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The State of Play: Joshua Schulte and Julian Assange

Last year, it looked like the Joshua Schulte trial, rescheduled in the fall to start January 13, would be done before the extradition hearing for Julian Assange started. Two things changed since then: Schulte got a delay until February 3, and then last month, Assange convinced Judge Vanessa Baraitser to split his extradition hearing into two, the first part lasting a week starting Monday, and then resuming on May 18 for three more weeks.

As a result, both men are in court during the same week, intersecting in interesting ways.

Thus far, Assange’s argument is threefold:

  1. His prosecution is hopelessly political, merely retaliation by the hated President that Assange helped elect, Donald Trump
  2. The evidence in the case against Assange is so weak as to be abusive
  3. A person cannot be extradited for political crimes like the Espionage Act

The first argument is a load of horseshit covering up the fact that the timing of the treatment of WikiLeaks as a non-state hostile intelligence service, the increased surveillance of Assange, and the initial December 21, 2017 charge all stem from WikiLeaks’ burning the CIA by publishing all its hacking tools. It’s horseshit, but it garners a lot of enthusiasm among WikiLeaks supporters who like to conveniently forget that, whatever Assange’s motivations were in 2010 (when he engaged in the acts he is charged with), he nevertheless helped Russia help Trump get elected. That said, even though the claims about what changed in 2017 are horseshit, it doesn’t change that the existing charges against Assange pose a real danger to journalism.

The second argument is far stronger. For each of the theories of prosecution under which Assange is charged — attempting to help Chelsea Manning crack a password, soliciting certain files via WikiLeaks’ wish list, and publishing a bunch of files in which the names of US and British sources were later revealed — Assange has at least a credible defense. Assange never succeeded, and could not have succeeded, in cracking that password. Manning didn’t leak the precise files that WikiLeaks had on its wish list (though did leak some of the same sets). WikiLeaks originally went to some effort to redact the names of sources, only to have a Guardian journalist release the password revealing them. Mind you, the extradition hearing is not the trial itself, so for these defenses to be relevant, WikiLeaks has to prove that the case against Assange is abusively weak.

The third argument, which is being argued today, is a more interesting legal question. Assange claims that the existing Anglo-US extradition treaty, passed in 2003, still prohibits extradition for political offenses like theEspionage Act. The US argues that Assange’s extradition is governed by the Extradition Act of 2003, which did not include such a bar (and also disagrees that these are political crimes). The lawyers are even arguing about the Magna Carta! Judge Vanessa Baraitser seems inclined to side with the US on this point, but the question will surely be appealed. Mind you, one of the charges against Assange, CFAA, is in no way a political offense, and the UK has not barred its own citizens, much less foreign citizens hanging out in foreign embassies, from being extradited on the charge (though several hackers, most recently Lauri Love, have challenged their extradition to the US for CFAA on other grounds).

Yesterday, Assange’s defense spent a good deal of time making the second argument. The US didn’t respond. Rather, it said it would deal with those issues in the May hearing.

Meanwhile, the Schulte trial is wrapping up, with Schulte doing little to mount a defense, but instead preparing an appeal. Yesterday, Schulte asked that an instruction on the defendant not testifying be added to the jury instructions (normally, these are included from the start, but Schulte has been claiming he would testify all this time). Today, Schulte told the court that Steve Bellovin won’t testify because he never got access to all the data Judge Paul Crotty ruled he couldn’t have access to (not mentioning, however, that the restrictions stemmed from Crotty’s own CIPA judgment).

I’m still unclear on the status of the witness, Michael. Schulte is trying to submit his CIA investigative report in lieu of finishing cross-examination (which is where things had left off). But it still seems possible that Crotty would require his testimony to be resumed, giving the government another opportunity to redirect his testimony. This is all likely happening today, but given that there’s so little coverage of the trial, we won’t know until Thursday.

Before all this happened, however, the jailhouse informant provided very damning testimony against Schulte, not only describing how Schulte obtained a phone (swapping an iPhone for a Samsung that he could load all the apps he wanted on it), but also claiming that Schulte said, “Russia had to help him with what he was doing,” launching an information war.” I had learned of similar allegations of ties or willingness to forge them with Russia via several sources in the past. And Schulte’s own jailroom notebooks include hints of the same, such as a bullet point describing how Russia could help the US “destroy itself.”

And his final plan — which the informant alerted his handlers to just before Schulte launched it — included some “Russia pieces.”

As part of the same plan to get fellow SysAdmins to leak all their secrets to WikiLeaks, then, Joshua Schulte was also hoping to encourage Russia to attack the US.

I’ve long said the Vault 7 case, if it were ever added to Julian Assange’s charges (including an extortion charge, which would also not be a political crime), would be far more damning and defensible than the ones currently charged. Filings from November suggested that the government had come to think of Schulte’s leaks to WikiLeaks as the last overt act in an ongoing conspiracy against the United States.

And by 2018, Schulte had come to see leaking to WikiLeaks as part of the same plan encouraging Russian attacks on the US, precisely the allegation WikiLeaks has spent years trying to deny, especially in the wake of Assange’s cooperation in Russia’s election year operation.

It’s not clear whether the US will add any evidence to the original 2010 charges against Assange before May (though Alexa O’Brien has pointed to where additional evidence might be), but the statement they’re waiting until then to rebut the solid defense that WikiLeaks is now offering suggests they might. That might reflect a hope that more coercion against Chelsea Manning will produce that additional evidence (she has renewed her bid to be released, arguing that such coercion has obviously failed). Or it might suggest they’ve got plans to lay out a broader conspiracy if and when Schulte is convicted.

Assange’s lawyers pushed for the delay to May in the first place. If the US government uses the extra time to add charges related to Vault 7, though, the delay may make a significant difference in the posture of the case.

Kim DotCom Posts Evidence Trump’s “Best Friend (Name Redacted)” in Pardon Discussions

Last night, Kim DotCom tried to take credit for brokering the meeting at which Dana Rohrabacher tried to pardon a pardon deal whereby Julian Assange would claim Seth Rich was his source for the DNC emails and Trump would pay him off with a pardon. He posted a bunch of texts with “Trumps best friend (name redacted)” where he pushed his  interlocutor to get Trump to take a public step in favor of the deal.

Only, the name of Trump’s “best friend (name redacted)” was not actually redacted.

While I have no doubt DotCom is overselling his own role in this, it does appear he was talking directly to Sean Hannity about it.

Which would suggest a real continuity between whatever happened when Hannity met Assange in January 2017, not long after Roger Stone reached out to Margaret Kunstler to discuss a pardon, and what happened in August 2017, when Dana Rohrabacher resumed discussion of the pardon. That suggests pardon discussions were not — as WikiLeaks is now falsely portraying — a one-time bid that got rejected, leading to Assange’s prosecution, but rather continued from late December 2016 until at least August 2017, through the time when Mike Pompeo labeled WikiLeaks a non-state hostile intelligence agency.

CIA Put Joshua Schulte’s Buddy on Administrative Leave Last August

Update, 2/21/20: This post has been updated reflecting the DOJ response to Schulte’s bid for a mistrial based on this dispute. The response makes quite clear that the administrative leave pertains only to concerns about Michael’s candor regarding Schulte’s behavior.

Neither the Government nor the CIA believes anyone else was involved, and the defendant’s claims otherwise are based on a distorted reading of the CIA memorandum placing Michael on administrative leave (the “CIA Memorandum”). The CIA Memorandum explicitly states that Michael was placed on leave because of concerns he was not providing information about the defendant (not that he is a suspect in the theft); the Government has confirmed with the author of that memorandum that the memorandum was not intended to suggest that it was Michael rather than the defendant who stole the Vault 7 Information; and, in any event, the defendant has had all of the relevant information underlying the CIA Memorandum for months in advance of trial.

There was some drama at the end of last week’s testimony in the trial of accused Vault 7 leaker, Joshua Schulte. Schulte’s lawyers forced the government to admit that Schulte’s buddy, testifying under the name, “Michael,” is on paid leave from the CIA for lack of candor.

It turns out “Michael” got put on paid leave in August 2019, shortly after his seventh interview as part of the investigation (his interview dates, based DOJ’s response off Shroff’s cross-examination, were March 16, 2017, June 1, 2017, June 2, 2017, June 6, 2017, August 30, 2017, March 8, 2018, August 16, 2019, and January 13, 2020).

While prosecutors provided Schulte the underlying interview reports (the last one wasn’t even a 302 because prosecutors led the interview, with just one FBI agent present, possibly as part of pre-trial prep), they withheld documents explaining the personnel change until providing part of the documentation the night before Michael’s testimony starting on February 12. Technically, that late notice probably complied with Jencks, but once Judge Paul Crotty realized what documentation had been shared with whom, he granted the defense request for a continuance of Michael’s testimony so they could better understand the implications. Withholding the information was a dickish move on the part of the prosecutors.

The question is, why prosecutors did this, why they withheld information that might be deemed key to a fair trial.

I don’t think defense counsel Sabrina Shroff’s seeming take — that the government tried to hide Michael’s personnel status to hide that they were (purportedly) coercing him to get his story “to morph a little,” to testify in the way he had on threat of false statements charges and certain firing from the CIA — makes sense. That’s because, on the two key issues he testified about, Michael testified in roughly the same way in court as he did in FBI interviews in the wake of the Vault 7 disclosure.

On the stand under direct examination, Michael explained how he told his and Schulte’s colleague, Jeremy Weber, to take away Schulte’s access because he feared Schulte would respond to losing access to his own projects by restoring that access, which would lead to significant trouble.

Q. Did you ever speak with Mr. Weber about the defendant’s anger?

A. Yes.

Q. What did you talk about?

A. We didn’t talk about his anger per se. But, I told Jeremy that he should remove all of Josh’s admin accesses.

Q. Why did you ask Mr. Weber to do that?

A. I felt like Jeremy was kind of, like, setting him up. I knew that Josh was mad at Jeremy, and that he was putting him in a position where Josh had the ability or the access to change permissions on the project in question. And that he would do that because he didn’t respect Jeremy’s authority.

As Shroff elicited on cross-examination, Michael told the FBI something very similar on August 30, 2017.

Q. And it is in this meeting, if you remember, that you told the FBI that, in your opinion, Mr. Weber was setting Mr. Schulte up. Do you remember that?

A. I remember feeling that way.

Q. Okay. By that you mean that you thought Mr. Weber was setting Mr. Schulte up to fail at his job at the CIA, right?

A. I thought he was — baiting him into using his accesses, for a lack of a better word.

[snip]

A. Yeah, I thought he was setting — he was creating circumstances where he knew that Josh had access to change permissions on the server, Josh was an admin. He was telling Josh you cannot do this. But Josh technically could do that, right, he had the technical capability to do that. So, Josh was going to do that.

Q. Okay. You told Mr. Weber your concern?

A. Yes.

Q. And Mr. Weber said butt out, correct?

A. Yes, in summary. Mr. Weber said butt out.

Likewise, last week the government got Michael to explain how, on April 20, 2016 (the day the government alleges Schulte stole the Vault 7 files) Schulte first invited Michael to work out at the gym as they normally would, but then didn’t respond for an hour, at which point Michael witnessed — and took a screen cap of — Schulte deleting log files, which means Schulte’s buddy documented in real time as his buddy stole the files.

Q. It is a little difficult, so let’s blow up the left side of the screen. Do you recognize what we’re looking at?

A. Yes.

Q. How do you recognize it?

A. It is a screenshot I took.

Q. What is it a screenshot of?

A. It a screenshot of, in the bottom you can see a VM being reverted and then a snapshot removed.

Q. It is a screenshot of a computer screen?

A. Yes, of my computer screen.

Q. What date and time did you take this screenshot?

A. The date was April 20, and time was 6:56 p.m.

Q. What year was that?

A. 2016.

Michael explained his past testimony to the FBI to Shroff using much the same story (though she used a different screen cap that may be of import).

Q. Uh-huh.

A. I believe I was trying to dig into what the screenshot meant. I was unsure. You know, I took the screenshot because I was concerned, and then I tried to validate those concerns by determining did a person do these reverts, or was this a system action? This is me trying to dig into that. I have debug view open to see if there was any debug messages about reverting the VMs or something. That could have been there already. I don’t know. But specifically this command prompt here that you see, this black-and-white text, the command prompt, I was looking at IP addresses.

Q. And did you do that on the same day, or you did this later?

[snip]

Q. And you don’t see anything before the start time of 6:55?

A. Yeah. I don’t see anything before 6:55 — or I see 6:51.

Q. Right, but you’re saying that even though your vSphere was running, you didn’t see any April 16 snapshot?

A. Yeah. I don’t see an April 16 snapshot.

On redirect prosecutors will have Michael make it clear that the reason he didn’t see an April 16 snapshot is because it had been deleted, making this a damning admission, not a helpful one.

So knowing that the CIA has concerns that Michael isn’t telling the truth about all this doesn’t help Shroff rebut the most damning details of Michael’s testimony: that one of Schulte’s closest friends at CIA tried to intervene to prevent Schulte from doing something stupid before it happened, and the same friend happened to get online and capture proof of it happening in real time.

Nor does it help her rebut another damning detail from Michael’s testimony, a description of how a rubber band fight between him and Schulte led to Michael hitting Schulte physically.

Q. Could you just describe generally what happened.

A. Sure. On that day, Josh hit me with a rubber band, I hit him back with a rubber band. This went back and forth until late at night. I hit him with a rubber band and then ran away before he could hit me back. He trashed my desk. I trashed his desk. And then I was backed up against Jeremy’s desk and Josh was looking at me, kind of coming towards me. And something came over me and I just hit him.

This might seem, if you’re the NYT trying to cull the trial record for glimpses of the banality of CIA cubicle life, like an innocuous detail. But it’s not. Schulte’s defense, such as he has offered one so far, is that he had a real gripe with a colleague, Amol, which escalated into both being moved, him losing his SysAdmin access, which led to his retaliation against the CIA. But what Amol did was take Schulte’s Nerf darts away when they landed on his desk and make verbal — but never physical — attacks against Schulte. Yet Schulte obtained a restraining order against Amol, not against Michael, the guy who really had physically hit him. This rubber band fight with Michael, as juvenile as it seems, actually undermines Schulte’s claim that his complaint against Amol made sense.

Meanwhile, Shroff herself seems to have brought out the detail that led to CIA’s personnel action (and which Judge Crotty argued prosecutors had withheld by not sharing the full CIA notice). On direct, Michael told prosecutor Sidhardha Kamaraju that he stopped digging to find out what had happened because he remembered that he was using a regular user account that — he couldn’t remember — might not have the right permissions to view logs.

Q. Did that seem strange to you that there were no log files there?

A. Yes. At first this was strange to me.

Q. Why did you think it was strange at first?

A. Just because, a system managing this many VMs should have lots of logs.

Q. Did you try to find out why there weren’t any log files there?

A. I did some more digging, yes.

Q. What did you think as a result of your digging?

A. I remembered that this account that I was using was a regular user account, and I couldn’t remember if the regular user accounts had administrative permissions to view logs.

But as Shroff had him explain on cross, Michael told the FBI that Schulte had given him “pseudo creds” to one of his virtual machines. He told them that almost three months before the FBI first asked him about the screen cap showing Schulte delete logs.

Q. No, it’s not correct? What is it then?

A. This is a VM that he would have run on his DevLAN machine.

Q. So it is a virtual machine that he ran on his own DevLAN, correct?

A. Yes.

Q. Okay. So it says “Josh.” