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Trump Should Get No FBI Director Pick

Yesterday, Mike Lee trolled Democrats by suggesting that Merrick Garland, who has a lifetime seat on the DC Circuit, should vacate that and lead the FBI. In a piece explaining how utterly moronic the many Democrats who took his bait are, Dave Weigel explains this is “Why Liberals Lose” — not just because they never press for advantage effectively, but because they so often fall prey when Republicans do.

We live in a golden age of political stupidity, but I’m not being hyperbolic when I say this: The idea of pulling Judge Merrick Garland off the D.C. Circuit federal appeals court and into the FBI is one of the silliest ideas I’ve seen anyone in Washington fall for. It’s like Wile E. Coyote putting down a nest made of dynamite and writing “NOT A TRAP” on a whiteboard next to it. It’s also an incredibly telling chapter in the book that’s been written since the Republican National Convention — the story of how Republicans who are uncomfortable with the Trump presidency gritting their teeth as they use it to lock in control of the courts.

You should definitely read all of Weigel’s piece, which is spot on.

But there are other aspects that the success of Lee’s ploy explain about Why Liberals Lose. First and foremost, it shows how mindlessly Democrats adopt the playing field that Republicans deal them.

I mean, even as Democrats have been pushing for months to use the Russian scandal to impeach Trump, and even at the moment where that actually seems feasible (down the road), most Democrats simply accepted the necessity of replacing Jim Comey and have shifted instead to fighting the worst names being floated, people like Trey Gowdy (an initial trial balloon) and Alice Fisher and Michael Garcia, who’re reportedly being formally considered.

Why are Democrats even accepting that Trump should get to replace Comey?

According to CNBC’s count from mid-April, Trump had filled just 24 of the 554 Senate confirmed positions in government.

Sure, Trump has filled a handful more in the interim month, but Trump is otherwise not in a rush to staff the government. Yet he has immediately turned to replacing Comey.

There is nothing more illegitimate than for Trump to be able to give someone a ten year term as FBI Director because he fired Jim Comey.

Trump is no longer hiding the fact that he fired Comey to try to undercut the Russian investigation. And the timeline is clear: the dinner to which Trump called Comey to twice demand his loyalty took place on January 27.

As they ate, the president and Mr. Comey made small talk about the election and the crowd sizes at Mr. Trump’s rallies. The president then turned the conversation to whether Mr. Comey would pledge his loyalty to him.

Mr. Comey declined to make that pledge. Instead, Mr. Comey has recounted to others, he told Mr. Trump that he would always be honest with him, but that he was not “reliable” in the conventional political sense.

[snip]

By Mr. Comey’s account, his answer to Mr. Trump’s initial question apparently did not satisfy the president, the associates said. Later in the dinner, Mr. Trump again said to Mr. Comey that he needed his loyalty.

Mr. Comey again replied that he would give him “honesty” and did not pledge his loyalty, according to the account of the conversation.

That means it took place the same day of Sally Yates’ second conversation with Don McGahn about FBI’s investigation into Mike Flynn (and by association, I always point out, Jared Kushner).

It was always a pipe dream for Democrats to think they could stave off Neil Gorsuch’s confirmation, in part because you really do need a full panel at SCOTUS.

But for the moment, the FBI will continue to run the same way the rest of government is running: with the acting officials who’re filling in until Trump gets around to filling the spot. Moreover, Andrew McCabe, the Acting FBI Director, is a Comey loyalist who will ensure his initiatives will continue for whatever portion of Comey’s remaining 6 years he gets to serve.

This is important not just for the Russian investigation — it’s important to the future of our democracy. Alice Fisher, for example, would be an even more insanely pro-corporate FBI Director than Comey (former Board Member of HSBC, remember) or Mueller.

Democrats should be out there, loudly and in unison, decrying how inappropriate it would be for Trump to get to replace Comey when everyone watching knows the firing was one of the most corrupt things a President has done in a century.

Instead, they’re falling prey to Mike Lee’s obvious ploys.

James Clapper: Unmasking And/Or Jeff Sessions?

I’m traveling so I’ll have to lay out my thoughts about the Comey firing later.

But for the moment I want to point to a detail in Monday’s hearing that deserves more attention now.

Early in the hearing, Chuck Grassley asked both Sally Yates and James Clapper if they have ever unmasked a Trump associate or member of Congress. Yates said no, but Clapper revealed he had unmasked someone, but couldn’t say more.

GRASSLEY: OK. I want to discuss unmasking.

Mr. Clapper and Ms. Yates, did either of you ever request the unmasking of Mr. Trump, his associates or any member of Congress?

CLAPPER: Yes, in one case I did that I can specifically recall, but I can’t discuss it any further than that.

GRASSLEY: You can’t, so if I ask you for details, you said you can’t discuss that, is that what you said?

CLAPPER: Not — not here.

Grassley returned to the issue for clarification later on. Clapper said he had asked to have the identity of both a member of Congress and a Trump associate unmasked. But then he said he had only asked on one occasion.

GRASSLEY: Mr. Clapper, you said yes when I asked you if you ever unmasked a Trump associate or a member of Congress. But I forgot to ask, which was it? Was it a Trump associate, a member of Congress, or both?

CLAPPER: Over my time as DNI, I think the answer was on rare occasion, both. And, again, Senator, just to make the point here, my focus was on the foreign target and at the foreign target’s behavior in relation to the U.S. person.

GRASSLEY: OK. How many instances were there, or was there just one?

CLAPPER: I can only recall one.

Finally, Lindsey Graham returned to the issue at the close of the hearing. Clapper confirmed he had made a request to unmask a Trump associate and a member of Congress.

You made a request for unmasking on a Trump associate and maybe a member of Congress? Is that right, Mr. Clapper?

CLAPPER: Yes.

Obviously, there’s plenty of room for confusion in these exchanges, and Clapper has a history of sowing confusion in Congressional testimony.

But if it is true that he has only unmasked one person but that he has unmasked both a Trump associate and a member of Congress, it would suggest he unmasked the identity of a member of Congress who is a Trump associate.

If that’s right, there are several possibilities for who it could be: transition official Devin Nunes, national security advisor Richard Burr, and national security official Jeff Sessions.

