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What Did Mueller Achieve with the Internet Research Agency Indictment?

Back during Nunes Week, Trey Gowdy described the importance of Robert Mueller’s investigation by stating that we were only seeing half of what he was doing. The other half of his work, Gowdy said, was the counterintelligence side, the investigation into what Russia did to the US in 2016.

Friday, Rod Rosenstein rolled out the first glimpse of the other half of that investigation, an indictment of 13 Russians tied to the Internet Research Agency, the Russian troll factory. The indictment accuses IRA of 8 crimes: criminal conspiracy to defraud the United States, conspiracy to commit wire fraud and bank fraud, and five counts of aggravated identity theft.

In the wake of that indictment, the court unsealed a February 7  plea agreement with Californian Richard Pinedo, for identity theft (basically, selling bank account numbers; the information doesn’t identify the users who purchased the bank account numbers as IRA personnel who used them to set up “American” identities, but that is clearly what happened).

The 13 Russians charged in the IRA indictment — which include Yevgeniy Prigozhin, the close Putin associate who owns the company, those in charge of the operation (which was not limited to US targeting), down to a few of the analysts who did the troll work — will never be extradited to the US, though the most senior among them will surely be sanctioned. Nor will Putin in any way retaliate against them — they were doing work he approved of! Further, by criminalizing “information warfare” (as the Russians admitted they were engaged in, and as we do too, under the same name) we risk our own information warriors being indicted in other countries.

So what purpose did the indictment serve? Here are some thoughts:

Creating a paper trail

Rosenstein and Chris Wray have both said they believe investigators should speak through indictments and other official documents, not through Comeyesque press conferences. Here we have an indictment that serves as a record of what Mueller’s team has found.

We would probably have gotten it in any case, as Jeff Sessions’ DOJ has emphasized bringing more cybersecurity related indictments.

But that we did get it addresses one of the questions we’ve gotten about the Mueller investigation: whether we’ll get to read a report of what he has found.

To the extent that something is indictable, even if that indictment would name Russians or others located overseas, I guess we should expect more of the same.

Establishing bipartisan credibility for the larger investigation

The reason I keep pointing to Gowdy’s statements in support of the investigation in the last several weeks is because his actions seem to reflect one of the most partisan Republicans reacting soberly to an attack on the country, rather than just one party.

And while the details of the indictment — most notably that the trolls affirmatively supported Bernie Sanders as well as Trump — have resurfaced the old primary recriminations, for the most part, the indictment has provided a way for people from both parties to agree to the reality of the attack. Trump said Mueller did a good job with the indictment (admittedly, he may be currying favor). Trump’s National Security Advisor HR McMaster responded to the indictment by declaring the evidence that Russia interfered in the election “incontrovertible.” This indictment offers a way for even self-interested Republicans to start acknowledging the reality of what happened.

The indictment also gave Rod Rosenstein an opportunity to own this investigation with a press conference announcing it. None of the prosecutors tied to the case appeared (since I track these things, know that Jeannie Rhee, Rush Atkinson, and Ryan Dickey are on the docket), just Rosenstein. Hopefully, tying him to this non-offensive indictment will make it harder to fire Rosenstein, and thereby further protect Mueller.

Reiterating the crime of conspiracy to defraud the United States

The most interesting of the three crimes charged in the IRA indictment is the first, the conspiracy to defraud the United States. The indictment describes the conspiracy this way:

U.S. law bans foreign nationals from making certain expenditures or financial disbursements for the purpose of influencing federal elections. U.S. law also bars agents of any foreign entity from engaging in political activities within the United States without first registering with the Attorney General. And U.S. law requires certain foreign nationals seeking entry to the United States to obtain a visa by providing truthful and accurate information to the government.

Effectively, Mueller is saying that it’s not illegal, per se, to engage in political trolling (AKA information warfare), but it is if you don’t but are legally obliged to register before you do so. That’s an important distinction, because much of what these trolls did is accepted behavior in American politics — all sides did this in 2016, including people employed by campaigns and others expressing their own political opinions. Trolling (AKA information warfare) only becomes illegal when you don’t carry out the required transparency or reporting before you do so.

The charge of a conspiracy to defraud the United States has a very important parallel elsewhere in this investigation, in the first charge in the Paul Manafort and Rick Gates indictment. The indictment explains,

It is illegal to act as an agent of a foreign principal engaged in certain United States influence activities without registering the affiliation. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to provide a detailed written registration statement to the United States Department of Justice. The filing, made under oath, must disclose the name of the foreign principal, the financial payments to the lobbyist, and the measures undertaken for the foreign principal, among other information. A person required to make such a filing must further make in all lobbying material a “conspicuous statement” that the materials are distributed on behalf of the foreign principal, among other things. The filing thus permits public awareness and evaluation of the activities of a lobbyist who acts as an agent of a foreign power or foreign political party in the United States.

The Manafort indictment then argues that by hiding that the lobbying work they were doing was on behalf of Ukraine’s Party of Regions they, “knowingly and intentionally conspired to defraud the United States by impeding impairing, obstructing, and defeating the lawful governmental functions of a government agency, namely the Department of Justice and the Department of the Treasury.” I’ll have more to say about this parallel in coming days, but suffice it to say that Mueller is alleging that Manafort is the mirror image of the troll farm, engaging in politics while hiding on whose behalf he’s doing it (he was arguably doing the same in Ukraine). [Update: see this post for more on how this might work.]

In both cases, the indictments substantiate the conspiracy by naming a variety of crimes, like money laundering and identity theft.

I suspect we’ll be seeing more of this structure going forward (and suspect it’s something the numerous appellate specialists on Mueller’s team have been spending a lot of time thinking about).

Laying out how Americans might be involved with or without “colluding”

Much has been made of Rosenstein’s line, “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” I don’t read too much into that. Rather, I think Rosenstein included it because the indictment does explicitly and implicitly describe actions many Americans and possible Americans took that were part of this conspiracy. That includes:

Illegal compensated acvitities

  • Richard Pinedo: Selling Russian trolls (and others) bank account numbers they can use to conduct identity fraud
  • Unknown persons: Providing social security numbers and fake US drivers licenses of Americans
  • Unknown persons: Selling stolen credit card information

Presumptively legal compensated activities

  • Unknown Americans: Renting servers in the US to run VPNs to hide their foreign location
  • Yahoo, Gmail, Paypal: Providing email and PayPal accounts the Russians used as the basis for social media accounts
  • Twitter, Instagram, Facebook: Providing those social media accounts
  • Twitter, Instagram, Facebook: Selling advertisements on social media
  • Unknown Trump associates: Paying for IRA rally expenses
  • Paid providers: Building a cage, acquiring a costume, and posing as Hillary in prison stunt at a FL event
  • Unknown US person: Providing posters for a Support Hillary, Save American Muslims rally
  • Unknown American: Holding a sign in front of the White House on May 29, 2016

Uncompensated activities

  • Unknown Americans: Interacting with Aleksandra Krylova and Anna Bogacheva when they traveled to the US sometime between June 4 and June 26, 2014 to conduct reconnaissance and another co-conspirator that November
  • Members of the media: Accepting tips and promoting IRA events
  • A member of a real TX-based Tea Party organization: Advising the conspirators to focus on the purple states “like Colorado, Virginia & Florida”
  • Unwitting members, volunteers, and supporters of the Trump Campaign involved in local community outreach, as well as grassroots groups that supported then-candidate Trump: Distributing IRA materials through existing channels of those groups
  • Administrators of large social media groups focused on U.S. politics: Promoting IRA events
  • Trump volunteer: Providing signs for the March for Trump event and otherwise recruiting for it
  • A Florida-based political activist identified as the “Chair for the Trump Campaign” in a particular Florida county: Advising on more locations and logistics for the Florida Trump event
  • Campaign Officials 1, 2, and 3: discussing the Florida events

Later the indictment describes a database of 100 real US persons whom the trolls treated as recruiting targets, complete with profiling.

On or about August 24, 2016, Defendants and their co-conspirators updated an internal ORGANIZATION list of over 100 real U.S. persons contacted through ORGANIZATION-controlled false U.S. persona accounts and tracked to monitor recruitment efforts and requests. The list included contact information for the U.S. persons, a summary of their political views, and activities they had been asked to perform by Defendants and their co-conspirators.

Here’s the important thing about all this. While Pinedo pled guilty and faces 12-18 months even with his cooperation agreement (and even there, while the information makes it clear he knew he was dealing with foreigners, his lawyer has made it clear he didn’t know who or what he was dealing with), there are only two other known illegal roles in this conspiracy, and there’s no reason those roles would have had to be carried out by Americans. Perhaps Mueller has others cooperating, perhaps those other criminals are unknown. But as for the rest, they are (as Rosenstein made clear) not guilty of any kind of conspiracy with Russia.

DOJ just rolled out an indictment in which probably 20 Americans can recognize themselves (many of whom were likely interviewed), about as many as all the Trump officials named in one or another plea agreement so far. Yet, as far as Mueller knows, none of these people did anything but conduct business or engage in sincerely held politics. They almost certainly had far less reason to be suspicious of the trolls they were being used by than Facebook and Twitter. Those actions have been tainted now through no fault of their own.

Which is something to remember: I’ve seen Hillary supporters, in the same breath, criticize Bernie or Jill Stein supporters because their preferred candidate was treated favorably by the trolls, yet in the same breath suggesting the black and Muslim activists targeted are innocent victims.

Obviously, Hillary and her supporters are victims. But everyone is, even the Trump volunteers. Because to the extent they had honestly held beliefs, the Russian operation tainted those beliefs, it diminished the weight of their honestly held beliefs. They were used by Russian trolls, most of them without the same profit motive that led Facebook and Twitter to allow themselves to be used. And we should remember that.

Hinting at what the US has

There are, however, a few tactical things this indictment does, starting with hinting at what other evidence the US has. This indictment was relatively easy, in that Adrian Chen (in a June 2015 article that still gets too little attention), Facebook and (to a lesser extent) other social media outlets, the Daily Beast, and SSCI generally have already laid out what IRA did. The indictment slaps some criminal charges on fraudulent behavior that enabled it, and without showing much about any additional evidence Mueller collected, you’ve got a showy indictment.

There are two hints, however, of the additional evidence used (which, given that the named conspirators will never face trial, will never need to be disclosed or explained). First, in a passage about how IRA started to cover their tracks after Mueller started focusing on this activity, there’s the reference to Irina Kaverzina.

On or about September 13, 2017, KAVERZINA wrote in an email to a family member: “We had a slight crisis here at work: the FBI busted our activity (not a joke). So, I got preoccupied with covering tracks together with the colleagues.”

Kaverzina was just a low-level troll and this may be nothing more than Section 702 collected email off GMail or Yahoo, or it may be a more formal intercept. But Mueller obtained communications from at least one of the indictees. Emails from more senior people, such as Prigozhin or his more senior managers (or the IT guys buying server space in the US) would be more interesting.

Plus, Mueller likely obtained cooperation from one IRA employee, the unnamed person who traveled to Atlanta in November 2014 for reconnaissance. Had that person not cooperated, he or she would have been named in the indictment.

Nevertheless establishing the political stakes

I said above that none of the hundred-plus Americans who were unknowingly used by trolls should be considered anything but victims. Their chosen political views, loathsome or not, have now been tainted, and not because of anything they’ve done except perhaps show too much trust or credulity.

But there are hints that Mueller is using this indictment to set up a more important point.

For example, the indictment (perhaps because of Mueller’s mandate) focuses on political activities supporting or opposing one or another 2016 candidate. Even where topics (immigration, Muslim religion, race) are not necessarily tied to the election, they’re presented here as such. Unless Facebook’s public reports are wrong, this is a very different emphasis than what Facebook has said the IRA focused on. Which is to say that Mueller’s team are focusing on a subset of the known IRA trolling, the subset that involves the 2016 contest between Trump and Hillary.

And there are several events, in particular, that may one day serve as details in a larger conspiracy. Most interesting, for the timing and location, are the twin anti-Hillary and pro-Trump events in NYC in June and July 2016.

In or around June and July 2016, Defendants and their co-conspirators used the Facebook group “Being Patriotic,” the Twitter account @March_for_Trump, and other ORGANIZATION accounts to organize two political rallies in New York. The first rally was called “March for Trump” and held on June 25, 2016. The second rally was called “Down with Hillary” and held on July 23, 2016.

a. In or around June through July 2016, Defendants and their co-conspirators purchased advertisements on Facebook to promote the “March for Trump” and “Down with Hillary” rallies.

b. Defendants and their co-conspirators used false U.S. personas to send individualized messages to real U.S. persons to request that they participate in and help organize the rally. To assist their efforts, Defendants and their co-conspirators, through false U.S. personas, offered money to certain U.S. persons to cover rally expenses.

c. On or about June 5, 2016, Defendants and their co-conspirators, while posing as a U.S. grassroots activist, used the account @March_for_Trump to contact a volunteer for the Trump Campaign in New York. The volunteer agreed to provide signs for the “March for Trump” rally.

[snip]

On or about July 23, 2016, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send out press releases to over thirty media outlets promoting the “Down With Hillary” rally at Trump Tower in New York City.

The description of a IRA-organized event at Trump Tower the day after WikiLeaks dropped the DNC emails, in particular, suggests the possibility of a great deal of coordination, coordination with people in the US.

Similarly, the extended descriptions of events in Florida may also take on added relevance in the future, particularly coming as they did in tandem with Guccifer 2.0’s release of DCCC data targeting FL. (And this, in turn, should focus even more attention on the FL congressmen like Matt Gaetz and Ron DeSantis who’re leading the pushback on Mueller’s investigation.)

Using the term “co-conspirator” 119 times

Perhaps most interesting, given the tiny nods to what other intelligence Mueller might have, are the 119 uses of the word “co-conspirators.” Almost all of these uses seem to necessarily mean unnamed IRA employees working from the same St. Petersburg location described as trolling. Several times the co-conspirators are clearly described as located in Russia. So it may be that all references to co-conspirators here are just a way to refer to the 70 other people involved in this operation at IRA. But that’s not necessarily the case.

Other uses of “co-conspirator” involve wider knowledge, perhaps an outsider’s knowledge of a go-between role Prigozhin might have had.

But others are things that might have involved a stateside co-conspirator, such as the mention of co-conspirators helping to set up the May 29, 2016 Prigozhin birthday tribute in front of the White House, co-conspirators tracking US social media use, co-conspirators engaged in identity theft, co-conspirators promoting claims of voter fraud, co-conspirators destroying data. Several of those things (such as tracking US social media use or claiming Hillary was going to steal the election) are things we know Trump associates were also doing. Others might be facilitated by someone stateside. So those uses of the term could be people not employed by IRA.

Which is to say, this indictment might be (probably is) intended to address just the activities of those employed by IRA. But that’s not necessarily the case.

Update: added the public indictment part.

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.

On the Grassley-Feinstein Dispute

In a podcast with Preet Bharara this week, Sheldon Whitehouse had the following exchange about whether he thought Carter Page should have been surveilled. (after 24:30)

Whitehouse: I’ve got to be a little bit careful because I’m one of the few Senators who have been given access to the underlying material.

Bharara: Meaning the affidavit in support of the FISA application.

Whitehouse And related documents, yes. The package.

Bharara: And you’ve gone to read them?

Whitehouse: I’ve gone to read them.

Bharara: You didn’t send Trey Gowdy?

Whitehouse: [Laughs] I did not send Trey Gowdy. I actually went through them. And, so I’ve got to be careful because some of this is still classified. But the conclusion that I’ve reached is that there was abundant evidence outside of the Steele dossier that would have provoked any responsible FBI with a counterintelligence concern to look at whether Carter Page was an undisclosed foreign agent. And to this day the FBI continues to assert that he was a undisclosed Russian foreign agent.

For the following discussion, then, keep in mind that a very sober former US Attorney has read the case against Carter Page and says that the FBI still — still, after Page is as far as we know no longer under a FISA order — asserts he “was” an undisclosed foreign agent (it’s not clear what that past tense “was” is doing, as it could mean he was a foreign agent until the attention on him got too intense or remains one; also, I believe John Ratcliffe, a Republican on the House Judiciary Committee and also a former US Attorney, has read the application too).

With that background, I’d like to turn to the substance of the dispute between Chuck Grassley and Dianne Feinstein over the dossier, which has played out in the form of a referral of Christopher Steele to FBI for lying. In the wake of the Nunes memo theatrics, Grassley released first a heavily redacted version of the referral he and Lindsey Graham sent the FBI in early January, followed by a less-redacted version this week. The referral, even as a transparent political stunt, is nevertheless more substantive than Devin Nunes’ memo, leading some to take it more seriously.  Which may be why Feinstein released a rebuttal this week.

In case you’re wondering, I’m tracking footnote escalation in these documents. They line up this way:

  • 0: Nunes memo (0 footnotes over 4 pages, or 1 over 6 if you count Don McGahn’s cover letter)
  • 2.6: Grassley referral (26 footnotes over 10 pages)
  • 3.6: Schiff memo (36 footnotes, per HPSCI transcript, over 10 pages)
  • 5.4: Feinstein rebuttal (27 footnotes over 5 pages)

So let me answer a series of questions about the memo as a way of arguing that, while by all means the FBI’s use of consultants might bear more scrutiny, this is still a side-show.

Did Christopher Steele lie?

The Grassely-Graham referral says Steele may have lied, but doesn’t commit to whether classified documents obtained by the Senate Judiciary Committee (presumably including the first two Page applications), a declaration Steele submitted in a British lawsuit, or Steele’s statements to the FBI include lies.

The FBI has since provided the Committee access to classified documents relevant to the FBI’s relationship with Mr. Steele and whether the FBI relied on his dossier work. As explained in greater detail below, when information in those classified documents is evaluated in light of sworn statements by Mr. Steele in British litigation, it appears that either Mr. Steele lied to the FBI or the British court, or that the classified documents reviewed by the Committee contain materially false statements.

On September 3, 2017 — a good three months before the Grassley-Graham referral — I pointed to a number of things in the Steele declaration, specifically pertaining to who got the dossier or heard about it when, that I deemed “improbable.”

That was the genius of the joint (!!) Russian-Republican campaign of lawfare against the dossier. As Steele and BuzzFeed and Fusion tried to avoid liability for false claims against Webzilla and Alfa Bank and their owners, they were backed into corners where they had to admit that Democrats funded the dossier and made claims that might crumble as Congress scrutinized the dossier.

So, yeah, I think it quite possible that Steele told some stretchers.

Did Christopher Steele lie to the FBI?

But that only matters if he lied to the FBI (and not really even there). The UK is not about to extradite one of its former spies because of lies told in the UK — they’re not even going to extradite alleged hacker Lauri Love, because we’re a barbaric country. And I assume the Brits give their spooks even more leeway to fib a little to courts than the US does.

The most critical passage of the referral on this point, which appears to make a claim about whether Steele told the FBI he had shared information with the press before they first used his dossier in a Page application, looks like this.

The footnote in the middle of that redacted passage goes to an unredacted footnote that says,

The FBI has failed to provide the Committee the 1023s documenting all of Mr. Steele’s statements to the FBI, so the Committee is relying on the accuracy of the FBI’s representation to the FISC regarding the statements.

1023s are Confidential Human Source reports.

I say that’s the most important passage because the referral goes on to admit that in subsequent FISA applications the FBI explained that the relationship with Steele had been terminated because of his obvious involvement in the October 31, 2016 David Corn story. Graham and Grassley complain that the FBI didn’t use Steele’s defiance of the FBI request not to share this information with anyone besides the FBI to downgrade his credibility rankings. Apparently FISC was less concerned about that than Graham and Grassley, which may say more about standards for informants in FISA applications than Steele or Carter Page.

The footnote, though, is the biggest tell. That’s because Feinstein’s rebuttal makes it quite clear that after Grassley and Graham made their referral, SJC received documents — which, given what we know has been given to HPSCI, surely include those 1023s — that would alter the claims made in the referral.

The Department of Justice has provided documents regarding its interactions with Mr. Steele to the Judiciary Committee both before and after the criminal referral was made. Despite this, the Majority did not modify the criminal referral and pressed forward with its original claims, which do not take into account the additional information provided after the initial January 4 referral.

Feinstein then goes on to state, several times and underlining almost everything for emphasis, that the referral provides no proof that Steele was ever asked if he had served as the source for Isikoff.

  • Importantly, the criminal referral fails to identify when, if ever, Mr. Steele was asked about and provided a materially false statement about his press contacts.
  • Tellingly, it also fails to explain any circumstances which would have required Mr. Steele to seek the FBI’s permission to speak to the press or to disclose if he had done so.

[snip]

But the criminal referral provides no evidence that Steele was ever asked about the Isikoff article, or if asked that he lied.

In other words, between the redacted claim about what Steele said and Feinstein’s repeated claims that the referral presents no evidence Steele was asked about his prior contacts with the press, the evidence seems to suggest that Steele was probably not asked. And once he was, after the Corn article, he clearly did admit to the FBI he had spoken with the press. So while it appears Steele blew off the FBI’s warnings not to leak to the press, the evidence that he lied to the FBI appears far weaker.

Does it harm the viability of the FISA application?

That should end the analysis, because the ostensible purpose of the referral is a criminal referral, not to make an argument about the FISA process.

But let’s assess the memo’s efforts to discredit the FISA application.

In two places, the referral suggests the dossier played a bigger role in the FISA application than, for example, Whitehouse suggests.

Indeed, the documents we have reviewed show that the FBI took important investigative steps largely based on Mr. Steele’s information–and relying heavily on his credibility.

[snip]

Mr. Steele’s information formed a significant portion of the FBI’s warrant application, and the FISA application relied more heavily on Steele’s credibility than on any independent verification or corroboration for his claims. Thus the basis for the warrant authorizing surveillance on a U.S. citizen rests largely on Mr. Steele’s credibility.

These claims would be more convincing, however, if they acknowledged that FBI had to have obtained valuable foreign intelligence off their Page wiretap over the course of the year they had him wiretapped to get three more applications approved.

Indeed, had Grassley and Graham commented on the addition of new information in each application, their more justifiable complaint that the FBI did not alert FISC to the UK filings in which Steele admitted more contact with the press than (they claim) show up in the applications would be more compelling. If you’re going to bitch about newly learned information not showing up in subsequent applications, then admit that newly acquired information showed up.

Likewise, I’m very sympathetic with the substance of the Grassley-Graham complaint that Steele’s discussions with the press made it more likely that disinformation got inserted into the dossier (see my most recently post on that topic), but I think the Grassley-Graham complaint undermines itself in several ways.

Simply put, the more people who contemporaneously knew that Mr. Steele was compiling his dossier, the more likely it was vulnerable to manipulation. In fact, the British litigation, which involves a post-election dossier memorandum, Mr. Steele admitted that he received and included in it unsolicited–and unverified–allegations. That filing implies that implies that he similar received unsolicited intelligence on these matters prior to the election as well, stating that Mr. Steele “continued to receive unsolicited intelligence on the matters covered by the pre-election memoranda after the US Presidential election.” [my underline]

The passage is followed by an entirely redacted paragraph that likely talks about disinformation.

This is actually an important claim, not just because it raises the possibility that Page might be unfairly surveilled as part of a Russian effort to distract attention from others (though its use in a secret application wouldn’t have sown the discord it has had it not leaked), but also because we can check whether their claims hold up against the Steele declaration. It’s one place we can check the referral to see whether their arguments accurately reflect the underlying evidence.

Importantly, to support a claim the potential for disinformation in the Steele dossier show up in the form of unsolicited information earlier than they otherwise substantiate, they claim a statement in Steele’s earlier declaration pertains to pre-election memos. Here’s what it looks like in that declaration:

That is, Steele didn’t say he was getting unsolicited information prior to the election; this was, in both declarations, a reference to the single December report.

Moreover, while I absolutely agree that the last report is the most likely to be disinformation, the referral is actually not clear whether that December 13 report ever actually got included in a FISA application. There’s no reason it would have been. While the last report mentions Page, the mention is only a referral back to earlier claims that Trump’s camp was trying to clean up after reports of Page’s involvement with the Russians got made public. So the risk that the December memorandum consisted partially or wholly of disinformation is likely utterly irrelevant to the validity of the three later FISA orders targeting Page.

Which is to say that, while I think worries about disinformation are real (particularly given their reference to Rinat Akhmetshin allegedly learning about the dossier during the summer, which I wrote about here), the case Grassley and Graham make on that point both miscites Steele’s own declaration and overstates the impact of their argued case on a Page application.

What about the Michael Isikoff reference?

Perhaps the most interesting detail in the Grassley-Graham referral pertains to their obsession with the applications’ references to the September 23 Michael Isikoff article based off Steele’s early discussions with the press. Grassley-Graham claim there’s no information corroborating the dossier (there’s a redacted Comey quote that likely says something similar). In that context, they point to the reference to Isikoff without explaining what it was doing there.

The application appears to contain no additional information corroborating the dossier allegations against Mr. Page, although it does cite to a news article that appears to be sourced to Mr. Steele’s dossier as well.

Elsewhere, I’ve seen people suggest the reference to Isikoff may have justified the need for secrecy or something, rater than as corroboration. But neither the referral nor Feinstein’s rebuttal explains what the reference is doing.

In this passage, Grassley and Graham not only focus on Isikoff, but they ascribe certain motives to the way FBI referred to it, suggesting the claim that they did not believe Steele was a source for Isikoff was an attempt to “shield Mr. Steele’s credibility.”

There’s absolutely no reason the FBI would have seen the need to shield Steele’s credibility in October. He was credible. More troubling is that the FBI said much the same thing in January.

In the January reapplication, the FBI stated in a footnote that, “it did not believe that Steele gave information to Yahoo News that ‘published the September 23 News Article.”

Let’s do some math.

If I’m doing my math correctly, if the FISA reapplications happened at a regular 90 day interval, they’d look like this.

That’d be consistent with what the Nunes memo said about who signed what, and would fit the firing dates of January 30 for Yates and May 9 for Comey, as well as the start date for Rosenstein of April 26 (Chris Wray started on August 1).

If that’s right, then Isikoff wrote his second article on the Steele dossier, one that made it clear via a link his earlier piece had been based off Steele, before the second application was submitted (though the application would have been finished and submitted in preliminary form a week earlier, meaning FBI would have had to note the Isikoff piece immediately to get it into the application, but the topic of the Isikoff piece — that Steele was an FBI asset — might have attracted their attention).

But that’s probably not right because the Grassley-Graham referral describes a June, not July, reapplication, meaning the application would have been no later than the last week of June. That makes the reauthorization dates look more like this, distributing the extra days roughly proportionately:

That would put the second footnote claiming the FBI had no reason to believe the September Isikoff piece was based on Steele before the time when the second Isikoff piece made it clear.

I’m doing this for a second reason, however. It’s possible (particularly given Whitehouse’s comments) Carter Page remains under surveillance, but for some reason it’s no longer contentious.

That might be the case if the reapplications no longer rely on the dossier.

And I’m interested in that timing because, on September 9, I made what was implicit clear: That pointing to the September Isikoff piece to claim the Steele dossier had been corroborated was self-referential. I’m not positive I was the first, but by that point, the Isikoff thing would have been made explicit.

Does this matter at all to the Mueller inquiry?

Ultimately, though, particularly given the Nunes memo confirmation that the counterintelligence investigation into Trump’s people all stems from the George Papadopoulos tip, and not Page (particularly given the evidence that the FBI was very conservative in their investigation of him) there’s not enough in even the Grassley-Graham referral to raise questions about the Mueller investigation, especially given a point I made out in the Politico last week.

According to a mid-January status report in the case against Manafort and his deputy, Rick Gates, the government has turned over “more than 590,000 items” to his defense team, “including (but not limited to) financial records, records from vendors identified in the indictment, email communications involving the defendants, and corporate records.” He and Gates have received imaged copies of 87 laptops, phones and thumb drives, and copies off 19 search-warrant applications. He has not received, however, a FISA notice, which the government would be required to provide if they planned to use anything acquired using evidence obtained using the reported FISA warrant against Manafort. That’s evidence of just how much of a distraction Manafort’s strategy [of using the Steele dossier to discredit the Mueller investigation] is, of turning the dossier into a surrogate for the far more substantive case against him and others.

And it’s not just Manafort. Not a single thing in the George Papadopoulos and Michael Flynn guilty pleas—for lying to the FBI—stems from any recognizable mention in the dossier, either. Even if the Steele dossier were a poisoned fruit, rather than the kind of routine oppo research that Republicans themselves had pushed to the FBI to support investigations, Mueller has planted an entirely new tree blooming with incriminating details.

Thus the point of my graphic above. The Steele dossier evidence used in the Carter Page FISA application to support an investigation into Cater Page, no matter what else it says about the FISA application process or FBI candor, is just a small corner of the investigation into Trump’s people.

 

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.

[Photo: Emily Morter via Unsplash]

Ruin a Movie with a Name: Get Carter (Page)

[Get Carter by MGM c. 1971]

[NB: As always, check the byline before reading. ~Rayne]

After all the Nunes memo hubbub and the impending Democratic counterpart, erstwhile Trump campaign adviser Carter Page looks sketchier than ever after TIME reported this past Saturday that Page characterized himself as an “informal advisor to the Kremlin” back in 2013.

The FBI warned Page that same year that he was being recruited by spies; Page blew them off. During the following year the FBI obtained a FISA warrant on Page.

Page thought the FBI had retaliated against him — he knew his blow-off was pretty arrogant — but as much as he asked for trouble by saying they should focus on the Boston bombing, then as now, the body of his actions asked for more scrutiny.

Let’s take a step or two back and take a look at the bigger picture surrounding Page; the timeline here is a work in process and will be updated.


2010 — In New York City, Russian spies Igor Sporyshev, Victor Podobnyy, and Evgeny Buryakov began work on several economics-related objectives on behalf of Russia’s SVR ‘Directorate ER’; their efforts started shortly after guilty pleas by members of Russian ‘Illegals’ spy ring and their expulsion.

14 DEC 2012 — Bipartisan Magnitsky Act (Pub.L. 112–208) passed and signed into law.

XX JAN 2013Carter Page met Podobnyy in New York City at an Asia Society meeting where the topic was China and Chinese energy development. (specific date TBD).

2013 — Podobnyy and Sporyshev attempted to recruit Page. Special agents with the FBI’s New York Field Office Counterintelligence Division surveilled and investigated spies and Page.

XX JUN 2013 — FBI interviewed Page about his contacts with Russians and cautioned him he was being recruited (specific date TBD).

25 AUG 2013 — In a letter this date sent to an academic press, Page refers to himself as “an informal advisor to the staff of the Kremlin.”

13 APR 2013 — In response to the Magnitsky Act, Russian lawmakers banned 18 Americans from entering Russian Federation, including Preet Bharara, a judge and 12 other DOJ/DEA personnel from the Southern District of New York. Russia also barred adoptions of Russian children by U.S. citizens.

2014 — FBI obtains a FISA warrant to monitor Page‘s communications (specific date TBD).

26 JAN 2015 — Russian spy Buryakov arrested; he had non-official cover as an employee of Vnesheconombank. Igor Sporyshev and Victor Podobnyy had already left the country; both had diplomatic immunity. Case was under U.S. Attorney Preet Bharara’s office for Southern District of New York. Page‘s identity was masked and appeared in the complaint against the spies as “MALE-1.” (See Buryakov, et al complaint (pdf))

DEC 2015 — George Papadopoulos began work for Ben Carson’s presidential campaign as a foreign policy advisor.

Late 2015 — New York’s GOP chair Ed Cox was in contact with Page. It is not clear from Page‘s testimony how this contact occurred; Page uses the word volunteered more than once.

JAN 2016 — Page had at least one meeting with campaign officials based on his contact with Ed Cox; in his HPSCI testimony he said he met Corey Lewandowski. Page was an unpaid adviser. Unclear from testimony if Sam Clovis had Page sign an NDA now or later in the campaign, before the July trip to Moscow.

FEB 2016 — Papadopoulos left Carson’s campaign.

Early MAR 2016 — Sam Clovis recruited Papadopoulos to work for Trump’s campaign as a foreign policy advisor.

06 MAR 2016 — Clovis relayed to Papadopoulos that “a principal foreign policy focus of the campaign was an improved U.S. relationship with Russia,” according to court records related to Papadopoulos’ eventual indictment. Clovis later denied saying this.

14-21 MAR 2016 — Prof. Joseph Mifsud met twice with Papadopoulos; Mifsud brought to the second meeting “Olga” who posed as Putin’s niece.

XX MAR 2016 — Page had breakfast in “March-ish” timeframe with Sam Clovis in Falls Church, VA to discuss NDA and “general foreign policy topics.”

21 MAR 2016Page joined Trump campaign as one of five foreign policy advisors, including George Papadopoulos.

MAR-APR 2016 — Dialog continued between Papadopoulos, Mifsud, Olga Vinogradova (referred to as Olga Poloskaya in some earlier reports). [link, link]

24 MAR 2016 — Papadopoulos sends an email copying campaign foreign policy advisers and Sam Clovis, offering to set up “a meeting between us and the Russian leadership to discuss US-Russia ties under President Trump.”

28 MAR 2016 — Article: Donald Trump Hires Paul Manafort to Lead Delegate Effort

26 APR 2016 — Papadopoulos learned the Russians had “dirt” on Hillary Clinton consisting of “thousands of emails.”

05 MAY 2016 — Trump is the presumptive GOP presidential nominee. Page emailed fellow foreign policy adviser Walid Phares and J.D. Gordon, asking them to contact him via cell phone or iMessage, adding “P.S. I forgot to mention that I also have the Middle East staple of [redacted]* as well. So that’s another global connectivity alternative if you want to get in touch there.” (* Believed to be the name of a regionalized communications system. See testimony transcript (pdf).)

16 MAY 2016Page sent an email to Walid Phares and J.D. Gordon, suggesting that Trump visit Russia  (see testimony transcript (pdf)).

24 MAY 2016Page emailed J.D. Gordon: “FYI: At the Newark Sky Club, Delta has a private room when you can have a confidential conversation, but, unfortunately, no such luck at Third-World LaGuardia. So I’ll mostly be on the receive mode, since there are a significant number of people in the lounge. Rather than saying too much, I’ll just refer to the seven points on my list which I sent last night.” (see testimony transcript (pdf)).

26 MAY 2016 — Page emailed J.D. Gordon and another foreign policy team member, Bernadette Kilroy, letting them know he will be speaking at the New Economic School’s commencement alongside Russia’s Sberbank’s chair and CEO  (see testimony transcript (pdf)).

27 MAY 2016Page may have met Paul Manafort associate Rick Gates at Trump’s North Dakota speech event (see testimony transcript (pdf)).

Early JUN 2016Page called Putin “stronger and more reliable than President Obama” and “touted the positive effect a Trump presidency would have on U.S.-Russia relations” according to attendees of a meeting of campaign foreign policy team members with India’s Prime Minister Modi. Modi’s trip was five days long, beginning June 8.

09 JUN 2016 — Trump Tower meeting between Donald Trump Jr. and Natalia Veselnitskaya et al., ostensibly about Russian adoptions.

XX JUN 2016 — After back-and-forth and an initial refusal with Corey Lewandowski, J.D. Gordon, and Hope Hicks, Page finally  obtains approval from Lewandowski to travel to Russia as a campaign team member (specific date TBD). In HPSCI testimony there is an exchange about an email he sent asking for feedback about the speech he was going to give in Moscow; same email mentions Russia’s Minister of Economics and Trade Herman Gref was expected to speak at the same event.

30 JUN 2016 — On the Thursday before his Moscow trip Page attended a dinner meeting at the Capitol Hill Club in DC at which both Sen. Jeff Sessions and George Papadopoulos were present and seated next to each other. Page testified to HPSCI this is the last time he saw Papadopoulos, and that he (Page) wasn’t going to Russia as part of the campaign team.

05 JUL 2016Page‘s trip to Russia. (05-09 JUL 2016; in his HPSCI testimony he said he left Sunday night, which would have been July 3.)

06 JUL 2016 — In his HPSCI testimony Page admits to meeting Rosneft’s Directer of Investor Relations Andrey Baranov at a Morgan Stanley-hosted Europa football event as well as [redacted] Nagovitsyn* of Gazprom; he also admitted to having a 10-second exchange with Russia’s Deputy Prime Minister Arkady Dvorkovich as well as meeting members of the Duma. (* This may be Oleg Nagovitsyn who in 2014 had been CEO of Gazprom Investproekt, a subsidiary entity; Nagovitsyn has been elevated to General Director of Gazprom if this is the same Oleg.)

07 JUL 2016Page gave a speech at New Economic School; his speech is critical of U.S. foreign policy. He testified that the school paid for his expenses. (video)

08 JUL 2016Page attended and gave commencement speech at New Economic School graduation.  (videoPage avoided answering journalists’ questions both days regarding officials Page may have/will meet with in Russia. Page emailed campaign advisers Tera Dahl and J.D. Gordon, telling them he would send them “a readout soon regarding some incredible insights and outreach I’ve received from a few Russian legislators and senior members of the Presidential administration here.”

14 JUL 2016 — Page praises fellow foreign policy advisers and campaign team members J.D. Gordon, Walid Phares, Joseph Schmitz, Bert Mizusawa, Chuck Kubic, and Tera Dahl for their work changing the GOP platform on Ukraine.

18-21 JUL 2016Page spoke with Russian Ambassador Sergey Kisylak during the Global Partners in Diplomacy event  associated with the RNC Convention in Cleveland (specific date TBD).

19 JUL 2016 — Former MI6 intelligence officer Christopher Steele wrote a memo about Page‘s July trip to Moscow. Steele’s intelligence said Page met with Rosneft’s Igor Sechin and Russian Internal Affairs minister Igor Diveykin.

U.S. received intelligence that Page met with Igor Sechin, Putin associate, former Russian deputy prime minister, and executive chairman of Rosneft, but it isn’t clear whether this intelligence is based on Steele’s dossier alone and/or if disinformation involved.

After 22 JUL 2016 — Australia’s Ambassador to the U.S. Joe Hockey disclosed to the FBI that diplomat Alexander Downer learned from George Papadopoulos the Trump campaign had “dirt” on HRC in the form of emails.

XX JUL 2016Page had dinner alone with Sam Clovis some time after the July trip to Moscow.

05 AUG 2016 — Article: Trump adviser’s public comments, ties to Moscow stir unease in both parties; includes a profile of Page. Hope Hicks characterized Page as “informal policy adviser.”

19 AUG 2016 — Paul Manafort resigns from the campaign two days after Trump’s first security briefing. Steve Bannon assumes Manafort’s role for the campaign.

26 AUG 2016 — Sen. Harry Reid sent a letter to FBI Director James Comey asking for the investigation of Russian hacking and influence on the 2016 election with publication of findings. Reid cited the example of an unnamed Trump adviser “who has been highly critical of U.S. and European economic sanctions on Russia, and who has conflicts of interest due to investments in Russian energy conglomerate Gazprom, met with high-ranking sanctioned individuals while in Moscow in July 2016…” (link)

XX AUG 2016 — Page said he sold his ADR shares in Gazprom this month, approximately five months after joining the campaign; it’s not clear whether this sale happened before or after Sen. Reid’s letter (see written testimony (pdf)).

XX AUG 2016 — Page traveled to Hungary and met with the ambassador to the US; the ambassador had already met Page at the RNC convention. They discussed U.S.-Russia policy as it affected Hungary — “in general,” according to Page‘s testimony.

23 SEP 2016 — Article: U.S. intel officials probe ties between Trump adviser and Kremlin.

25 SEP 2016Page wrote to Comey and asked him to end the investigation into his trip to Russia (see written testimony).

26 SEP 2016Page left Trump campaign.

Mid to Late SEP 2016 — After discussing the matter with Fusion GPS’ Glenn Simpson, Christopher Steele metwith the FBI in Rome to share what he had learned about the Trump campaign and related Russian efforts. Steele was concerned there was a crime in progress; some of his research shared included information about Page‘s interactions with key Russians during his July trip.

21 OCT 2016 — FISA warrant on Page obtained.

24-OCT-2016 — Page did an interview with Russian media outlet RT on its Going Underground program. Program host and Page characterized Page‘s status as “on leave” from the campaign. Page‘s written testimony shared that Wikileaks and leaked emails “tangentially came up.” (video, uploaded to YouTube on 29-OCT-2016.)

08 NOV 2016 — Election Day.

08 DEC 2016 — Page took another trip to Russia; Arkady Dvorkovich stopped by a dinner Page attended and said hello according to Page‘s testimony (specific date TBD). Page also met Shlomo Weber again; he had lunch with Andrey Baranov, a bank analyst with Bank of America/Merrill Lynch, and a third person whose names were redacted at Page‘s request. He had a laptop with him at the lunch which he said he used to share his speech and slides for another academic presentation. The Kremlin’s spokesperson, Dmitri Peskov, said there were no plans to contact Page yet managed to see Page just before a television interview.

XX DEC 2016 — On the return leg to the U.S., Page stopped in London to attend an energy conference. While in London he met with a Russian national, Sergey Yatsenko, in London on return from Moscow; they talked about opportunities in Kazahkstan related to the country’s privatization process and the sovereign wealth fund, Samruk Kazyna. They were joined by the Kazahk ambassador to the U.K. and an aide.

10 JAN 2017 — BuzzFeed published 35 pages of the dossier Steele prepared for Orbis under contract to Fusion GPS.

Mid JAN 2017 — Jones Day LLP, White House counsel Don McGahn’s former law firm, communicated with Page, instructing him not to depict himself as a representative of the campaign. Steve Bannon conveyed a similar message by text to Page.

XX JAN 2017 — In an interview with ABC News, Page said he didn’t meet with any Russian officials on behalf of Trump campaign or with Igor Sechin (specific date not clear in ABC’s report).

18 JAN 2017 — Deadline, FISA renewal required (before inauguration).

19 JAN 2017 — Article: Intercepted Russian Communications Part of Inquiry Into Trump Associates; Page along with Paul Manafort and Roger Stone have become subjects of an investigation.

20 JAN 2017 — Inauguration Day.

31 JAN 2017 — Trump nominated Maryland’s U.S. Attorney Rod Rosenstein as Deputy Attorney General.

31 JAN 2017 — Page told ABC News’ Brian Ross he never talked to anyone in the Kremlin about the campaign during his July trip, “not one word.”

15 FEB 2017 — Interview: Former Trump adviser says he had no Russian meetings in the last year

JUDY WOODRUFF:
Did you have any meetings — I will ask again — did you have any meetings last year with Russian officials in Russia, outside Russia, anywhere?

CARTER PAGE:
I had no meetings, no meetings.

I might have said hello to a few people as they were walking by me at my graduation — the graduation speech that I gave in July, but no meetings.

02 MAR 2017 — Interview: Page: ‘I don’t deny’ meeting with Russian amb.; Page admitted meeting Russia’s Ambassador Kislyak during the campaign.

04 MAR 2017 — Corey Lewandowski told Fox News, “I never met Carter Page.”

11 MAR 2017 — Preet Bharara fired by USAG Jeff Sessions.

11 MAR 2017Page sent a letter to the HPSCI asking to be interviewed in a public hearing. His letter coincided with letters from Paul Manafort and Roger Stone who both volunteered to be interviewed.

03 APR 2017 — ABC News and BuzzFeed contacted Page about his role as MALE-1 in Buryakov et al spy ring case ((see written testimony (pdf))

13 APR 2017Page told ABC News’ George Stephanopoulos that he “said hello briefly to one individual, who was aboard member of the New Economic School where I gave my speech” during his July 2016 to Moscow. He also hedged as to whether he had any discussion of sanctions while in Russia.

05 APR 2017 — Evgeny Buryakov was released from prison on March 31 and expelled from the U.S. days later; he had been credited with time served while in custody against his 2.5 year sentence. His deportation shortened his sentence by a couple of months.

~19 APR 2017 — Deadline, FISA renewal required (specific date TBD).

25 APR 2017 — Rod Rosenstein confirmed by Senate as Deputy Attorney General.

28 APR 2017 — Senate Intelligence Committee sent a letter to Page along with Mike Flynn, Paul Manafort, and Roger Stone asking for records related to the campaign, including a “list of all meetings between you and any Russian official or representative of Russian business interests which took place between June 16, 2015, and Jan. 20, 2017.”

05 MAY 2017 — Senate Intelligence Committee chair and vice chair sent a joint statement to Page to insist on his cooperation with their investigation.

09 MAY 2017 — FBI Director James Comey fired.

21 MAY 2017—Page requested appealed to the DOJ, FBI, NSA for disclosure of “information, applications and other materials related to my illegitimate FISA warrant” (see written testimony (pdf)).

~18 JUL 2017 — Deadline, FISA renewal required (specific date TBD).

04 OCT 2017 — HPSCI issued a subpoena to Page.

10 OCT 2017Page informed the Senate Intelligence Committee he would plead the Fifth Amendment and not testify in front of the SIC.

30 OCT 2017 — Excerpt from interview with MSNBC’s Chris Hayes suggests Page expected House Speaker Paul Ryan to release the FISA warrant documentation (video, about 06:57):

HAYES: Did you bring an attorney to you when you spent five hours before the Senate?

PAGE: Nope. Nope. I’m very, very open and happy to give all the information I can. In the interest of really getting the truth out there, because I think when the truth comes out, when Speaker Paul Ryan says the FISA warrant or the details about the dodgy dossier and what happened and all this documents around that is going to be released, that’s what I’m really excited about. And I think the truth will set a lot of people free.

02 NOV 2017 — In testimony submitted to the House Permanent Select Committee on Intelligence, Page said he briefly met Russian Deputy Prime Minister Arkady Dvorkovich during his July trip. Page pleaded the Fifth Amendment on some of the materials responsive to the HPSCI’s subpoena.

14 NOV 2017 — Jeff Sessions testified before the House Judiciary Committee; he said he did not remember seeing Page at the June 30, 2016 dinner with campaign team members, nor did he recall any communications about Page‘s trip to Moscow.


Again, this is not a complete timeline of Trump-Russia events, let alone a complete timeline of everything Carter Page. It captures some key points from just before the FBI became aware of Carter Page through the release of the Nunes’ memo Friday last week.

From a comprehensive meta level, the push operation to release the Nunes memo — driven in part with help from Russian bots promoting #ReleaseTheMemo, complementing Page’s request for the FISA warrant documentation — looks less like an effort to remove Robert Mueller as special counsel or Rod Rosenstein as U.S. Deputy AG.

As others have suggested, Page looks like an expendable mule and/or a decoy — a perfect fit for a perfect useful idiot.

The entire picture reflects a more comprehensive effort to attack the USDOJ apart from Jeff Sessions, and to undermine or obscure the opposition research process which included the Steele dossier.

And it looks more like Devin Nunes aided Putin’s continued attack against the U.S.’ Magnitsky Act, attempting to undermine law enforcement charged with executing this public law.

For all the concern that Page and other campaign team members might have talked about the sanctions with Russia, the Magnitsky Act is lost in the media buzz.

There are quite a few oddities about Page which should cause the average Joe to take pause. Why did Page join the campaign in March 2016 when Trump wasn’t the presumptive nominee until the first week of May after the Indiana primary? Did he just show up at the campaign’s doorstep via Ed Cox on his own or was he recruited/encouraged? Why wasn’t Page vetted more thoroughly by the campaign?

And why when he joined the campaign was he not expected to have already eliminated any conflicts of interest like his Gazprom ADRs? The financial conflict made Page an easily compromised mark even though both campaign and administration didn’t and don’t give a fig about ethics. It’s not clear how Page earns his keep; he testified he was living off his savings. Did he sell his ADRs only because he was low on cash? In other words, was he at risk for financial compromise?

(An aside: with Page’s relationships to Russian oil and gas community members, did Page buy or sell his ADRs on what might have been insider information? He didn’t do well if he sold in August 2016 but it’s not clear when and at what price he bought the ADRs to begin with.)

How did a guy with such thin credentials — he was awarded his doctorate in 2012 after his thesis was twice rejected — end up speaking not just once at the New Economic School but twice, giving the commencement speech? Not to mention his flaky personal style spies Podobnyy and Sporyshev noted years earlier. What was in his speeches that students, faculty, and distinguished guests alike needed to hear? Did someone at the New Economic School ‘review’ an electronic or hardcopy version of the speeches in advance? This is a question the HPSCI attempted to ask but didn’t receive a clear answer. Did a member of Russia’s government ‘review’ the speeches?

Why was there such a lag between Page’s trip to Russia and the FISA warrant given Page’s history?

Some pieces in this puzzle hint at other possible connections. Recall that Rosenstein — who has been involved in the FISA warrants since Comey was fired — was the US Attorney for Maryland. Pioneer Point, one of Russia’s compounds confiscated December 29, 2016 under sanctions related to hacking the DNC, is located on the water in Maryland.

Maryland was also home to a Manafort-related business SCG raided on May 11 last year. Has Rosenstein been kept preoccupied so that he would not be involved in anything related to either Pioneer Point or SCG? Who (if anyone) was nominated to replace Rosenstein in Maryland? Has the pressure on Rosenstein been two-fold — not just to discourage another extension of the FISA warrant on Page, but to keep him from looking too closely in what was once his backyard?

Key events from George Papadopoulos’ tenure with the campaign were included in the timeline for comparison between two foreign policy advisers working for the same campaign. What marching orders did these two receive from Clovis or other senior campaign team members? They’re off doing their own things but both generating trouble at the same time. Page’s open activities drew media attention; Papadopoulos’ efforts were not as visible to the public. Was this intentional? Why did the campaign need not one but two foreign policy advisers with fossil fuel-based energy backgrounds mingling with Russians? Were they both proof-of-concepts establishing back channel communications, testing approaches to see which would be more successful? Were there any other attempts at back channels via campaign team members?

And while we’ve been focused on these two advisers, at least three others continued their work for the campaign and possibly into the transition. What were they doing?

It’s worth reading the HPSCI transcript of Page’s oral and written testimony. He’s a lousy writer; his work borders on irrational. His oral responses during the HPSCI hearing are as bad if not worse. Of particular concern is his repetitive use of certain arguments and phrases which have been use at times by online provocateurs.

Other persons and issues aside, consider this particular excerpt in a report published about a month before the FBI obtained a FISA warrant on Page:

Page came to the attention of officials at the U.S. Embassy in Moscow several years ago when he showed up in the Russian capital during several business trips and made provocative public comments critical of U.S. policy and sympathetic to Putin. “He was pretty much a brazen apologist for anything Moscow did,” said one U.S. official who served in Russia at the time.

How could the FBI not have requested a FISA warrant given what we the public already knew about Carter Page once he left for Moscow last July?

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

Carter Page Did Not Need to be a Spy to be Targeted Under FISA

The NYT has a story that explains something I was wondering about over the weekend: how the Nunes memo could be used — as it reportedly is being used — to justify a Trump bid to fire Rod Rosenstein. Shortly after he was confirmed, NYT reveals, Rosenstein approved the renewal application for the FISA order targeting Carter Page.

A secret, highly contentious Republican memo reveals that Deputy Attorney General Rod J. Rosenstein approved an application to extend surveillance of a former Trump campaign associate shortly after taking office last spring, according to three people familiar with it.

[snip]

[I]n their efforts to discredit the inquiry, Republicans could potentially use Mr. Rosenstein’s decision to approve the renewal to suggest that he failed to properly vet a highly sensitive application for a warrant to spy on Mr. Page, who served as a Trump foreign policy adviser until September 2016.

The news is interesting for several reasons. First, it provides more granularity for the timing of the surveillance targeted at Page.

American law enforcement officials began conducting surveillance on him in the fall of 2016, shortly after he left the campaign. It is unclear what they learned about Mr. Page between then and when they sought the order’s renewal roughly six months later. It is also unknown whether the surveillance court granted the extension.

The renewal effort came in the late spring, sometime after the Senate confirmed Mr. Rosenstein as the Justice Department’s No. 2 official in late April. Around that time, following Mr. Trump’s firing of James B. Comey as F.B.I. director in May, Mr. Rosenstein appointed Mr. Mueller, a former head of the bureau, to take over the department’s Russia investigation.

Rosenstein was sworn in on April 26. He appointed Mueller on May 17. If we take that window as the timeframe for the reapplication date, it would date the prior authorization (orders targeting US persons last 90 days) to roughly January 26 through February 17, and the fall one to October 26 to November 17 time frame. The later you get in that initial time period, the closer you get to the time when Page would have been planning a follow-up visit to Russia in December.

Glenn Simpson describes Christopher Steele’s second meeting with the FBI, in Rome, about his dossier as occurring sometime in September. So there was perhaps a month between the time Steele provided information on Page and the time the FBI obtained the new order targeting Page.

On top of what the NYT says about Democratic complaints about this memo, there are other reasons to believe this is bogus. Even on 702 — but especially on FISA — the retasking process requires the government to show it obtained new information during the prior surveillance period, meaning the application Rosenstein signed would have been the second to do so.

Plus, there’s one more point.

To be targeted FBI had to provide proof that Page was an agent of a foreign power.

The renewal shows that the Justice Department under President Trump saw reason to believe that the associate, Carter Page, was acting as a Russian agent.

[snip]

To obtain the warrant involving Mr. Page, the government needed to show probable cause that he was acting as an agent of Russia.

But that does not actually entail proving that he, himself, is spying on the US. An American may be targeted as an agent of a foreign power if he knowingly aids or abets someone involved in clandestine intelligence gathering that may involve a violation of criminal statutes.

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;

[snip]

(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

That’s the standard that — given that Page had been warned by FBI in 2013 that he was being recruited — might be fairly easily within reach for Page. I suspect we’ll eventually learn (after whatever brouhaha ensues) that FBI claimed Page was either aiding or abetting Russian spies, or conspiring with them, not that he was a spy himself. But that’s a distinction that may be lost on Republicans trying to politicize this.

There’s one more thing (one I don’t expect applies here but is worth pointing out in any case). The government can target any facility an agent of a foreign power uses, whether or not the agent owns it.

(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power

This is how the government got to do a scan of all Yahoo’s users, because the targeted foreign power was using Yahoo mail, generally, and the specific signature searched on identified the people as targets.

Two more points. Trey Gowdy reviewed the underlying intelligence to the memo  that is now being used to target Rosenstein, he’s telling colleagues to stop pressuring Mueller in part because Mueller is pursuing a counterintelligence component (precisely the kind of thing targeted with FISA!) that will explain what really happened in 2016.

Gowdy said there are “two components” to the purview of Mueller’s investigation.

“There is a criminal component. But there’s also a counterintelligence component that no one ever talks about because it’s not sexy and interesting. But he’s also going to tell us definitively what Russia tried to do in 2016,” Gowdy said. “So the last time you and I were together, I told my Republican colleagues, leave him the hell alone, and that’s still my advice.”

Gowdy is one of about six members of Congress who has seen the most sensitive materials in Mueller’s case. It’s really bizarre that he’s saying the GOP needs to back off Mueller because of his CI focus when they’re likely misunderstanding how FISA is used in CI.

Finally, remember that nothing that Mueller is known to have done is identifiably fruit from this Carter Page order. Even with Manafort — who was also reportedly targeted in a FISA order — Mueller has not given FISA notice to suggest he’s relying on anything derived from FISA (though such notice is always suspect).

So even if he dossier is dodgy, it may be that Mueller is pursuing his case such that he avoids any taint from it.

Update: I keep forgetting, but something that happened with Carter Page may well have been abusive, but it’s not what the Republicans are (as far as the public reporting goes) focusing on. It’s a sign that they’re dummies who don’t understand what they purportedly oversee that they haven’t figured this out. I’m not going to lay it out here — because those leading this hoax just reauthorized the practice in any case — but I have written it up elsewhere.

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.

With the Corey Lewandowski Interview, Devin Nunes Confirms He’s No More Than Trump’s Mole

In the wake of Michael Wolff’s publication of Steve Bannon’s insistence that Donald Trump met with the attendees at the June 9, 2016 Trump Tower meeting, we got word that Bannon — who claims never to have interviewed with Robert Mueller’s team — has hired the same lawyer representing Reince Priebus and Don McGahn for an interview this week with the House Intelligence Committee.

Two sources tell us Burck is helping Bannon prepare for an interview with the House intelligence committee, which is currently scheduled for next week. Sources also said Bannon plans to “fully cooperate” with investigators.

Burck also represents White House Counsel Don McGahn and former Chief of Staff Reince Priebus for the purposes of the Russia probe, as Law360 reported last September.

It is not unheard of for one attorney to represent more than one client on the same matter. But the fact that several key players with Trump administration ties have the same lawyer could irk investigators.

Then, yesterday, news broke that Corey Lewandowski will interview with HPSCI this week. He, too, claims he has never interviewed with Mueller’s team.

Former Trump campaign manager Corey Lewandowski says that he has yet to be contacted by Special Counsel Robert Mueller as part of the ongoing Russia investigation.

Lewandowski, who was interviewed by WABC’s Rita Cosby on Sunday, also confirmed reports that he will be interviewed on either Wednesday or Thursday by the House Intelligence Committee as part of its Russia probe.

“I have nothing to hide. I didn’t collude or cooperate or coordinate with any Russian, Russian agency, Russian government or anybody else, to try and impact this election,” Lewandowski says he plans to tell the House panel.

Daily Caller is right — it’s odd that Mueller hasn’t interviewed Lewandowski, given that he had these critically timed interactions with George Papadopoulos.

April 27: Papadopoulos to Corey Lewandowski

“to discuss Russia’s interest in hosting Mr. Trump. Have been receiving a lot of calls over the last month about Putin wanting to host him and the team when the time is right.”

April 27: Papadopoulos authored speech that he tells Timofeev is “the signal to meet”

[snip]

May 4, Papadopoulos to Lewandowski (forwarding Timofeev email):

“What do you think? Is this something we want to move forward with?”

May 14, Papadopoulos to Lewandowski:

“Russian govemment[] ha[s] also relayed to me that they are interested in hostingMr. Trump.”

[snip]

June 19: Papadopoulos to Lewandowski

“New message from Russia”: “The Russian ministry of foreign affairs messaged and said that if Mr. Trump is unable to make it to Russia, if campaign rep (me or someone else) can make it for meetings? I am willing to make the trip off the record if it’s in the interest of Mr. Trump and the campaign to meet specific people.”

The decision to call two key Trump people whom Mueller hasn’t met happens in the wake of events that haven’t gotten sufficient attention. On January 3, Rod Rosenstein and Christopher Wray met with Paul Ryan to request that he limit the documents Nunes had requested from FBI. Ryan backed Nunes, which led Rosenstein and Wray to agree to show a bunch of highly sensitive documents to HPSCI investigators, as well as agree to interviews with the FBI and DOJ people who had either touched the Steele dossier or been witnesses to Jim Comey’s claims that Trump demanded loyalty from him.

At Wednesday’s meeting — initiated at Rosenstein’s request — Rosenstein and Wray tried to gauge where they stood with the House speaker in light of the looming potential contempt of Congress showdown and Nunes’ outstanding subpoena demands, sources said. CNN is told the discussion did not involve details of the separate Russia investigation being led by special counsel Robert Mueller.

While Ryan had already been in contact with Rosenstein for months about the dispute over documents, Rosenstein and Wray wanted to make one last effort to persuade him to support their position. The documents in dispute were mostly FBI investigative documents that are considered law enforcement sensitive and are rarely released or shared outside the bureau.

During the meeting, however, it became clear that Ryan wasn’t moved and the officials wouldn’t have his support if they proceeded to resist Nunes’ remaining highly classified requests, according to multiple sources with knowledge of the meeting.

Sources also told CNN that the Justice Department and the FBI also had learned recently that the White House wasn’t going to assert executive privilege or otherwise intervene to try to stop Nunes.

The focus on all the reporting has been on the dossier; indeed, one of CNN’s sources says Mueller’s investigation didn’t come up. It’s not clear that makes sense, given the implication that Trump might claim executive privilege over something being discussed, unless the privilege claim pertained to the two-page summary of the dossier given to him and Obama.

Moreover, the letter memorializing what Nunes forced Rosenstein and Wray to give up suggests the discussion involved all “investigative documents that relate to the Committee’s investigations into (a) Russian involvement in the 2016 Presidential election,” as well as its efforts to find evidence of politicization at DOJ.

As agreed, designated Committee investigators and staff will be provided access to all remaining investigative documents, in unredacted form, for review at DOJ on Friday, January 5, 2018. The documents to be reviewed will include all FBI Form-1023s and all remaining FBI Form FD-302s responsive to the Committee’s August 24, 2017 subpoenas. The only agreed-upon exception pertains to a single FD-302, which, due to national security interests, will be shown separately by Director Wray to myself and my senior investigators during the week of January 8, 2018.

You further confirmed that there are no other extant investigative documents that relate to the Committee’s investigations into (a) Russian involvement in the 2016 Presidential election or (b) other investigatory documents germane to the Committee’s investigations regardless of form and/or title. If, somehow, “new” or “other” responsive documents are discovered, as discussed, you will notify me immediately and allow my senior investigators to review them shortly thereafter.

[snip]

It was further agreed that all documents made available to the Committee will also be available for review by the minority Ranking Member and designated staff.

If that’s right — if the document requests pertain to both the Steele dossier and the Mueller investigation, then on January 5, HPSCI would have been able to determine everyone who had been interviewed and what they had said (which is a good way to ensure that witnesses not cooperate with Mueller). And last week, Nunes, would have been able to review a 302 (the forms FBI uses to report their interviews with witnesses) that, for some reason, was even more sensitive than the FISA orders and confidential human source reports they had reviewed the previous Friday. From his language, it’s not clear whether Adam Schiff would have been included in that review.

Last Wednesday, Wray and Rosenstein gave briefings to Adam Schiff, reportedly by himself, and Richard Burr and Mark Warner together. If Schiff wasn’t included in the review of that 302, then that may explain what the briefing pertained to.

Just last month, Nunes was digging in and refusing to let Democrats call obvious witnesses. So the news that HPSCI will interview two key Trump people with whom Mueller has not yet met makes it clear — if it wasn’t already — that Nunes is trying to identify everything that Mueller might learn, so that he can then give Trump a clean bill of health and insist the entire investigation was just a political stunt drummed up from the Steele dossier (which is what Paul Manafort seems to have recommended last year).

And as all these machinations have gone on, Trump has vacillated about whether or not he’ll submit to an interview with Mueller. Perhaps Nunes has told him that the one thing that might make Mueller’s case is either a confirmation or denial from the President whether he knew or attended that June 9 meeting?

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.

Stephen Miller Claims that Trump’s Russian Investigation Line Was a Disclaimer

In this post, I noted that Trump (in his interview with the WSJ) appears to believe asking for and getting a letter from Rod Rosenstein justifying Jim Comey’s firing is proof that his firing of Comey wasn’t obstruction of justice. I suggested that that argument may have been planned from the start — and noted the proximity of that argument to the claim, which we know Jared Kushner provided, that Democrats would be thrilled by Comey’s firing.

Having suggested that there was more of a plan behind the orchestrated firing of Comey than we might imagine, I want to return to the Jake Tapper interview with Stephen Miller on Sunday.

Tapper asked Miller about his role in writing the initial draft of the letter that fired Comey, which NYT reported on this way:

Mr. McGahn successfully blocked the president from sending the letter — which Mr. Trump had composed with Stephen Miller, one of the president’s top political advisers — to Mr. Comey. But a copy was given to the deputy attorney general, Rod J. Rosenstein, who then drafted his own letter. Mr. Rosenstein’s letter was ultimately used as the Trump administration’s public rationale for Mr. Comey’s firing, which was that Mr. Comey had mishandled the investigation into Hillary Clinton’s private email server.

Mr. Rosenstein is overseeing Mr. Mueller’s investigation into Russian efforts to disrupt last year’s presidential election, as well as whether Mr. Trump obstructed justice.

Mr. McGahn’s concerns about Mr. Trump’s letter show how much he realized that the president’s rationale for firing Mr. Comey might not hold up to scrutiny, and how he and other administration officials sought to build a more defensible public case for his ouster.

[snip]

Mr. Trump ordered Mr. Miller to draft a letter, and dictated his unfettered thoughts. Several people who saw Mr. Miller’s multi-page draft described it as a “screed.”

Mr. Trump was back in Washington on Monday, May 8, when copies of the letter were handed out in the Oval Office to senior officials, including Mr. McGahn and Vice President Mike Pence. Mr. Trump announced that he had decided to fire Mr. Comey, and read aloud from Mr. Miller’s memo.

Some present at the meeting, including Mr. McGahn, were alarmed that the president had decided to fire the F.B.I. director after consulting only Ms. Trump, Mr. Kushner and Mr. Miller. Mr. McGahn began an effort to stop the letter or at least pare it back.

[snip]

Rosenstein was given a copy of the original letter and agreed to write a separate memo for Mr. Trump about why Mr. Comey should be fired.

In the interview with Tapper, Miller claimed that the key claim the NYT said got removed — about Comey thrice telling Trump he wasn’t personally under investigation — was actually in the final letter.

Tapper: According to the New York Times, Special Counsel Robert Mueller has, in his possession, an early draft of a letter that you helped write, in May 2017, detailing reasons to fire FBI Director James Comey. According to the newspaper, the first line of the letter mentions the Russia investigation. Did you write a letter outlining the reasons to fire Comey and list the Russia investigation. Is that true?

Miller: Here’s the problem with what you’re saying: the final draft of the letter the one that was made —

Tapper: I’m not talking about that one, I’m talking about the one that Comey [sic] has that mentions Russia —

Miller: If you want to have an answer to your question and not to get hysterical, then I’ll answer it. The final draft of the letter has the same line about the fact that there is a Trump-Russia investigation that this has nothing to do with.

Tapper: So it was just moved from the top to the bottom.

Miller: No. No! Look at the letter. It’s at the beginning. The investigation is referenced at the beginning of the final letter that was released to point out about the fact that notwithstanding, having been informed that there’s no investigation, that the um, the move that is happening is completely unrelated to that. So it was a disclaimer. It appeared in the final version of the letter that was made public.

Here’s the letter Trump sent to fire Comey. The passage Miller must be talking about reads,

While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.

That’s the passage that was so confounding when we all read that in real time.

And while I’m not prepared to believe Miller that that is the totality of the reference to Russia in the original letter — after all, this doesn’t even mention Russia — what I do think Miller provided proof for on national TV is that the connotation of that sentence changed from first to second draft, and in a way that he, Kushner, and Don McGahn all surely recognize.

In the first letter, according to McGahn and others, the “screed” listed the Russia investigation as a reason to fire Comey. Here, according to the guy who drafted it, it is meant to serve as a disclaimer, a denial that this firing was about the Russia investigation.

And that’s what Miller surely told Mueller’s investigators.

No wonder he kept ranting and had to be escorted off Tapper’s set. He just revealed, for everyone, how this second letter was designed to be misleading.

In the last week, Miller and Trump have told CNN and WSJ, respectively, about their cover-up.

Update: I forgot to reference this language from the NYT’s latest. The line originally said that the investigation was“fabricated and politically motivated.” If that reporting is correct then they also changed the wording of the reference to the investigation.

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.

Trump’s Obstruction Defense: Rod Rosenstein Wrote a Letter

The WSJ has posted a transcript of their interview with Trump.

I think it shows how he plans (and may have planned, from the start) to defend against obstruction charges: by noting that Rod Rosenstein, in his letter supporting Comey’s firing, said stronger things against Comey than Trump did.

He returned to this idea three times in the interview. First, after WSJ first noted that Mueller may be looking at obstruction charges.

TRUMP: There has never been, in the history — in the history of an administration anybody that was more open than we were. You understand that?

WSJ: Yes.

TRUMP: We gave them everything. We didn’t go to court and say, “You can’t have this document, you can’t have” — and what we gave them showed — I never got a phone call from Russia. I didn’t have a tweet. I didn’t have a — I had nothing. I didn’t have an email. I didn’t have a meeting. I didn’t have — did I have one meeting with — about Russia? And…

WSJ: Well, Mueller’s also looking at some other areas, right? Like obstruction of justice…

TRUMP: Well allow — let me — (inaudible). So, they make up a crime, and the crime doesn’t exist. And then they say obstruction. And how could there be obstruction on firing Comey? When the man who’s in charge of it wrote a letter that was far stronger than anything I would have written. He was in charge — Deputy Rosenstein. He wrote a letter that’s far stronger than even what I say.

Again, after ranting a bit about how badly the Democrats once wanted Comey fired.

All you have to do is take a look, seriously – take a look at all these people, they all wanted him fired. And the FBI was a mess. When he announced the Hillary Clinton fiasco where she was guilty, guilty, guilty, guilty and then where they did the interview with no tape recorder, with no swearing in, with no this, with no that – you know the story.

But take a look at all of these people that became critics of my firing (ph), they all wanted him fired. And they wanted him fired until I said, “he’s fired.” But the deputy, Rosenstein, who is in charge, he wrote a letter that was possibly or probably stronger than anything I would have written or did write.

Then he returns to it just as WSJ tries to get him to shift to talking about infrastructure.

WSJ: (Inaudible) infrastructure (inaudible).

TRUMP: But just so you understand…

WSJ: Oh, sorry.

TRUMP: …The Deputy Attorney General, who’s in charge of the case, wanted – all you have to do is read his letter. So that’s – there’s no obstruction there.

But Rosenstein!!! He seems to be saying.

I’m interested in this, in general. But I’m also interested in how closely tied the notion that Democrats would celebrate a Comey firing is with the claim that because Rosenstein said meaner things about Comey, there couldn’t be obstruction.

I wonder whether this was the plan all along. And I wonder whether these two whackjob ideas came from the same person: Jared.

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.

Did The Most Senior White House Official Lie to the NYT about the Content of the Comey Firing Letter?

One week after conducting a “surprise” interview set up by Trump ally Christopher Ruddy (for which he was widely criticized), Mike Schmidt has a widely hailed story describing the evidence supporting an obstruction charges against Donald Trump.

Or maybe against Attorney General Jeff Sessions.

Most interestingly, it suggests that several days after Trump attacked Jeff Sessions while watching Jim Comey’s May 3 testimony to Congress, Sessions sent an aide to Congress to try to gin up a series of damning stories about Comey.

White House aides gave updates to Mr. Trump throughout, informing him of Mr. Comey’s refusal to publicly clear him. Mr. Trump unloaded on Mr. Sessions, who was at the White House that day. He criticized him for recusing himself from the Russia investigation, questioned his loyalty, and said he wanted to get rid of Mr. Comey.

[snip]

Two days after Mr. Comey’s testimony, an aide to Mr. Sessions approached a Capitol Hill staff member asking whether the staffer had any derogatory information about the F.B.I. director. The attorney general wanted one negative article a day in the news media about Mr. Comey, according to a person with knowledge of the meeting.

A Justice Department spokeswoman said the incident did not occur. “This did not happen and would not happen,” said the spokeswoman, Sarah Isgur Flores. “Plain and simple.”

Hmmm. I don’t think Sessions has honored his recusal.

He may have also ordered up Rod Rosenstein to suggest Comey needed firing.

Earlier that day, Rod J. Rosenstein, the deputy attorney general, had pulled one of Mr. McGahn’s deputies aside after a meeting at the Justice Department. Mr. Rosenstein told the aide that top White House and Justice Department lawyers needed to discuss Mr. Comey’s future. It is unclear whether this conversation was related to the effort to dig up dirt on Mr. Comey.

The following weekend, Trump went to Bedminster to have Stephen Miller write up a letter firing Comey. It’s this detail I’m most interested in.

In interviews with The Times, White House officials have said the letter contained no references to Russia or the F.B.I.’s investigation. According to two people who have read it, however, the letter’s first sentence said the Russia investigation had been “fabricated and politically motivated.” [my emphasis]

Remember, Schmidt has just had a rather celebrated interview with one particular White House official. Er, The White House Official. Half of the off-the-record comments omitted from the NYT transcript of the interview clearly pertain to the Russian investigation.

TRUMP: Everybody knows the answer already. There was no collusion. None whatsoever.

_________

TRUMP: Maybe I’ll just say a little bit of a [inaudible]. I’ve always found Paul Manafort to be a very nice man. And I found him to be an honorable person. Paul only worked for me for a few months. Paul worked for Ronald Reagan. His firm worked for John McCain, worked for Bob Dole, worked for many Republicans for far longer than he worked for me. And you’re talking about what Paul was many years ago before I ever heard of him. He worked for me for — what was it, three and a half months?

[snip]

TRUMP: What I’ve done is, I have absolute right to do what I want to do with the Justice Department. But for purposes of hopefully thinking I’m going to be treated fairly, I’ve stayed uninvolved with this particular matter.

_________

TRUMP: For purposes of the Justice Department, I watched Alan Dershowitz the other day, who by the way, says I, says this is a ridiculous —

SCHMIDT: He’s been very good to you.

TRUMP: He’s been amazing. And he’s a liberal Democrat. I don’t know him. He’s a liberal Democrat. I watched Alan Dershowitz the other day, he said, No. 1, there is no collusion, No. 2, collusion is not a crime, but even if it was a crime, there was no collusion. And he said that very strongly. He said there was no collusion. And he has studied this thing very closely. I’ve seen him a number of times. There is no collusion, and even if there was, it’s not a crime. But there’s no collusion. I don’t even say [inaudible]. I don’t even go that far.

_________

TRUMP: So for the purposes of what’s going on with this phony Russian deal, which, by the way, you’ve heard me say it, is only an excuse for losing an election that they should have won, because it’s very hard for a Republican to win the Electoral College. O.K.?

This last break in the transcript picks up right where the information these White House officials lying to the NYT leave off: with the claim that this is a “fabricated and politically motivated” investigation.

Particularly given that Schmidt has been working this aspect of the story for months, what are the chances that the most senior White House official lied to Schmidt about what he had written to justify firing Jim Comey?

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Except I worry about something else.

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

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

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

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

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

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.

Manafort’s Lawyers Will Challenge the Legitimacy of Prosecuting the Ukrainian Money Laundering

Over the weekend, I did a Twitter thread on the fun stuff in the latest filing from Paul Manafort’s lawyers asking (among other things) that he be let off his GPS monitor. Now that others are reviewing the filing, I’m seeing lots of people miss a key part of what his lawyers are doing.

As I noted, in a footnote, Manafort’s lawyers point out that the crimes he has been charged with all pre-date the election.

Of note, his work on behalf of the Ukrainian clients ended around two years before Mr. Manafort agreed to work as the campaign manager for then-candidate Donald Trump.

It’s a point they’ve made before. But it has been misunderstood as a bogus point.

It’s not. Here’s how the defense has said they’re going to defend against this indictment.

At this time, the defense anticipates that pretrial motions will be filed concerning the legal basis for and sufficiency of the charges, the suppression of evidence improperly obtained by search warrant, subpoena or otherwise (including the application of exceptions to common law privileges), as well as motions in limine based on discovery to be provided by the Government in preparation for trial.

To some degree, this is part of a challenge the defense will make to the charging of FARA crimes generally. As they rightly point out, that simply hasn’t gotten prosecuted.

The Government’s case also concerns whether Mr. Manafort was required to file a report as a foreign agent with the U.S. Department of Justice. The U.S. Department of Justice has only brought six criminal FARA prosecutions since 1966 and it has secured only one conviction during this period. It is far from clear what activity triggers a requirement to file a report as a foreign agent. In order to conceal this weakness in the Indictment, a façade of money laundering has been put forth using a tenuous legal theory. When the money laundering count is peeled back from the Indictment, the forecasted sentencing guidelines are reduced substantially to a fraction of those claimed by the Office of Special Counsel.

What they’re ignoring is that the FARA charges are tied to both the money laundering they want to dismiss (Weekly Standard quotes people saying “it doesn’t make sense” to have spent $1M on rugs in Alexandria) and to false statements charges that (as DOJ keeps pointing out) have already been validated in the process of getting Manafort’s lawyer to waive privilege to explain how she was lied to.

But it also suggests they’re going to go after not only the no-knock warrant from this summer (which obtained information proving that Manafort and Gates keep records longer than the six months they have claimed to DOJ in the past), but also other subpoenas and the legal basis for the changes. That is, it suggests they’re going to challenge Mueller’s authority for investigating these old crimes which, public reporting made clear, long preceded the authorization of the Special Counsel. The legitimacy of the new evidence collection and charges depends on the legitimacy of the exercise of the Special Counsel authority, which is in turn based on,

(i) any links and/or coordination bet ween the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation;

(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

The entire point of noting that the crimes charged here predate the election is to lay the groundwork for legal challenges. Manafort’s lawyers are laying groundwork to claim that these charges 1) don’t pertain to coordination on the election and 2) can’t say to have arisen out of them, because they predated them. Again, that ignores that the 28 CFR §600.4(a) permits Mueller to investigate, “intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses,” which Manafort’s false statements about the FARA registration might certainly be construed as.

Now, to be clear, I don’t think such a challenge will succeed (in part because of those false statements charges, which are dated to November 23, 2016 and February 10, 2017; the conspiracy to defraud the US also continues through 2017 and in part because Acting Attorney General Rod Rosenstein approved the charges). I also think this Politico piece, which talks about such legal threats, overstates the legal danger of such a challenge (in part because it cites all number of Republican lawyers, including Trump lawyer Jay Sekulow, who are being teed up to bitch about the legitimacy publicly).

But I do think it’s a legitimate tactic, one that will serve Manafort’s defense, even outside the world of the Sukulow spin.

First, the charges as laid out are designed to steer clear of the election related stuff so Mueller can get Manafort to flip and testify on those without laying out what he already knows. They’re also designed to parallel similar charges in NY that can be charged if Trump pardons Manafort. By challenging the legitimacy of the tie between the Ukraine consulting and the election, Manafort may force Mueller to show more of his hand, notably to include why he believes the lies Manafort told last November and in February are part of the election cover-up (I can easily imagine how Mueller would explain it, but imagine he doesn’t want to do so, yet). Alternately, to substantiate the ties, Mueller may choose to issue a superseding indictment, tying the Ukraine work more closely to the election stuff, but I suspect he doesn’t want to do that, yet.

Also, to the extent that the challenge gets litigated now rather than on appeal (when it will definitely get litigated, if this goes to trial), Manafort may test the guidelines for something the President very much wants to test: whether Mueller can prosecute old business corruption (that in the case of both men happens to implicate compromise by the Russians). Manafort will be taking logical steps for his own defense, but also doing the work of the man who ultimately holds Manafort’s ticket to freedom.

Finally, there is the entire point of propaganda. So long as Trump can claim that nothing substantial has been charged against his campaign, both by noting (as he has, repeatedly) that Manafort’s charges are unrelated to the election and George Papadopoulos is some random coffee boy, Republicans and Trump supporters will have more space to support him. Once that changes — and the moment that changes will be one of the most fraught legal moments in this case — things may get a lot harder for Trump.

But for now, Manafort is helping the PR case along, and will continue to to the extent that his lawyers continue to argue that the crimes ended well before the campaign.

Update: As Josh Gerstein notes in his story on the government’s latest filing, Manafort and the government are actually disputing how long his work in Ukraine lasted:

The parties do dispute one minor factual point: Manafort claims that his work in the Ukraine ended in 2014, ECF#32 at 3, while the indictment alleges his continued work through 2015 on behalf of the Opposition Bloc, after the flight to Russia of President Victor Yanukovych. Indictment ¶ 1.

I have a feeling that discrepancy could end up less minor than suggested.

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.