.

[snip]

The FBI interest deepened last fall because of intercepted communications between Manafort and suspected Russian operatives, and among the Russians themselves, that reignited their interest in Manafort, the sources told CNN. As part of the FISA warrant, CNN has learned that earlier this year, the FBI conducted a search of a storage facility belonging to Manafort. It’s not known what they found.

The gap would presumably have excluded June, given that Mueller reportedly didn’t learn about the June 9 meeting until the usual suspects started turning over records on it (though I may come back to that).

The report of a fall wiretap, based in part on intercepts of Russians, would put it well beyond the time Manafort got booted from the campaign (and might be consistent with the reporting of an earlier application followed by ultimate approval in the fall). The mention of a search of a storage facility suggests that Manafort would have been targeted under both 1805 (data in motion) and 1824 (data at rest, plus physical search like that used with the storage facility).

Here’s some relevant information from last year’s FISC and I Con the Record transparency numbers.

For the same authorities (1805, 1824, 1805/1824, and 1881c), the FISA Court, which uses different and in most cases more informative counting metrics, reports 1,220 orders granted, 313 orders modified, and 26 orders denied in part (which add up to I Con the Record’s 1,559), plus 8 orders denied, which I Con the Record doesn’t mention.

As an improvement this year, I Con the Record has broken down how many of these targets are US persons or not, showing it to be 19.9%. That means the vast majority of targeted FISA orders are targeted at people like Sergey Kislyak, the Russian Ambassador all of Trump’s people talked to.

This is the target number for the original report, not the order number, and it is an estimate (which is curious). This means at least 28 orders target multiple people. Neither ICTR nor FISC reveals how many US persons were approved for 705b, meaning they were spied on when they went overseas.

I include this, especially the FISC numbers (the top ones), to show that for the category that Manafort would have been targeted under, the court outright rejected 8 applications, denied in part — perhaps by approving only some of the facilities in the application — 18, and modified — which can often be minimization procedures — 260. Note, too, that among all the individual orders approved last year, roughly 336 were targeted at Americans like Manafort and Page. I assume there would be more minimization procedures on those targeting Americans, especially those who hang out with political candidates or the President.

All of which is my way of saying that for Manafort, in particular, the FBI may have had to use some kind of clean team to separate the political items from the foreign intelligence ones. The members of Congress that are the most likely sources for this story probably would have known that too, but it wouldn’t serve the point of the leak as well if that detail were included.

One more point.

The CNN piece is clear: FBI had a FISA order targeting Manafort (and probably others, probably the same ones who’ve been asked to testify, including Tony Podesta’s group), then let it lapse. They then got an order focused on election-related issues.

By the point they got the election-related FISA, the FBI was very deep into their investigation of Manafort for money laundering (and in NY, where FBI agents are notoriously gabby).

But at least given all the public reporting thus far, there have been no reported criminal warrants against Manafort, at least not before the no-knock search in VA this summer.

Which is odd, because they sure seem to have probable cause against him for crimes, as well. If Manafort were targeted by a criminal warrant, it’s nowhere near as clear that any minimization would be overseen by a court. That is, it might be more likely that Trump would get picked up in his rash conversations with someone known to be under investigation if that person were targeted with a criminal warrant than if he were targeted under FISA.

One, final, point. Craig Murray, who ferried something (though not emails) to Julian Assange in September 2016 claimed the emails had been picked obtained by American National Security types wiretapping [John] Podesta because of the Podesta Group’s lobbying for Saudi Arabia. As I noted at the time, that didn’t make any sense, partly because Tony would have been the target, not John, but also the FBI wouldn’t be all that interested in lobbying for Saudi Arabia.

Murray claimed the documents came from someone in the national security establishment, and implied they had come from legal monitoring of John Podesta because he (meaning John) is a lobbyist for Saudi Arabia.

Again, the key point to remember, in answering that question, is that the DNC leak and the Podesta leak are two different things and the answer is very probably not going to be the same in both cases. I also want you to consider that John Podesta was a paid lobbyist for the Saudi government — that’s open and declared, it’s not secret or a leak in a sense. John Podesta was paid a very substantial sum every month by the Saudi government to lobby for their interests in Washington. And if the American security services were not watching the communications of the Saudi government paid lobbyist then the American intelligence services would not be doing their job. Of course it’s also true that the Saudis’ man, the Saudis’ lobbyist in Washington, his communications are going to be of interest to a great many other intelligence services as well.

As a threshold matter, no national security agency is going to monitor an American registered to work as an agent for the Saudis. That’s all the more true if the agent has the last name Podesta.

But that brings us to another problem. John Podesta isn’t the lobbyist here. His brother Tony is. So even assuming the FBI was collecting all the emails of registered agent for the Saudis, Tony Podesta, even assuming someone in national security wanted to blow that collection by revealing it via Wikileaks, they would pick up just a tiny fraction of John Podesta’s emails. So this doesn’t explain the source of the emails at all.

They would — and apparently were — interested in tapping all the corrupt people working with corrupt Ukrainians, including Manafort and, maybe, Tony (but not John).

This in no way confirms Murray’s explanation — his story still makes no sense for the reasons I laid out when I first wrote the post. But I find it particularly interesting that Tony Podesta may well have been wiretapped along with Manafort, for his Ukrainian influence peddling, not his Saudi influence peddling, earlier in the year last year.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Can Congress — or Robert Mueller — Order Facebook to Direct Its Machine Learning?

The other day I pointed out that two articles (WSJ, CNN) — both of which infer that Robert Mueller obtained a probable cause search warrant on Facebook based off an interpretation that under Facebook’s privacy policy a warrant would be required — actually ignored two other possibilities. Without something stronger than inference, then, these articles do not prove Mueller got a search warrant (particularly given that both miss the logical step of proving that the things Facebook shared with Mueller count as content and not business records).

In response to that and to this column arguing that Facebook should provide more information, some of the smartest surveillance lawyers in the country discussed what kind of legal process would be required, but were unable to come to any conclusions.

Last night, WaPo published a story that made it clear Congress wanted far more than WSJ and CNN had suggested (which largely fell under the category of business records and the ads posted to targets, the latter of which Congress had been able to see but not keep). What Congress is really after is details about the machine learning Facebook used to identify the malicious activity identified in April and the ads described in its most recent report, to test whether Facebook’s study was thorough enough.

A 13-page “white paper” that Facebook published in April drew from this fuller internal report but left out critical details about how the Russian operation worked and how Facebook discovered it, according to people briefed on its contents.

Investigators believe the company has not fully examined all potential ways that Russians could have manipulated Facebook’s sprawling social media platform.

[snip]

Congressional investigators are questioning whether the Facebook review that yielded those findings was sufficiently thorough.

They said some of the ad purchases that Facebook has unearthed so far had obvious Russian fingerprints, including Russian addresses and payments made in rubles, the Russian currency.

Investigators are pushing Facebook to use its powerful data-crunching ability to track relationships among accounts and ad purchases that may not be as obvious, with the goal of potentially detecting subtle patterns of behavior and content shared by several Facebook users or advertisers.

Such connections — if they exist and can be discovered — might make clear the nature and reach of the Russian propaganda campaign and whether there was collusion between foreign and domestic political actors. Investigators also are pushing for fuller answers from Google and Twitter, both of which may have been targets of Russian propaganda efforts during the 2016 campaign, according to several independent researchers and Hill investigators.

“The internal analysis Facebook has done [on Russian ads] has been very helpful, but we need to know if it’s complete,” Schiff said. “I don’t think Facebook fully knows the answer yet.”

[snip]

In the white paper, Facebook noted new techniques the company had adopted to trace propaganda and disinformation.

Facebook said it was using a data-mining technique known as machine learning to detect patterns of suspicious behavior. The company said its systems could detect “repeated posting of the same content” or huge spikes in the volume of content created as signals of attempts to manipulate the platform.

The push to do more — led largely by Adam Schiff and Mark Warner (both of whom have gotten ahead of the evidence at times in their respective studies) — is totally understandable. We need to know how malicious foreign actors manipulate the social media headquartered in Schiff’s home state to sway elections. That’s presumably why Facebook voluntarily conducted the study of ads in response to cajoling from Warner.

But the demands they’re making are also fairly breathtaking. They’re demanding that Facebook use its own intelligence resources to respond to the questions posed by Congress. They’re also demanding that Facebook reveal those resources to the public.

Now, I’d be surprised (pleasantly) if either Schiff or Warner made such detailed demands of the NSA. Hell, Congress can’t even get NSA to count how many Americans are swept up under Section 702, and that takes far less bulk analysis than Facebook appears to have conducted. And Schiff and Warner surely would never demand that NSA reveal the extent of machine learning techniques that it uses on bulk data, even though that, too, has implications for privacy and democracy (America’s and other countries’). And yet they’re asking Facebook to do just that.

And consider how two laws might offer guidelines, but (in my opinion) fall far short of authorizing such a request.

There’s Section 702, which permits the government to oblige providers to provide certain data on foreign intelligence targets. Section 702’s minimization procedures even permit Congress to obtain data collected by the NSA for their oversight purposes.

Certainly, the Russian (and now Macedonian and Belarus) troll farms Congress wants investigated fall squarely under the definition of permissible targets under the Foreign Government certificate. But there’s no public record of NSA making a request as breathtaking as this one, that Facebook (or any other provider) use its own intelligence resources to answer questions the government wants answered. While the NSA does draw from far more data than most people understand (including, probably, providers’ own algorithms about individually targeted accounts), the most sweeping request we know of involves Yahoo scanning all its email servers for a signature.

Then there’s CISA, which permits providers to voluntarily share cyber threat indicators with the federal government, using these definitions:

(A) IN GENERAL.—Except as provided in subparagraph (B), the term “cybersecurity threat” means an action, not protected by the First Amendment to the Constitution of the United States, on or through an information system that may result in an unauthorized effort to adversely impact the security, availability, confidentiality, or integrity of an information system or information that is stored on, processed by, or transiting an information system.

(B) EXCLUSION.—The term “cybersecurity threat” does not include any action that solely involves a violation of a consumer term of service or a consumer licensing agreement.

(6) CYBER THREAT INDICATOR.—The term “cyber threat indicator” means information that is necessary to describe or identify—

(A) malicious reconnaissance, including anomalous patterns of communications that appear to be transmitted for the purpose of gathering technical information related to a cybersecurity threat or security vulnerability;

(B) a method of defeating a security control or exploitation of a security vulnerability;

(C) a security vulnerability, including anomalous activity that appears to indicate the existence of a security vulnerability;

(D) a method of causing a user with legitimate access to an information system or information that is stored on, processed by, or transiting an information system to unwittingly enable the defeat of a security control or exploitation of a security vulnerability;

(E) malicious cyber command and control;

(F) the actual or potential harm caused by an incident, including a description of the information exfiltrated as a result of a particular cybersecurity threat;

(G) any other attribute of a cybersecurity threat, if disclosure of such attribute is not otherwise prohibited by law; or

(H) any combination thereof.

Since January, discussions of Russian tampering have certainly collapsed Russia’s efforts on social media with their various hacks. Certainly, Russian abuse of social media has been treated as exploiting a vulnerability. But none of this language defining a cyber threat indicator envisions the malicious use of legitimate ad systems.

Plus, CISA is entirely voluntary. While Facebook thus far has seemed willing to be cajoled into doing these studies, that willingness might change quickly if they had to expose their sources and methods, just as NSA clams up every time you ask about their sources and methods.

Moreover, unlike the sharing provisions in 702 minimization procedures, I’m aware of no language in CISA that permits sharing of this information with Congress.

Mind you, part of the problem may be that we’ve got global companies that have sources and methods that are as sophisticated as those of most nation-states. And, inadequate as they are, Facebook is hypothetically subject to more controls than nation-state intelligence agencies because of Europe’s data privacy laws.

All that said, let’s be aware of what Schiff and Warner are asking for, however justified it may be from a investigative standpoint. They’re asking for things from Facebook that they, NSA’s overseers, have been unable to ask from NSA.

If we’re going to demand transparency on sources and methods, perhaps we should demand it all around?

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Facebook Doesn’t Need a Probable Cause Search Warrant to Turn Over Ad Data to Robert Mueller

People are shooting off their baby cannons in excitement with the news that Facebook turned over information to Robert Mueller that they didn’t turn over to Congress. The excitement comes, apparently, from the perception that if Mueller got more stuff than Congress, he must have gotten a probable cause search warrant, something implied — but not at all stated affirmatively — in this WSJ article.

Facebook Inc.  has handed over to special counsel Robert Mueller detailed records about the Russian ad purchases on its platform that go beyond what it shared with Congress last week, according to people familiar with the matter.

The information Facebook shared with Mr. Mueller included copies of the ads and details about the accounts that bought them and the targeting criteria they used, the people familiar with the matter said. Facebook policy dictates that it would only turn over “the stored contents of any account,” including messages and location information, in response to a search warrant, some of them said.

A search warrant from Mr. Mueller would mean the special counsel now has a powerful tool in his arsenal to probe the details of how social media was used as part of a campaign of Russian meddling in the U.S. presidential election. Facebook hasn’t shared the same information with Congress in part because of concerns about disrupting the Mueller probe, and possibly running afoul of U.S. privacy laws, people familiar with the matter said.

CNN similarly asserts that Mueller would need a warrant, without actually reporting any confirmation from Facebook that that’s what has happened.

Facebook gave Mueller and his team copies of ads and related information it discovered on its site linked to a Russian troll farm, as well as detailed information about the accounts that bought the ads and the way the ads were targeted at American Facebook users, a source with knowledge of the matter told CNN.

The disclosure, first reported by the Wall Street Journal, may give Mueller’s office a fuller picture of who was behind the ad buys and how the ads may have influenced voter sentiment during the 2016 election.

Facebook did not give copies of the ads to members of the Senate and House intelligence committees when it met with them last week on the grounds that doing so would violate their privacy policy, sources with knowledge of the briefings said. Facebook’s policy states that, in accordance with the federal Stored Communications Act, it can only turn over the stored contents of an account in response to a search warrant.

“We continue to work with the appropriate investigative authorities,” Facebook said in a statement to CNN.

Even in the criminal context, it’s not at all clear Mueller would need a probable cause search warrant. Here’s what WSJ and CNN said Facebook gave Mueller:

  • Copies of ads (which according to some reports, Facebook showed, but did not leave, with Congress)
  • Details about the accounts that bought them
  • Targeting criteria used to buy them

Both WSJ and CNN take from these details that Facebook treats these things — which are what the Internet Research Association and other fake subscribers included in their communications conducting an advertising transaction with Facebook — as “stored contents of an account” or “messages and location information.”

Given that these are communications with Facebook, not with the fake subscribers’ fake friends, it’s not at all clear that’s this would count as content. Here’s what Facebook gets asked for (and presumably delivers) in response to a 2703(d) order on an average real American, like Reality Winner.

A. The following information about the customers or subscribers of the Account:
1. Names (including subscriber names, user names, and screen names);
2. Addresses (including mailing addresses, residential addresses, business addresses, and e-mail addresses);
3. Local and long distance telephone connection records;
4. Records of session times and durations, and the temporarily assigned network addresses (such as Intemet Protocol (“IP”) addresses) associated with those sessions;
5. Length of service (including start date) and types of service utilized;
6. Telephone or instrument numbers (including MAC addresses);
7. Other subscriber numbers or identities (including temporarily assigned network addresses and registration Intemet Protocol (“IP”) addresses (including carrier grade natting addresses or ports)); and
8. Means and source of payment for such service (including any credit card or bank account number) and billing records.

B. All records and other information (not including the contents of communications) relating to the Account, including:
1. Records of user activity for each connection made to or from the Account, including log files; messaging logs; the date, time, length, and method of connections; data transfer volume; user names; and source and destination Intemet Protocol addresses;
2. Information about each communication sent or received by tbe Account, including tbe date and time of the communication, the method of communication, and the source and destination of the communication (such as source and destination email addresses, IP addresses, and telephone numbers). Records of any accounts registered with the same email address, phone number(s), method(s) of payment, or IP address as either of the accounts listed in Part I; and
3. Records of any accounts that are linked to either of the accounts listed in Part I by machine cookies (meaning all Facebook/Instagram user IDs that logged into any Facebook/Instagram account by the same machine as either of the accounts in Part I).

What would “all records and other information” relating to the account entail for an ad purchaser? After all, the fake account is not posting the ad, Facebook is. The fake account is using Facebook targeting criteria — again, communicating with Facebook, not its fake friends.

And if this is how Mueller got the Facebook data, it would be available with approval from a grand jury (and we know he’s got several grand juries lying around), with a relevance — not a probable cause — standard.

And that’s only if you’re talking criminal context. WSJ and CNN refer to Facebook’s privacy policy, which for legal reasons doesn’t cite all the ways they turn over data. In assuming that Mueller had to use a search warrant, both outlets are ignoring another obvious authority: Section 702.

We’re talking accounts believed (by both Facebook and the government) to be run by the Internet Research Association. The Intelligence Community Assessment on Russian tampering states, even in the unclassified version, that they believe IRA has ties to Russian intelligence.

  • The likely financier of the so-called Internet Research Agency of professional trolls located in Saint Petersburg is a close Putin ally with ties to Russian intelligence.

But even without that, we’re talking a foreign corporation engaging in activity that everyone involved agrees has foreign intelligence value, with most people claiming that they knowingly took part in an intelligence influence operation run by Russian spooks.

That’s solidly in the realm of what gets tasked, all the time, under Section 702’s Foreign Government certificate. Hell, using 702, Mueller could get the contents of the messages sent by the fake accounts to their fake friends, as well as anything else private in their accounts (and a whole lot more).

And the standard for 702 is not probable cause, it is foreigner (including foreign corporation) located overseas of foreign intelligence purpose.

I know everyone badly wants to assume Mueller has indictments in his back pocket, and so therefore are seeing criminal probable cause where there may be none (and where none is required). But both of these articles make certain assumptions about how Facebook treats ad transactions and, making those assumptions, rule out the 2703(d) order. And both of these articles are ignoring the availability of everything in IRA’s accounts — content or no — under Section 702.

Update: I believe these misleading leaks are coming from Congress, rather than from Facebook or Mueller. Note, for example, this WSJ explanation for why Facebook gave Mueller more than they gave Congress:

Facebook hasn’t shared the same information with Congress in part because of concerns about disrupting the Mueller probe, and possibly running afoul of U.S. privacy laws, people familiar with the matter said.

The concern about disrupting the Mueller probe would not be Facebook’s. It’d be Mueller and Congress’.

With that in mind, consider this article, from Bloomberg, which I also found sketchy. It claims that Mueller’s investigation has a “red-hot” focus on social media.

Russia’s effort to influence U.S. voters through Facebook and other social media is a “red-hot” focus of special counsel Robert Mueller’s investigation into the 2016 election and possible links to President Donald Trump’s associates, according to U.S. officials familiar with the matter.

Mueller’s team of prosecutors and FBI agents is zeroing in on how Russia spread fake and damaging information through social media and are seeking additional evidence from companies like Facebook and Twitter about what happened on their networks, said one of the officials, who asked not to be identified discussing the ongoing investigation.

It relies on two US officials, a common moniker for members of Congress or their staffers. And the article goes on to quote both Richard Burr and Mark Warner.

Intelligence Committee Chairman Richard Burr, a North Carolina Republican, said Tuesday that it’s “probably more a question of when” than if there will be a hearing with Facebook officials as part of his panel’s probe. Mark Warner, the committee’s top Democrat and a former telecommunications company founder, said Facebook’s revelation appears to be “the tip of the iceberg. I think there’s going to be much more.”

“This is the Wild, Wild West,” Warner said.

Warner has made no secret, for weeks, he wants more focus on the social media side of this. But Burr, here, seems to be reflecting the same considerations he does elsewhere: timing, which for him has been driven by ensuring the committee collects enough evidence to prepare before speaking to witnesses, and deference to Mueller’s investigation.

But consider the rest of the article, which suggests that Mueller’s investigation is going full steam after social media.

That’s pretty hard to square with the fact that Twitter hadn’t even considered doing a report until Facebook delivered theirs, which was provided voluntarily. And Google has done nothing yet, in spite of concerns about Russians exploiting YouTube.

Twitter Inc. is also expected to speak to congressional investigators in the coming weeks about Russian activity on its platform, said Sen. Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee last week. A spokeswoman for Twitter declined to comment on whether the company had received any warrants or handed anything over related to possible Russian ad buys.

Alphabet Inc.’s Google unit said in a statement, “We’re always monitoring for abuse or violations of our policies and we’ve seen no evidence this type of ad campaign was run on our platforms.” A person familiar with the matter said the company hasn’t been called to testify on the topic.

In other words, if Mueller is interested in social media, that interest is no longer than 10 days old, and did not drive Facebook’s reporting (though Mueller would have intelligence from the intelligence community, on top of whatever Facebook provided).

I think Warner wants Burr’s agreement to subpoena these providers now, which would permit SSCI to obtain the same stuff Mueller did. And if, in an effort to apply that pressure, Warner or his minions are telling journalists that Mueller got more because he used legal process, it would leave it to journalists to interpret what kind of (legally gagged, probably) process Mueller used. Which might result in precisely the kind of story we got: journalists reporting it involved a warrant based on their interpretation of how Facebook treats ad purchases.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Jared Firing Line

After long-standing reports that Steven Bannon will go to war against the “globalists” who remain in the White House, the WSJ has a report sourced to “people familiar with the matter” that there was a plan to oust Jared Kusher in June.

Some of President Donald Trump’s lawyers earlier this summer concluded that Jared Kushner should step down as senior White House adviser because of possible legal complications related to a probe of Russia’s involvement in the 2016 presidential election

[snip]

After some members of the legal team aired their concerns to Mr. Trump in June, including in at least one meeting in the White House, press aides to the legal team began to prepare for the possibility that Mr. Kushner would step down, drafting a statement explaining his departure, said people familiar with the matter.

Mr. Trump wasn’t persuaded that Mr. Kushner needed to leave. One person said Mr. Trump’s view was that Mr. Kushner hadn’t done anything wrong and that there was no need for him to step down.

The story includes a non-denial denial from Marc Kasowitz, who left with legal spox, Mark Corallo in July.

Mr. Kasowitz in a statement said: “I never discussed with other lawyers for the President that Jared Kushner should step down from his position at the White House, I never recommended to the President that Mr. Kushner should step down from that position and I am not aware that any other lawyers for the President made any such recommendation either.”

Kasowitz’ formulation “lawyers for the President” does not exclude “White House lawyers” at all.

Plus, if White House counsel who are not Trump’s personal lawyers recommended the President oust Kushner, it might explain one of the (many) reasons Robert Mueller might want to talk with Don McGahn and his deputy James Burnham.

Mueller has notified the White House he will probably seek to question White House counsel Don McGahn and one of his deputies, James Burnham. Mueller’s office has also told the White House that investigators may want to interview Josh Raffel, a White House spokesman who works closely with Trump son-in-law Jared Kushner.

And if, as WSJ reported, a statement explaining Kushner’s departure got drafted, then Raffel would be part of that.

But if I’m right, then I suspect the reasons for ousting Kushner go further than the ones described by the WSJ (which include his failure to identify the Russians he spoke with, his meetings with Russians (including the June 9 meeting at Trump Tower), and the possibility his continued presence in the White House would expose others employees and Trump to risk.

After all, just yesterday, in an interview where he was grilled about a divide between him and other Administration officials — including Ivanka and Jared — Steve Bannon went on 60 Minutes, coyly confirming that he’s furious about the Jim Comey firing, while pretending he hasn’t been leaking just that for weeks.

Jared was a key advisor in the decision to fire Comey.

At the Oval Office meeting on Monday, May 8, Trump described his draft termination letter to top aides who wandered in and out of the room, including then-Chief of Staff Reince Priebus, White House Counsel Donald McGahn and senior adviser Hope Hicks. Pence arrived late, after the meeting had begun. They were also joined by Miller and Trump’s son-in-law, Jared Kushner, both of whom had been with Trump over the weekend in Bedminster. Kushner supported the president’s decision.

Had he been ousted in July, the White House could have blamed it all on him, and let him take the fall (and Trump could even have pardoned him for his other Russian sins). But Trump decided his son-in-law had done nothing wrong, with the firing advice, or with all the meetings that Trump also didn’t fault Mike Flynn for, so Trump ignored the advice of a number of his lawyers.

Update: Ty Cobb all but names Bannon to the WaPo.

In a statement Monday night, White House lawyer Ty Cobb blamed the disclosure of the internal debate on former White House staffers seeking to tarnish Kushner, who Cobb described as “among the President’s most trusted, competent, selfless and intelligent advisers.”

“Those whose agendas were and remain focused on sabotaging him and his family for misguided personal reasons are no longer around,” said Cobb, who was brought aboard in July to specialize in the Russia inquiry. “All clandestine efforts to undermine him never gained traction.”

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Don Jr Does Not Recall Not Recalling Rinat Akhmetshin at the June 9 Meeting

Don Jr had himself a “Half Hillary” today, upwards of five hours of testimony to the Senate Judiciary Committee, after which the low-stamina 39 year old called it quits.

Already, Senators Blumenthal and Coons suggest there were gaps or clear lies in his testimony. And apparently after the testimony, Robert Mueller alerted the White House he’ll seek testimony from the people who helped Pops Trump write a misleading statement about the meeting.

The reason for that is obvious: in his statement, Jr changed his story from what the original White House statement was, to offer an explanation for how the Pop-crafted statement makes sense. He knew the meeting pertained to dirt on Hillary, but ultimately it was just about adoption.

In his email to me Rob suggested that someone had “official documents and information that would incriminate Hillary [Clinton] and her dealings with Russia” and that the information would be “very useful” to the campaign. I was somewhat skeptical of his outreach, as I had only known Rob as Emin’s somewhat colorful music promoter who had worked with famous pop singers such as Michael Jackson. Since I had no additional information to validate what Rob was saying, I did not quite know what to make of his email. I had no way to gauge the reliability, credibility or accuracy of any of the things he was saying. As it later turned out, my skepticism was justified. The meeting provided no meaningful information and turned out not to be about what had been represented. The meeting was instead primarily focused on Russian adoptions, which is exactly what I said over a year later in my statement of July 8, 2017.

Of course, by crafting that nonsensical statement, Don Jr is making it clear a quid pro quo was discussed: Dirt, in exchange for movement on the Magnitsky sanctions.

I’m more interesting in the things the forgetful 39 year old could not recall. While his phone records show he spoke to Emin Agalarov, the rock star son of Aras Agalarov, who has been dangling real estate deals in Russia for the Trumps for some time, for example, he doesn’t recall what was discussed.

Three days later, on June 6th, Rob contacted me again about scheduling a time for a call with Emin. My phone records show three very short phone calls between Emin and me between June 6th and 7th. I do not recall speaking to Emin. It is possible that we left each other voice mail messages. I simply do not remember.

This is important, because those conversations probably explained precisely what was going to happen at that meeting (and how it might benefit real estate developer Aras Agalarov), but Jr simply can’t recall even having a conversation (or how long those conversations were).

He also doesn’t recall whether he discussed the meeting, after the fact, with Jared, Manafort, or (the unspoken “anyone else” here is pregnant) Pops.

The meeting lasted 20-30 minutes and Rob, Emin and I never discussed the meeting again. I do not recall ever discussing it with Jared, Paul or anyone else. In short, I gave it no further thought

Once we find out he did discuss it with Pops and others, he can say he’s stupid and we’ll all believe him.

Most interesting, to me, is his claim to only recall seven participants in the meeting.

As I recall, at or around 4 pm, Rob Goldstone came up to our offices and entered our conference room with a lawyer who I now know to be Natalia Veselnitskaya. Joining them was a translator and a man who was introduced to me as Irakli Kaveladze. After a few minutes, Jared and Paul joined. While numerous press outlets have reported that there were a total of eight people present at the meeting, I only recall seven. Because Rob was able to bring the entire group up by only giving his name to the security guard in the lobby, I had no advance warning regarding who or how many people would be attending. There is no attendance log to refer back to and I did not take notes.

The unstated subtext here is even more pregnant. Don Jr accounts for seven of the participants in this meeting:

(3) Himself, Paul Manafort, Jared Kusher

(4) Natalia Veselnitskaya, her translator, the Agalarov’s real estate invstment executive Irakli Kaveladze, and Rob Goldstone

So what he really means to say is he doesn’t recall the presence of Rinat Akhmetshin, who has ties to Russian intelligence and a history of fending off accusations of hacking.

I’d say those three gaps — what Agalarov told him to expect from the meeting in calls arranged beforehand, what he told Pop about the meeting, and that a suspected spook was there — are pretty interesting things for a young guy like Jr to forget.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

CNN Worries about Mueller’s Aggressive Tactics, But Real Concern May Be Senate Intelligence Committee

CNN has a cryptic story — pitched as evidence that the committees conducting the Russian investigation may be clashing with the Mueller investigation — suggesting two kinds of “aggressive tactics” on the part of Robert Mueller’s team.

The less cryptic of the two tactics is that the FBI seized attorney-client privileged documents in the morning raid of Manafort’s house.

Mueller issued subpoenas to Manafort’s former lawyer and current spokesman and authorized a pre-dawn raid of his Virginia home in late July.

During that raid, Mueller’s investigators took documents considered to be covered by attorney-client privilege, sources told CNN.

Lawyers from the WilmerHale law firm, representing Manafort at the time, warned Mueller’s office that their search warrant didn’t allow access to attorney materials. The documents in question have now been returned, the sources say.

The episode raised questions about whether investigators have seen materials they weren’t entitled to obtain.

“You can’t unsee something,” one source said.

It’s not an uncommon problem in FBI investigations. US attorneys typically have separate document-review teams to prevent investigators from handling materials they aren’t allowed to have. It’s not clear what procedures Mueller’s office uses.

We first head of this claim not from Manafort, but from Trump’s lawyer, John Dowd, via an email sent to WSJ but instead reported by Fox.

Dowd also said agents seized “privileged and confidential materials prepared for Mr. Manafort by his counsel to aid him in his cooperation with the Congressional committees,”

The claim that this privileged information pertained to Manafort’s cooperation with the Congressional committees may help to elucidate the second claim: that Mueller’s lawyers made an agreement with Manafort’s lawyers about what they could obtain from the Senate Intelligence Committee, then overstepped it in trying to get an actual transcript of the interview. CNN rather unhelpfully doesn’t tell us when Mueller made the agreement with Manafort’s lawyers about his appearance before the Senate Intelligence Committee, before or after the interview and the raid.

After Manafort privately interviewed with Senate intelligence committee staff in late July to discuss the June 2016 meeting between Trump Jr. and Russian operatives, Mueller’s lawyers have struggled to get a copy of the interview transcript.

Manafort’s attorneys, in talks with the special counsel’s office, agreed to allow Mueller’s team only to get the documents Manafort had turned over to the committee, not the interview transcript, according to the sources.

Yet an attorney with the Mueller team later told the committee that they were authorized by Manafort’s representatives to have the Manafort interview transcript, sources familiar with the discussions told CNN. Committee lawyers later learned from Manafort’s attorneys that they had not provided that consent, the sources say.

As a result of the dispute, the committee hasn’t turned over any documents and the matter is still under discussion, sources say.

That’s critically important given the concern (which is real), that Mueller’s team “can’t unsee something.” That is, they may have seen something in the privileged communications about Manafort’s interview strategy that made them interested in the transcript, and only then asked for the transcript. Alternately, Manafort (and/or Dowd!) may just be bullshitting here, in a way to get SSCI to withhold something that became far more damning after the raid on his home.

Dowd’s other complaints — that Mueller didn’t need to raid Manafort’s home because he could get everything via other means, as witnessed by Manafort’s cooperation with SSCI — suggest the latter may be the case.

Dowd, in his note, questioned the validity of the search warrant itself, calling it an “extraordinary invasion of privacy.” Dowd said Manafort already was looking to cooperate with congressional committees and said the special counsel never requested the materials from Manafort.

“These failures by Special Counsel to exhaust less intrusive methods is a fatal flaw in the warrant process and would call for a Motion to Suppress the fruits of the search,” Dowd wrote, arguing the required “necessity” of the warrant was “misrepresented to the Court which raises a host of issues involving the accuracy of the warrant application and the supporting FBI affidavit.”

But there’s something else important here. As I laid out here, the Mueller raid happened in the wake of two developments in the Senate Judiciary Committee. On Monday, July 24 (“last night” in a July 25 release), Grassley and Feinstein issued a subpoena for Manafort, in particular complaining that Manafort wanted to appear before just one committee, SSCI.

While we were willing to accommodate Mr. Manafort’s request to cooperate with the committee’s investigation without appearing at Wednesday’s hearing, we were unable to reach an agreement for a voluntary transcribed interview with the Judiciary Committee.  Mr. Manafort, through his attorney, said that he would be willing to provide only a single transcribed interview to Congress, which would not be available to the Judiciary Committee members or staff.  While the Judiciary Committee was willing to cooperate on equal terms with any other committee to accommodate Mr. Manafort’s request, ultimately that was not possible. Therefore, yesterday evening, a subpoena was issued to compel Mr. Manafort’s participation in Wednesday’s hearing. As with other witnesses, we may be willing to excuse him from Wednesday’s hearing if he would be willing to agree to production of documents and a transcribed interview, with the understanding that the interview would not constitute a waiver of his rights or prejudice the committee’s right to compel his testimony in the future.

That is, Manafort was digging his heels in on a strategy that would have him cooperate exclusively with SSCI, not with SJC. And, as with Mueller, Manafort was refusing to turn over that transcript to SJC.

Faced with the threat of the subpoena, however, Manafort agreed to turn over documents and suggested he might be willing to do a separate transcribed interview.

Faced with issuance of a subpoena, we are happy that Mr. Manafort has started producing documents to the Committee and we have agreed to continue negotiating over a transcribed interview. It’s important that he and other witnesses continue to work with this committee as it fulfills its oversight responsibility. Our investigation is still in its early stages, and we will continue to seek information from witnesses as necessary. As we’ve said before, we intend to get the answers that we need, one way or the other. Cooperation from witnesses is always the preferred route, but this agreement does not prejudice the committee’s right to compel his testimony in the future.

This is the reluctant, last minute “cooperation” that Dowd pointed to as basis for his claim that Mueller could have gotten Manafort’s cooperation via other means, and part of that cooperation had Manafort undergoing a transcribed interview solely with SSCI.

Hours after Manafort made this agreement with SJC, Mueller’s team raided Manafort.

Two more details are worth recalling. We now know that on the day the WaPo broke the story of Mueller’s raid of Manafort, Donald Trump bitched out Mitch McConnell on the phone about not protecting him in the Russia probe. NYT described Trump as being even angrier about that than McConnell’s failure to pass TrumpCare.

During the call, which Mr. Trump initiated on Aug. 9 from his New Jersey golf club, the president accused Mr. McConnell of bungling the health care issue. He was even more animated about what he intimated was the Senate leader’s refusal to protect him from investigations of Russian interference in the 2016 election, according to Republicans briefed on the conversation.

That’s when Dowd started emailing reporters at Murdoch publications, complaining that the Manafort raid endangered Trump.

Now consider that the other thing CNN includes among Mueller’s aggressive tactics — his subpoena of Manafort’s former lawyer Melissa Laurenza — is effectively a subpoena of a former McConnell staffer.

The subpoenas seeking documents and testimony were sent to Melissa Laurenza, an attorney with the Akin Gump law firm who until recently represented Manafort, and to Jason Maloni, who is Manafort’s spokesman, according to people familiar with the matter.

So it may be that Trump believed Manafort had certain understandings with McConnell that the raid — executed hours after Manafort’s SSCI interview — disrupted.

All that being said, once you consider that both Mueller’s team and Grassley’s committee are facing similar difficulties with Manafort, it suggests the focus here should not be on Mueller, but instead on what kind of special deals SSCI (Chaired by former Trump advisor Richard Burr) is offering up.

Sure, we have yet to have committees granting immunity to protect the president and his lackeys — which is what thwarted the Iran-Contra investigation. But given that SSCI seems to have offered to serve as a black hole for Manafort’s sworn claims, I think it time to stop assuming, as many in DC are doing, that that’s where the grown-ups live.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Two Addendums To Ben Wittes’ “How to Read an Investigation”

It’s September 4, 2017. I’m going to say something nice about Ben Wittes.

His post, How to Read a News Story About an Investigation: Eight Tips on Who Is Saying What, is a useful primer for how to read all these stories about the investigations into the Russian hacks. As someone who covered the last major Presidential investigation (the CIA Leak Investigation) far more closely than Ben, in large point because the sourcing on those stories was so badly abused, I’ve been thinking about a similar post on how to cover such cases (which would include the advice “don’t do tick tick tick boom tweets because they turn our legal system into a game”). I’d include much of what he wrote here. I have slightly to significantly less faith in the sourcing rigor of journalists than Ben does — a skepticism that served me well even before the time we learned Pulitzer prize winner Judy Miller agreed to refer to the Vice President’s Chief of Staff as a “former Congressional staffer” to hide that leaked classified information (possibly including Plame’s identity) came from the vicinity of PapaDick. But in general this is a useful start.

I’d two more general rules, though. First, while Ben implicitly suggests you need to consider the beat of the journalists in question in this passage, I’d make it an explicit rule. Consider the beat of the journalist writing the story.

The story is attributed “to interviews with a dozen administration officials and others briefed on the matter.” This is a show of strength upfront on the part of reporters Michael Schmidt and Maggie Haberman (who, as an antecedent matter, both have a great deal of credibility with me). They are signaling that their sourcing is broad and that at least some of it comes from within the executive branch (“administration officials”). Applying Rule No. 5, note that this wording is consistent both with sources attached to the investigation and with sources in the White House or in the Justice Department. Note also that Haberman is a White House reporter famously well-sourced with the group of people immediately around President Trump.

The sources for the triumvirate behind a long string of big WaPo Russian stories — Greg Miller, Ellen Nakashima, and Adam Entous — are going be different than the sources for the more recent triumvirate leading the pack on Russia stories — Carol Leonnig, Tom Hamburger and Rosalind Helderman, and it makes a difference on the impartiality of the sources.

In addition, while Ben describes how much lawyers who aren’t prosecutors like to leak (prosecution teams do leak, but very very very carefully), he doesn’t say something else. Leaking to the press is a very good way for co-conspirators to communicate with each other, without risking obstruction charges for doing so. So when you’re trying to understand why a likely legal source is leaking something, it’s worth considering what information that passes on to co-conspirators. For example, such leaks are a good way to compare notes on a false story. Or, in the case of dumb Don Jr who released the emails behind the June 9 meeting, it’s a way to ensure that your co-conspirators know what evidence that might previously have been hidden law enforcement may be looking at. So it’s not just a good idea to remember that lawyers leak a lot (and if those lawyers’ clients just appeared before the grand jury, their information about questions raised would only be second-hand). It’s a good idea to consider what information is not actually intended for you, the dear reader, but rather is intended for co-conspirators, up to and including the pardoner-in-chief.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Steele Dossier and WaPo’s Trump Tower Scoop

For some reason, many people who’re convinced the Trump Russia investigation will hit paydirt but who haven’t been particularly attentive believe the Steele dossier must all be true. This, in spite of the fact that some parts of it clearly are not true. The best example of that is report 086, labeled as July 25, 2015 (but which must actually date to July 2016), which quotes a former senior Russian intelligence official claiming FSB was having difficulty compromising western and G7 government targets. In the previous year, the Russians had been enjoying quite a lot of success against just those kinds of targets, including the Joint Chiefs of Staff (Russia’s APT 29 is also believed to have compromised the DNC in July 2015), making it surprising anyone following Russian matters even marginally closely could present that report as credible.

The Steele dossier is not a document that is either credible or not as a whole; it is a series of raw intelligence reports based off a series of sources, some of which conflict with each other, some of which may be credible, others of which are less so. Moreover, there are a number of details about the dossier as we received it or as we’ve since learned about its production that raise legitimate questions about its quality.

Two seemingly contradictory claims provide one example that is especially noteworthy given WaPo’s report that the Trump organization inked a branding deal in Russia in late 2015. The very first report released as the Steele dossier, dated June 20, claims that the FSB has, for years, been trying to cultivate Trump by offering him “lucrative real estate development deals in Russia” but “for reasons unknown, TRUMP had not taken up any of these.”

The sourcing on this claim definitely includes “a close associate of TRUMP who had organized and managed his recent trips to Moscow” (though how would they know FSB was dangling real estate to compromise Trump unless they were themselves tied to FSB?) and may include the trusted compatriot of a “senior Foreign Ministry figure.”

Compare that with the undated report (it probably dates to between July 19 and July 30, 2016) crediting “a separate source with direct knowledge” claiming that Trump’s “claimed minimal investment profile in Russia … had not been for want of trying.”

Which is it? Has Trump been pushing for real estate deals but failing, or have figures close to Putin been trying to entice him with such deals only to have him respond with remarkable coyness?

A September 14 report, reported second-hand from two people in Petersburg, goes so far as to claim Trump had even paid bribes to get business deals in the city, but offered little more. Significantly, the sources said Aras Agalarov — who was involved in the June 9, 2016 meeting offering dirt on Clinton in New York’s Trump Tower — would have any details on real estate deals and sex parties and the clean-up thereof.

All of which is to say that in three different reports, Steele’s sources offered conflicting details about whether Trump was trying to get business in Russia but had failed, or Russia was trying to suck Trump into business deals as part of a program to compromise him, only to have him inexplicably resist.

Which brings us to the WaPo’s latest scoop, which reveals that between November 2015 and January 2016, the Trump organization signed a licensing deal for a big real estate project in Moscow, which ended up flopping because there was actually no deal behind it.

As part of the discussions, a Russian-born real estate developer urged Trump to come to Moscow to tout the proposal and suggested he could get President Vladimir Putin to say “great things” about Trump, according to several people who have been briefed on his correspondence.

The developer, Felix Sater, predicted in a November 2015 email that he and Trump Organization leaders would soon be celebrating — both one of the biggest residential projects in real estate history and Donald Trump’s election as president, according to two of the people with knowledge of the exchange.

Sater wrote to Trump Organization Executive Vice President Michael Cohen, “something to the effect of, ‘Can you believe two guys from Brooklyn are going to elect a president?’ ” said one person briefed on the email exchange. Sater emigrated to the United States from what was then the Soviet Union when he was 8 and grew up in Brooklyn.

Trump never went to Moscow as Sater proposed. And although investors and Trump’s company signed a letter of intent, they lacked the land and permits to proceed and the project was abandoned at the end of January 2016, just before the presidential primaries began, several people familiar with the proposal said.

[snip]

Discussions about the Moscow project began in earnest in September 2015, according to people briefed on the deal. An unidentified investor planned to build the project and, under a licensing agreement, put Trump’s name on it. Cohen acted as a lead negotiator for the Trump Organization. It is unclear how involved or aware Trump was of the negotiations.

For six months, Christopher Steele pushed his sources for information on any deals Trump had planned in Russia. And only one of them — the one suggesting his go-between consult with Agalarov — offered any hint that a deal might have actually been done. Yet just months earlier, a deal had purportedly been signed, a deal personally involving Michael Cohen, who figures prominently throughout the dossier.

At least on their face, those are contradictory claims, ones that (because the WaPo story is backed by documents Congress will shortly vet) either emphasize how limited Steele’s collection was, even on one of his key targets like Cohen, or may even hint he was getting disinformation.

Or perhaps reading them in tandem can elucidate both?

First, some comments on the WaPo story.

It seems the real story here is as much the details as the fact that the deal was proposed. For example, I’m as interested that Felix Sater, from whom (as the story notes) Trump has been trying to distance himself publicly for years, was still brokering deals for the Trump organization as late as November 2015 as any other part of the story. See this post for some reasons why that’s so interesting.

It’s also quite significant that whoever leaked this to the WaPo did not explain who the investors were. Schedule another scoop in a week or so for when some outlet reveals that detail, because I suspect that’s as big a part of the story as the fact that the deal got signed. What entity came to Cohen months after Trump had kicked off his presidential campaign, and offered up the kind of branding deal that Trump loves (and which at least some of Steele’s sources say Trump had been seeking for over a decade), yet without the permits that would be a cinch if Putin and the FSB were really pushing the deal as part of a plan to compromise the candidate?

The sourcing, too, is of particular interest. WaPo describes its story as coming from, “several people familiar with the proposal and new records reviewed by Trump Organization lawyers;” in another place it describes its sources as, “several people who have been briefed on his correspondence.”  It explains that the emails are going to be turned over to Congress soon.

The new details from the emails, which are scheduled to be turned over to congressional investigators soon, also point to the likelihood of additional contacts between Russia-connected individuals and Trump associates during his presidential bid.

This all feels like an attempt, on the part of Trump lawyer Michael Cohen, to reveal to Trump via non-obstructive channels what he has found in a review of documents he’s about to turn over, with an emphasis on some of the most damning parts (Sater and the timing), but without yet revealing the public detail of the investors. By releasing it in this form, Cohen’s associates give Trump warning of what’s about to come, while blunting the damage the revelation will have in more fleshed out form.

Finally, the WaPo emphasizes Sater’s push for Trump to get Putin to say nice things. Particularly given the lack of permits here, that suggests Sater recognized the deal was not actually done, it needed powerful push from Putin. A push that, given the January collapse, apparently didn’t come in timely fashion. That may be the more interesting take-away here. The deal was, when Sater bragged about it to the guy who (according to Steele’s dossier) would shortly go on to clean up Paul Manafort’s earlier corrupt discussions with Russia, illusory. But it makes it clear that Cohen, if and when he had those discussions, was aware of the Trump organization’s earlier, failed effort to finally brand a building in Moscow. It would mean that if those dodgy meetings in Prague actually happened, they came against the backdrop of Putin deciding not offer the help needed to make the Trump deal happen in the months before the election started.

All that may suggest the Steele dossier may instead be rich disinformation on a key point, disinformation that hid how active such discussions really were.

In any case, the WaPo story is not definitive one way or another. It may be utterly damning, the kind of hard evidence Cohen is about to turn over that he is aware could really blow the investigation into Trump wide open, or it could be yet more proof that Trump continued to resist the allure of real estate deals in Russia, as some of Steele’s sources claimed. But it does raise some important questions that reflect back on the Steele dossier.

Update: NYT got the actual language of two of the Sater emails, which have now been delivered to HPSCI.

Michael I arranged for Ivanka to sit in Putins [sic] private chair at his desk and office in the Kremlin. I will get Putin on this program and we will get Donald elected. We both know no one else knows how to pull this off without stupidity or greed getting in the way. I know how to play it and we will get this done. Buddy our boy can become President of the USA and we can engineer it. I will get Putins [sic] team to buy in on this, I will manage this process.

[snip]

Michael we can own this story. Donald doesn’t stare down, he negotiates and understand the economic issues and Putin only want to deal with a pragmatic leader, and a successful business man is a good candidate for someone who knows how to negotiate. “Business, politics, whatever it allis the same for someone who knows how to deal.”

Why does Sater tie the Trump Tower deal so closely with getting Trump elected?

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.