But the most likely is Sessions, because we know he was talking to Sergey Kislyak and the intelligence community has pulled their collection on Kislyak.

Even if that’s the case, it’s unsurprising Sessions’ communications with Kislyak have been reviewed and unmasked.

Still, it is a data point from Monday’s hearing that makes Sessions’ role in the firing of Jim Comey worth noting.

The Curious Timing of Flynn Events and EO 13769

The crew here has been seasonally busy; there are graduations, returns from college, business and vacation travel, many other demands keeping us away from the keyboard. Bear with us.

That’s not to say we’re not stewing about — well, everything. EVERYTHING. Pick a subject and it’s probably on fire if it’s not smoldering. Touch it and it may burst into flame, kind of like James Comey’s job.

Yesterday’s Senate Judiciary Committee hearing with testimony from Sally Yates and James Clapper is one such topic utterly ablaze. How to even start with what went wrong — like Ted ‘Zodiac Killer’ Cruz and his sidling up to ‘But her emails!’. Or John Kennedy’s [string a bunch of expletives together and insert here] questions which did nothing to further any investigation.

I’m glad Sally Yates laid one across Cruz on the Immigration and Nationality Act of 1965 (INA); he deserved it for his particularly egregious mansplaining.

As you can see from their tweets, I know my fellow contributors have much they wish they could post about the hearing. I know after the closing gavel I had many more questions, not fewer.

Like timing. Timing seemed so inter-related on seemingly disparate issues.

What about the timing of Yates’ discussion with White House Counsel Don McGahn about Lt. Gen. Michael Flynn (ret.) and the timing of the Muslim travel ban, Executive Order 13769?

10-NOV-2017 — First warning about Flynn to Trump by Obama during post-election meeting.

18-NOV-2017 — Flynn named National Security Adviser by Trump.

25-DEC-2017 — Flynn allegedly sends text messages to Russian ambassador Sergei Kislyak including holiday greetings.

29-DEC-2017 — New sanctions announced by Obama, including eviction of 35 Russians (including family members) from two compounds.

29-DEC-2017 — Michael Flynn talks with Kislyak more than once on the same day.

30-DEC-2017 — Trump tweeted positively about Russian president Vladimir Putin’s refusal to retaliate against the new sanctions.

12-JAN-2017 — The Washington Post reported on the Flynn-Kislyak conversations; source cited is “a senior U.S. government official.”

15-JAN-2017 — VP Mike Pence says in a TV interview that he had talked with Flynn about contact with Kislyak:

JOHN DICKERSON: Let me ask you about it was reported by David Ignatius that the incoming national security advisor Michael Flynn was in touch with the Russian ambassador on the day the United States government announced sanctions for Russian interference with the election. Did that contact help with that Russian kind of moderate response to it? That there was no counter-reaction from Russia. Did the Flynn conversation help pave the way for that sort of more temperate Russian response?

MIKE PENCE: I talked to General Flynn about that conversation and actually was initiated on Christmas Day he had sent a text to the Russian ambassador to express not only Christmas wishes but sympathy for the loss of life in the airplane crash that took place. It was strictly coincidental that they had a conversation. They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.

JOHN DICKERSON: So did they ever have a conversation about sanctions ever on those days or any other day?

MIKE PENCE: They did not have a discussion contemporaneous with U.S. actions on—

JOHN DICKERSON: But what about after—

MIKE PENCE: —my conversation with General Flynn. Well, look. General Flynn has been in touch with diplomatic leaders, security leaders in some 30 countries. That’s exactly what the incoming national security advisor—

JOHN DICKERSON: Absolutely.

MIKE PENCE: —should do. But what I can confirm, having spoken to him about it, is that those conversations that happened to occur around the time that the United States took action to expel diplomats had nothing whatsoever to do with those sanctions.

JOHN DICKERSON: But that still leaves open the possibility that there might have been other conversations about the sanctions.

MIKE PENCE: I don’t believe there were more conversations.

20-JAN-2017 — Inauguration Day

21-JAN-2017 — Flynn has a follow-up call with Kislyak with regard to a future phone call between Trump and Putin.

23-JAN-2017 — Answers to questions during a press briefing with White House Press Secretary Sean Spicer didn’t match what Pence said in the 15-JAN interview. Spicer said, “There’s been one call. I talked to Gen. Flynn about this again last night. One call, talked about four subjects. … During the transition, I asked Gen. Flynn that – whether or not there were any other conversations beyond the ambassador and he said no.”(Come on, Spicey. Come the fuck on. Pure sloppiness; this isn’t the time for disinformation.)

24-JAN-2017 — Flynn is interviewed by the FBI and without a lawyer present. Yates informed McGahn about Flynn’s interview.

25-JAN-2017 — Yates reviews Flynn’s interview.

25-JAN-2017 — Draft of the travel ban EO leaked and published by WaPo

A provision about safe zones in Syria appears in this draft. It will not appear in the final EO.

26-JAN-2017 — Yates called McGahn that morning and asked for an in-person meeting about a sensitive topic she could not discuss on the phone. They met later that afternoon at McGahn’s office:

…We began our meeting telling him that there had been press accounts of statements from the vice president and others that related conduct that Mr. Flynn had been involved in that we knew not to be the truth.”

A senior member of the DOJ’s National Security Division accompanied Yates. Yates explained why Flynn was compromised and how his actions set Pence up to make unknowingly false statements to the public.

Spicer has said McGahn immediately notified and briefed Trump after meeting with Yates.

27-JAN-2017 — McGahn called Yates and asked for a second in-person meeting. Yates met him at his office. During their conversation, McGahn asked, “Why does it matter to DOJ if one White House official lies to another?” Yates re-reviews the FBI’s concerns shared the previous day. (I want to ask if McGahn got his JD out of a box of Cracker Jacks.) McGahn asked,

“And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct.” (Bold mine; who is ‘they’?)

Yates indicated she would work with FBI team and “get back with him on Monday morning.”

27-JAN-2017 — Travel ban EO signed and distributed. Rex Tillerson has not yet appeared before the Senate in a confirmation hearing. Defense Department’s James Mattis did not see the EO until morning of January 27; the EO is signed later in the day after Mattis was sworn in just before 3:00 p.m. Homeland Security Secretary John Kelly said he saw final EO draft not long before it was signed. Office of Legal Counsel issued a determination about the EO that day, “the proposed order is approved with respect to form and legality.” According to Yates’ SJC testimony the OLC’s determination goes to the form and not the content of the EO.

28-JAN-2017 — Federal Judge Ann Donnelly issued a stay late Saturday on deportations of persons with valid visas.

29-JAN-2017 — Though not yet confirmed as Secretary of State, Tillerson involved in cabinet-level meetings in pre-dawn hours regarding the travel ban.

30-JAN-2017 — Yates called McGahn that morning and told him he could go to FBI to look at “underlying evidence.” McGahn does not reply until the afternoon. Yates didn’t know whether McGahn looked at evidence because “because that was my last day with DOJ.” Yates ordered DOJ not to defend the EO in court

30-JAN-2017 — Yates is fired by the White House Monday night. White House statement said,

“The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States … This order was approved as to form and legality by the Department of Justice Office of Legal Counsel. … Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration. It is time to get serious about protecting our country. Calling for tougher vetting for individuals travelling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.”

08-FEB-2017 — WaPo reports Flynn denied twice discussing Russian sanctions with Kislyak.

09-FEB-2017 — Allegedly, Pence learned this day Flynn was not straight with him about his interactions with Kislyak. WaPo reported Flynn had discussed sanctions with Kislyak prior to the inauguration.

10-FEB-2017 — ABC News reported Flynn wasn’t certain he talked about the sanctions with Kislyak. Pence spoke with Flynn twice this day.

12-FEB-2017 — Stephen Miller dodges questions about Flynn’s status during Sunday morning TV interviews.

13-FEB-2017 — Flynn resigns, 18 days after Yates raised questions with the White House about his vulnerability to compromise.

Yates’ directive not to enforce the illegal travel ban EO is the prima facie reason why she was fired a week after the EO was pushed. But was it really the travel ban or the fact she had not only warned the White House about Flynn’s compromised status but the implication there might be more at stake?

The rushed timing of the EO — pushed out on a Friday night after business hours — and its inception generate more questions about the travel ban.

Who really wrote the travel ban? Some reports say the ‘major architects’ were Stephen Miller and Steve Bannon, neither of whom have law degrees or any experience in legal profession. Wikipedia entry for Bannon indicates he has a master’s in national security studies from Georgetown, but there’s no indication about the date this was conferred and it’s still not a law degree. Miller has a BA from Duke and a bunch of cred from writing conservative stuff, much of it with a white nationalist bent. (Yeah, stuff, because none of it provided adequate background to write effective executive orders.)

There were reports a week after the first travel ban EO was issued which indicated Congressional aides actually wrote the executive order — aides from Rep. Bob Goodlatte’s office.

Who were those aides?

Why Goodlatte’s aides? Was it because Goodlatte is the Chairman of the House Judiciary Committee?

Was it because of Goodlatte’s immigration bills circa 2013:

H.R. 2278, the “Strengthen and Fortify Enforcement Act” (The SAFE Act)
H.R. 1773, the “Agricultural Guestworker Act”
H.R. 1772, the “Legal Workforce Act”
H.R. 2131, the “SKILLS Visa Act”

In other words, did the aides who wrote those bills also assist with and/or write the EO?

If these aides helped the ‘major architects’, why did the travel ban EO look so clearly illegal?

Did these aides ever refer the ‘major architects’ to the Office of Legal Counsel for assistance with the EO’s wording?

Did media try to interview the aides in question? If not, why? If not permitted to do so, why?

Did those aides sign a non-disclosure agreement with the White House? (Why the hell are there NDAs for ANY government employee anyhow, especially those with security clearance of any level? This is OUR government, not the Trump holding company.) Did the aides limit their work to transition team support, or were they working on the EO post-inauguration? Did they take vacation time to do the work? Or were they performing work for the White House on Congress’ dime?

In spite of his iffy-sounding support for their work, did Goodlatte kick those aides in the ass for moonlighting while puncturing the separation between the Executive Branch and the Legislative Branch, making it appear (if tenuously) there was a degree of concurrence between the two branches?

Did Michael Flynn talk about the EO with these aides?

And was Flynn one of the ‘major architects’ of the travel ban EO along with Miller and Bannon as reported in some outlets?

Assuming Flynn was a co-architect/co-author of the EO, was the EO pushed through in a hurry to effect Flynn’s work before he might be terminated and/or prosecuted?

Was the execution of a travel ban EO part of a quid pro quo with a foreign entity?
Is this the reason why Trump reduced the role of chairman of the Joint Chiefs of Staff and the director of national intelligence to “an as-needed basis” on National Security Council — to reduce potential interference by seasoned security professionals who might stop the EO?

Was Miller’s role in the creation of the travel ban EO less about any experience he has but instead related to his former work during 113th Congress with the Gang of Eight on immigration reform? (We come full circle – see Goodlatte’s bills above.)

How might this travel ban EO — banning Muslims from specific countries — help a foreign entity?

Or was the Muslim travel ban EO simply launched early — before the administration even had a Secretary of State, before its content was reasonably defensible — to distract Yates and the DOJ and derail further investigation into Flynn’s compromised status?

I’m sure if I spend any more time re-reading the SJC’s hearing transcript I’ll come up with even more questions. But as events around Flynn and the travel ban EO unfolded as if knit together, I can’t help wondering if they really were of a piece.

How odd that the first thing the first SJC non-chair member did, before asking witnesses any questions, was hand out a timeline of events to all the participants.

And how convenient FBI Director James Comey screwed up his last testimony before congress enough that his firing this evening by the White House would look entirely justified — immediately removing him not only from the next FBI flight from Los Angeles to DC but from any further investigation into Michael Flynn.

What timing.

The Implications of the Competing Flynn-Billingslea Stories

In advance of Sally Yates’ testimony Monday, the WaPo and AP have released stories on concerns about Mike Flynn’s ties with Russia during the transition period.

The stories themselves are interesting enough. But that and how they differ make them all the more interesting.

The WaPo story makes the Trump White House — and very specifically Marshall Billingslea, whom Trump recently nominated to be Treasury’s terrorist finance Assistant Secretary — look the hero of a story about warnings Trump’s people gave Mike Flynn about Russia. In this version, after growing concerned that Flynn had showed more interest in meeting Sergey Kislyak than any of the other ambassadors who were pestering him for meetings, Billingslea intervened to obtain CIA’s profile of Kislyak in time for a November 28 meeting Flynn and (though this receives far less emphasis) Jared Kushner attended.

Billingslea warned Flynn that Kislyak was likely a target of U.S. surveillance and that his communications — whether with U.S. persons or superiors in Moscow — were undoubtedly being monitored by the FBI and National Security Agency, according to officials familiar with the exchange. Flynn, a retired Army lieutenant general who led the Defense Intelligence Agency, would presumably have been aware of such surveillance.

Billingslea then said that he would obtain a copy of the profile of Kislyak, officials said, a document that Billingslea urged Flynn to read if he were going to communicate with the Russian envoy. Flynn’s reaction was noncommittal, officials said, neither objecting to the feedback nor signaling agreement.

Shortly thereafter, during the week of Nov. 28, Billingslea and other transition officials met with lower-level Obama administration officials in the Situation Room at the White House.

At the end of the meeting, which covered a range of subjects, Billingslea asked for the CIA profile. “Can we get material on Kislyak?” one recalled Billingslea asking.

Days later, Flynn took part in a meeting with Kislyak at Trump Tower. White House spokeswoman Hope Hicks has confirmed that both Flynn and Jared Kushner, Trump’s adviser and son-in-law, took part in that session, which was not publicly disclosed at the time.

In that story of the Trump Administration’s effort to warn off someone who (unlike the barely mentioned Kushner) had spent a lifetime working with spies of spying, the CIA dossier, which reportedly doesn’t say Kislyak is a spy (though other outlets have claimed he is this year) gets placed in the transition SCIF.

The CIA bio on Kislyak was placed in a room in the Trump transition offices set up to handle classified material. Officials familiar with the document said that even if Flynn had read it, there was little in it that would have triggered alarms.

The file spanned three or four pages, describing Kislyak’s diplomatic career, extensive involvement in arms negotiations, and reputation as a determined proponent of Russian interests. It noted that he routinely reported information back to Moscow and that any information he gathered would be shared with Russia’s intelligence services. But the file did not say Kislyak was a spy.

Compare that key detail to something that appears in the AP version, which is told from the perspective of Obama officials. That story reveals that documents (they’re not described as the CIA dossier) were copied and removed from the SCIF.

After learning that highly sensitive documents from a secure room at the transition’s Washington headquarters were being copied and removed from the facility, Obama’s national security team decided to only allow the transition officials to view some information at the White House, including documents on the government’s contingency plans for crises.

In the AP story, Billingslea’s request was seen as a warning sign about Flynn’s preparation (who, again, had a lifetime of working with spies) to deal with America’s adversarial relationship with Russia.

In late November, a member of Donald Trump’s transition team approached national security officials in the Obama White House with a curious request: Could the incoming team get a copy of the classified CIA profile on Sergey Kislyak, Russia’s ambassador to the United States?

Marshall Billingslea, a former Pentagon and NATO official, wanted the information for his boss, Michael Flynn, who had been tapped by Trump to serve as White House national security adviser. Billingslea knew Flynn would be speaking to Kislyak, according to two former Obama administration officials, and seemed concerned Flynn did not fully understand he was dealing with a man rumored to have ties to Russian intelligence agencies.

To the Obama White House, Billingslea’s concerns were startling: a member of Trump’s own team suggesting the incoming Trump administration might be in over its head in dealing with an adversary.

But later in the AP story, it describes the Obama’s team’s concern that the Kislyak dossier was the only one requested.

Leading up to the revelation that Trump officials copied classified documents from the SCIF (which is how it ends), the AP first warns that some of this story will come out in Sally Yates’ testimony next Monday. It also reveals that the Obama Administration withheld information from Trump’s team, worried they’d share it with Russia.

In late December, as the White House prepared to levy sanctions and oust Russians living in the in the U.S. in retaliation for the hacks, Obama officials did not brief the Trump team on the decision until shortly before it was announced publicly. The timing was chosen in part because they feared the transition team might give Moscow lead time to clear information out of two compounds the U.S. was shuttering, one official said.

While it’s not inappropriate for someone in Flynn’s position to have contact with a diplomat, Obama officials said the frequency of his discussions raised enough red flags that aides discussed the possibility Trump was trying to establish a one-to-one line of communication — a so-called back channel — with Russian President Vladimir Putin. Obama aides say they never determined why Flynn was in close contact with the ambassador.

Viewed in comparison, the stories seem like competing efforts to get ahead of what both sides know will come out on Monday. The Trump team, knowing some of what Yates will say (in testimony they tried to prevent), is now making the remaining White House officials look good, and providing a somewhat plausible explanation for obtaining just the Kislyak dossier. But AP’s revelation that Trump’s people were copying documents from the SCIF that held the dossier raise questions about whether the reason it was obtained was to share the dossier. Neither story mentions what Adam Schiff has, which is that one really interesting detail will be the delay in ousting Flynn after Yates first told the White House of her concerns.

Both the stories leave out a detail the NYT previously reported that seems important, however: that Kislyak meeting, which the spook-savvy Flynn and the young Kushner attended, led to a second and a third, ultimately leading Kushner to meet the FSB-trained head of a sanctioned bank.

Until now, the White House had acknowledged only an early December meeting between Mr. Kislyak and Mr. Kushner, which occurred at Trump Tower and was also attended by Michael T. Flynn, who would briefly serve as the national security adviser.

Later that month, though, Mr. Kislyak requested a second meeting, which Mr. Kushner asked a deputy to attend in his stead, officials said. At Mr. Kislyak’s request, Mr. Kushner later met with Sergey N. Gorkov, the chief of Vnesheconombank, which drew sanctions from the Obama administration after President Vladimir V. Putin of Russia annexed Crimea and began meddling in Ukraine.

The subtext of taking the two Billingslea stories and the Sergey Gorkov one together is that Flynn — or even the President’s son-in-law — may have provided intelligence to the Russians, in events that led up to the closest thing we’ve seen to a possible quid pro quo.

In any case, the dossier seems either better suited to warning Kushner, not Flynn, of the dangers he was navigating, or a document that, if copied and handed to its subject, would be interesting though not devastating intelligence to share.

One final point: this story helps to explain why both the December 28 sanctions and the early January hack report were so awful; remember, too, when first announced, the press had the wrong location of the Long Island compound in question. At the time, I thought both were designed to be a document, any document, ones that didn’t reveal what the intelligence community actually knew (aside from the identities of the 35 expelled diplomats), particularly regarding who actually conducted the DNC hack. The AP story reveals Obama’s team was particularly worried Trump’s team would warn the Russians in time to dismantle some of the communications equipment at the two compounds. The crummy documents, plus the delay in informing Congress of the scope of the investigation until Flynn had been ousted, are both best explained by a concern that the National Security Advisor would share the information directly with Russia.

So will we learn that Flynn — or Kushner — did share such information?

Why Susan Rice May Be a Shiny Object

A bunch of Republican propagandists are outraged that the press isn’t showing more interest in PizzaGate Mike Cernovich’s “scoop” that the woman in charge of ensuring our national security under President Obama, then National Security Advisor Susan Rice, sought to fully understand the national security intercepts she was being shown.

There are two bases for their poutrage, which might have merit — but coming from such hacks, may not.

The first is the suggestion, based off Devin Nunes’ claim (and refuted by Adam Schiff) that Rice unmasked things she shouldn’t have. Thus far, the (probably illegally) leaked details — such as that family members, perhaps like Jared Kushner (who met with an FSB officer turned head of a sanctioned Russian bank used as cover for other spying operations), Sean Hannity (who met with an already-targeted Julian Assange at a time he was suspected of coordinating with Russians), and Erik Prince (who has literally built armies for foreign powers) got spied on — do nothing but undermine Nunes’ claims. All the claimed outrageous unmaskings actually seem quite justifiable, given the accepted purpose for FISA intercepts.

The other suggestion — and thus far, it is a suggestion, probably because (as I’ll show) it’s thus far logically devoid of evidence — is that because Rice asked to have the names of people unmasked, she must be the person who leaked the contents of the intercepts of Sergey Kislyak discussing sanctions with Mike Flynn. (Somehow, the propagandists always throw Ben Rhodes’ name in, though it’s not clear on what basis.)

Let me start by saying this. Let’s assume those intercepts remained classified when they were leaked. That’s almost certain, but Obama certainly did have the authority to declassify them, just as either George Bush or Dick Cheney allegedly used that authority to declassify Valerie Plame’s ID (as some of these same propagandists applauded back in the day). But assuming the intercepts did remain classified, I agree that it is a problem that they were leaked by nine different sources to the WaPo.

But just because Rice asked to unmask the identities of various Trump (and right wing media) figures doesn’t mean she and Ben Rhodes are the nine sources for the WaPo.

That’s because the information on Flynn may have existed in a number of other places.

Obviously, Rice could not have been the first person to read the Flynn-Kislyak intercepts. That’s because some analyst(s) would have had to read them and put them into a finished report (most, but not all, of Nunes’ blathering comments about these reports suggest they were finished intelligence). Assuming those analysts were at NSA (which is not at all certain) someone would have had to have approved the unmasking of Flynn’s name before Rice saw it.

In addition, it is possible — likely even, at least by January 2017, when we know people were asking why Russia didn’t respond more strongly to Obama’s hacking sanctions — that there were two other sets of people who had access to the raw intelligence on Flynn’s conversations with Kislyak: the CIA and, especially, the FBI, which would have been involved in any FISA-related collection. Both CIA and FBI can get raw data on topics they’re working on. Likely, in this case, the multi-agency task force was getting raw collection related to their Russian investigation.

And as I’ve explained, as soon as FBI developed a suspicion that either Kislyak was at the center of discussions on sanctions or that Flynn was an unregistered agent of multiple foreign powers, the Special Agents doing that investigation would routinely pull up everything in their databases on those people by name, which would result in raw Title I and 702 FISA collection (post January 3, it probably began to include raw EO 12333 data as well).

So already you’re up to about 15 to 20 people who would have access to the raw intercepts, and that’s before they brief their bosses, Congress (though the Devin Nunes and Adam Schiff briefing, at least, was delayed a bit), and DOJ, all the way up to Sally Yates, who wanted to warn the White House. Jim Comey has suggested it is likely that the nine sources behind the WaPo story were among these people briefed secondarily on the intercepts. And it’s worth noting that David Ignatius, who first broke the story of Flynn’s chats with Kislyak but was not credited on the nine source story, has known source relationships in other parts of the government than the National Security Advisor, though he also has ties to Rice.

All of which is to say that the question of who leaked the contents of Mike Flynn’s conversations with Sergey Kislyak is a very different question from whether Susan Rice’s requests to unmask Trump associates’ names were proper or not. It is possible that Rice leaked the intercepts without declassifying them first. But it’s also possible that any of tens of other people did, most of whom would have a completely independent channel for that information.

And the big vulnerability is not — no matter what Eli Lake wants to pretend — the unmasking of individual names by the National Security Advisor. Rather, it’s that groups of investigators can access the same intelligence in raw form without a warrant tied to the American person in question.

Did Trump Just Confirm He Hid Sally Yates’ Warning from Mike Pence?

The WaPo has another big story, this one reporting that the Trump Administration attempted to prevent Sally Yates from testifying about her warnings to the Trump Administration that Mike Flynn had had conversations about sanctions with Russian Ambassador Sergey Kislyak.

Scott Schools, another Justice Department official, replied in a letter the following day, saying the conversations with the White House “are likely covered by the presidential communications privilege and possibly the deliberative process privilege. The president owns those privileges. Therefore, to the extent Ms. Yates needs consent to disclose the details of those communications to [the intelligence panel], she needs to consult with the White House. She need not obtain separate consent from the department.’’

Yates’s attorney then sent a letter Friday to McGahn, the White House lawyer, saying that any claim of privilege “has been waived as a result of the multiple public comments of current senior White House officials describing the January 2017 communications. Nevertheless, I am advising the White House of Ms. Yates’ intention to provide information.’’

That same day, Nunes, the panel’s chairman, said he would not go forward with the public hearing that was to feature Yates’s testimony.

In response to the story, Adam Schiff suggested Yates might have testified about why Trump waited before firing Flynn.

[W]e would urge that the open hearing be rescheduled without further delay and that Ms. Yates be permitted to testify freely and openly so that the public may understand, among other matters, when the President was informed that his national security advisor had misled the Vice President and through him, the country, and why the President waited as long as he did to fire Mr. Flynn.

According to the WaPo, Yates informed Don McGahn that Flynn was lying about his calls, making him susceptible to blackmail, on January 26. She was fired on January 31. Flynn tried to lie about the conversation again on February 8. Then, as the WaPo was reporting this story, he altered his story. Nevertheless, it wasn’t until the WaPo reported on Yates’ warning, on February 13, that Trump forced Flynn to resign.

Two days after Yates’ warning, January 28, Trump spent an hour on the phone with Vladimir Putin, with Flynn (and Pence) in attendance.

So one of the things that Trump enabled by stalling on his response to Sally Yates was that phone call.

In any case, the claim that Yates’ conversations with McGahn should be covered by Executive Privilege is a stretch. Just by way of precedent, in 2007, Jim Comey testified about his conversations with White House Counsel Alberto Gonzales while serving as Acting Attorney General.

That is, Yates’ conversation should not be covered by Executive Privilege unless Trump is claiming he was involved in hiding this information from Mike Pence.

On Sally Yates’ Stand and the Session’s Nomination

There are two funny details about the reporting on the stand then Acting Attorney General Sally Yates took against Donald Trump’s Muslim ban, which led to her firing. First, even in a story that explains the process by which Yates decided to order DOJ not to enforce the ban, there’s little consideration of timing.

[O]n Friday, Yates heard a media report that Trump had signed an executive order temporarily barring entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world.

No one from the White House had consulted with Yates or any other senior leaders in the Justice Department. Yates had to decide whether her lawyers could defend Trump’s action in court. She did not even have a copy of the order, and her aides had to go online to find it.

“It was chaos,” said a senior Justice Department official.

[snip]

As acting attorney general Sally Yates struggled to figure out how or whether to defend President Trump’s immigration order last weekend — while protests erupted at airports nationwide, immigrants were denied entry to the United States and civil rights lawyers rushed to court — two events helped crystallize her decision.

The first was a television appearance by Trump on the Christian Broadcasting Network. In an interview, he said that Christians in the Middle East who were persecuted should be given priority to move to the United States because they had been “horribly treated.”

The second was late Saturday night when former New York mayor Rudolph W. Giuliani appeared on Fox News. Giuliani said Trump wanted a “Muslim ban” and asked him to pull together a commission to show him “the right way to do it legally.”

“Those two things put the order in a very different light,” said a senior Justice Department official familiar with her decision. “Trump’s executive order appeared to be designed to make distinctions among different classes of people based on their religion.”

The article cites the CBN interview with Trump — the interview was done on Friday and clips started being released on Saturday — but doesn’t say when Yates saw the interview. But the Giuliani interview was later in the day on Saturday.

By that point, DOJ already was defending the EO, at least against motions for stays, with stories of DOJ attorneys getting calls late at night to contest ACLU and other civil liberties’ groups suits. Where was Yates during that period? Who was calling these attorneys and getting them to courtrooms?

Just as notably, though, such reports rarely raise how Yates’ actions on Monday that led to her firing might have been designed to impact Jeff Sessions’ confirmation process, even while everyone reported on the question Sessions posed to Yates during her own confirmation about refusing illegal orders. Yet that’s precisely what happened, as Democrats delayed the committee vote on Sessions a day, citing the Yates versus Sessions exchange and the Muslim ban.

None of that means Yates’ delayed decision wasn’t the right one to make, one made from a principled stand about the discriminatory impact of this ban. It just seems like a decision that also served to heighten the pressure on Sessions’ own complicity in this bigotry.

FBI Still Not Counting How Often Encryption Hinders Their Investigations

The annual wiretap report is out. The headline number is that wiretaps have gone up, and judges still don’t deny any wiretap applications.

The number of federal and state wiretaps reported in 2015 increased 17 percent from 2014.   A total of 4,148 wiretaps were reported as authorized in 2015, with 1,403 authorized by federal judges and 2,745 authorized by state judges.  Compared to the applications approved during 2014, the number approved by federal judges increased 10 percent in 2015, and the number approved by state judges increased 21 percent.  No wiretap applications were reported as denied in 2015.

The press has focused more attention on the still very small number of times encryption thwarts a wiretap.

The number of state wiretaps in which encryption was encountered decreased from 22 in 2014 to 7 in 2015.  In all of these wiretaps, officials were unable to decipher the plain text of the messages.  Six federal wiretaps were reported as being encrypted in 2015, of which four could not be decrypted.  Encryption was also reported for one federal wiretap that was conducted during a previous year, but reported to the AO for the first time in 2015.  Officials were not able to decipher the plain text of the communications in that intercept.

Discussing the number — which doesn’t include data at rest — on Twitter got me to look at something that is perhaps more interesting.

Back in July 2015, 7 months into the period reported on today, Deputy Attorney General Sally Yates and FBI Director Jim Comey testified in a “Going Dark” hearing. Over the course of the hearing, they admitted that they simply don’t have the numbers to show how big a problem encryption is for their investigations, and they appeared to promise to start counting that number.

Around January 26, 2016 (that’s the date shown for document creation in the PDF) — significantly, right as FBI was prepping to go after Syed Rizwan Farook’s phone, but before it had done so — Comey and Yates finally answered the Questions for the Record submitted after the hearing. After claiming, in a response to a Grassley question on smart phones, “the data on the majority of the devices seized in the United States may no longer be accessible to law enforcement even with a court order or search warrant,” Comey then explained that they do not have the kind of statistical information Cy Vance claims to keep on phones they can’t access, explaining (over five months after promising to track such things),

As with the “data-in-motion” problem, the FBI is working on improving enterprise-wide quantitative data collection to better explain the “data-at-rest” problem.”

[snip]

As noted above, the FBI is currently working on improving enterprise-wide quantitative data collection to better understand and explain the “data at rest” problem. This process includes adopting new business processes to help track when devices are encountered that cannot be decrypted, and when we believe leads have been lost or investigations impeded because of our inability to obtain data.

[snip]

We agree that the FBI must institute better methods to measure these challenges when they occur.

[snip]

The FBI is working to identify new mechanisms to better capture and convey the challenges encountered with lawful access to both data-in-motion and data-at =-rest.

Grassley specifically asked Yates about the Wiretap report. She admitted that DOJ was still not collecting the information it promised to back in July.

The Wiretap Report only reflects the number of criminal applications that are sought, and not the many instances in which an investigator is dissuaded from pursuing a court order by the knowledge that the information obtained will be encrypted and unreadable. That is, the Wiretap Report does not include statistics on cases in which the investigator does not pursue an interception order because the provider has asserted that an intercept solution does not exist. Obtaining a wiretap order in criminal investigations is extremely resource-intensive as it requires a huge investment in agent and attorney time, and the review process is extensive. It is not prudent for agents and prosecutors to devote resources to this task if they know in advance the targeted communications cannot be intercepted. The Wiretap Report, which applies solely to approved wiretaps, records only those extremely rare instances where agents and prosecutors obtain a wiretap order and are surprised when encryption prevents the court-ordered interception. It is also important to note that the Wiretap Report does not include data for wiretaps authorized as part of national security investigations.

These two answers lay out why the numbers in the Wiretap Report are of limited value in assessing how big a problem encryption is.

But they also lay out how negligent DOJ has been in responding to the clear request from SJC back in July 2015.

Why Doesn’t Dianne Feinstein Want to Prevent Murders Like those Robert Dear Committed?

In response to Chris Murphy’s 15 hour filibuster, Democrats will get a vote on several gun amendments to an appropriations bill, one mandating background checks for all gun purchases, another doing some kind of check to ensure the purchaser is not a known or suspected terrorist.

The latter amendment is Dianne Feinstein’s (see Greg Sargent’s piece on it here). It started as a straight check against the No Fly list (which would not have stopped Omar Mateen from obtaining a gun), but now has evolved. It now says the Attorney General,

may deny the transfer of a firearm if [she] determines, based on the totality of the circumstances, that the transferee represents a threat to public safety based on a reasonable suspicion that the transferee is engaged, or has been engaged, in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources therefor.

[snip]

The Attorney General shall establish, within the amounts appropriated, procedures to ensure that, if an individual who is, or within the previous 5 years has been, under investigation for conduct related to a Federal crime of terrorism, as defined in section 2332b(g)(5) of title 18, United States Code, attempts to purchase a firearm, the Attorney General or a designee of the Attorney General shall be promptly notified of the attempted purchase.

The way it would work is a background check would trigger a review of FBI files; if those files showed any “investigation” into terrorism, the muckety mucks would be notified, and they could discretionarily refuse to approve the gun purchase, which they would almost always do for fear of being responsible if something happened.

The purchaser could appeal through the normal appeals process (which goes first to the AG and then to a District Court), but,

such remedial procedures and judicial review shall be subject to procedures that may be developed by the Attorney General to prevent the unauthorized disclosure of information that reasonably could be expected to result in damage to national security or ongoing law enforcement operations, including but not limited to procedures for submission of information to the court ex parte as appropriate, consistent of due process.

Given that an AG recently deemed secret review of Anwar al-Awlaki’s operational activities to constitute enough due process to execute him, the amendment really should be far more specific about this (including requiring the government to use CIPA). When you give the Executive prerogative to withhold information, they tend to do so, well beyond what is adequate to due process.

But there are two other problems with this amendment, one fairly minor, one very significant.

First, minor, but embarrassing, given that Feinstein is on the Senate Judiciary Committee and Ranking Member Pat Leahy is a cosponsor. This amendment doesn’t define what “investigate” means, which is a term of art for the FBI (which triggers each investigative method to which level of investigation you’re at). Given that it is intended to reach someone like Omar Mateen, it must intend to extend to “Preliminary Investigations,” which “may be opened on the basis of any ‘allegation or information’ indicative of possible criminal activity or threats to national security.” Obviously, the Mateen killing shows that someone can exhibit a whole bunch of troubling behaviors and violence yet not proceed beyond the preliminary stage (though I suspect we’ll find the FBI missed a lot of what they should have found, had they not had a preconceived notion of what terrorism looks like and an over-reliance on informants rather than traditional investigation). But in reality, a preliminary investigation is a very very low level of evidence. Yet it would take a very brave AG to approve a gun purchase for someone who had hit a preliminary stage, because if that person were to go onto kill, she would be held responsible.

Also note, though, that I don’t think Syed Rizwan Farook had been preliminarily investigated before his attack last year, though he had been shown to have communicated with someone of interest (which might trigger an assessment). So probably, someone would try to extend it to “assessment” or “lead” stages, which would be an even crazier level of evidence. By not carefully defining what “investigate” means, then, the amendment invites a slippery slope in the future to include those who communicate with people of interest (which is partly what the Terrorist Watch — not No-Fly — list consists of now).

Here’s the bigger problem. As I’ve noted repeatedly, our definition of terrorism (which is the one used in this amendment) includes a whole bunch of biases, which not only disproportionately affect Muslims, but also leave out some of our most lethal kinds of violence. For example, the law treats bombings as terrorist activities, but not mass shootings (so effectively, this law would seem to force actual terrorists into pursuing bombings, because they’d still be able to get those precursors). It is written such that animal rights activists and some environmentalists get treated as terrorists, but not most right wing hate groups. So for those reasons, the law would not reach a lot of scary people with guns who might pose as big a threat as Mateen or Farook.

Worse, the amendment reaches to material support for terrorism, which in practice (because it is almost always applied only for Muslim terrorist groups) has a significantly disproportionate affect on Muslims. In Holder v Humanitarian Law Project, SCOTUS extended material support to include speech, and Muslims have been prosecuted for translating violent videos and even RTing an ISIS tweet. Speech (and travel) related “material support” don’t even have to extend to formal terrorist organizations, meaning certain kinds of anti-American speech or Middle East travel may get you deemed a terrorist.

In other words, this amendment would deprive Muslims simply investigated (possibly even just off a hostile allegation) for possibly engaging in too much anti-American speech of guns, but would not keep guns away from anti-government or anti-choice activists advocating violence.

Consider the case of anti-choice Robert Dear, the Colorado Springs Planned Parenthood killer. After a long delay (in part because his mass killing in the name of a political cause was not treated as terrorism), we learned that Dear had previously engaged in sabotage of abortion clinics (which might be a violation of FACE but which is not treated as terrorism), and had long admired clinic killer Paul Hill and the Army of God. Not even Army of God’s ties to Eric Rudolph, the 1996 Olympics bomber, gets them treated as a terrorist group that Dear could then have been deemed materially supporting. Indeed, it was current Deputy Attorney General Sally Yates who chose not to add any terrorism enhancement to Rudolph’s prosecution. Dear is a terrorist, but because his terrorism doesn’t get treated as such, he’d still have been able to obtain guns legally under this amendment.

For a whole lot of political reasons, Muslims engaging in anti-American rants can be treated as terrorists but clinic assassins are not, and because of that, bills like this would not even keep guns out of the hands of some of the most dangerous, organizationally networked hate groups.

Now, I actually have no doubt that Feinstein would like to keep guns out of the hands of people like Robert Dear and — especially given her personal tie to Harvey Milk’s assassination — out of the hands of violent homophobes. But this amendment doesn’t do that. Rather, it predominantly targets just one group of known or suspected “terrorists.” And while the instances of Islamic extremists using guns have increased in recent years (as more men attempt ISIS-inspired killings of soft targets), they are still just a minority of the mass killings in this country.

FBI Has Been Not Counting Encryption’s Impact on Investigations for Over a Decade

During the first of a series of hearings in the last year in which Jim Comey (at this particular hearing, backed by Deputy Attorney General Sally Yates) pushed for back doors, they were forced to admit they didn’t actually have numbers proving encryption was a big problem for their investigations because they simply weren’t tracking that number.

On the issue on which Comey — and his co-witness at the SJC hearing, Deputy Attorney General Sally Yates — should have been experts, they were not. Over an hour and a quarter into the SJC hearing, Al Franken asked for actual data demonstrating how big of a problem encryption really is. Yates replied that the government doesn’t track this data because once an agency discovers they’re targeting a device with unbreakable encryption, they use other means of targeting. (Which seems to suggest the agencies have other means to pursue the targets, but Yates didn’t acknowledge that.) So the agencies simply don’t count how many times they run into encryption problems. “I don’t have good enough numbers yet,” Comey admitted when asked again at the later hearing about why FBI can’t demonstrate this need with real data.

In point of fact, a recent wiretap report shows that in the criminal context, at least, federal agencies do count such incidences, sometimes. But they don’t report the numbers in a timely fashion (5 of the 8 encrypted federal wiretaps reported in 2014 were from earlier years that were only then being reported), and agencies were eventually able to break most of the encrypted lines (also 5 of 8). Moreover, those 8 encrypted lines represented only 0.6 percent of all their wiretaps (8 of 1279). Reporting for encrypted state wiretaps were similarly tiny. Those numbers don’t reflect FISA wiretaps. But there, FBI often partners with NSA, which has even greater ability to crack encryption.

In any case, rather than documenting the instances where encryption thwarted the FBI, Comey instead asks us to just trust him.

Which is important background to an ancillary detail in this NYT story on how FBI tried a work-around for PGP in 2003 — its first attempt to do so — to go after some animal rights activists (AKA “eco-terrorists).

In early 2003, F.B.I. agents hit a roadblock in a secret investigation, called Operation Trail Mix. For months, agents had been intercepting phone calls and emails belonging to members of an animal welfare group that was believed to be sabotaging operations of a company that was using animals to test drugs. But encryption software had made the emails unreadable.

So investigators tried something new. They persuaded a judge to let them remotely, and secretly, install software on the group’s computers to help get around the encryption.

[snip]

“This was the first time that the Department of Justice had ever approved such an intercept of this type,” an F.B.I. agent wrote in a 2005 document summing up the case.

DOJ didn’t include this encounter with encryption in the wiretap reports that mandate such reporting.

It is also unclear why the Justice Department, which is required to report every time it comes across encryption in a criminal wiretap case, did not do so in 2002 or 2003. The Justice Department and F.B.I. did not comment Wednesday.

It didn’t count that encounter with crypto even though FBI was discussing — as Bob Litt would 13 years later — exploiting fears of “terrorism” to get Congress to pass a law requiring back doors.

“The current terrorism prevention context may present the best opportunity to bring up the encryption issue,” an F.B.I. official said in a December 2002 email. A month later, a draft bill, called Patriot Act 2, revealed that the Justice Department was considering outlawing the use of encryption to conceal criminal activity. The bill did not pass.

Now, it may be that, as remained the case until last year, FBI simply doesn’t record that they encountered encryption and instead tries to get the information some other way. But by all appearances, encryption was tied to that wiretap.

Which suggests another option: that FBI isn’t tracking how often it encounters encryption because it doesn’t want to disclose that it is actually finding a way around it.

That’d be consistent with what they’ve permitted providers to report in their transparency reports. Right now, providers are not permitted to report on new collection (say, collection reflecting the compromise of Skype) for two years after it starts. The logic is that the government is effectively giving itself a two year window of exclusive exploitation before it will permit reporting that might lead people to figure out something new has been subjected to PRISM or other collection.

Why would we expect FBI to treat its own transparency any differently?

Update: This post has been updated to include more of the NYT article and a discussion of how encryption transparency may match provider transparency.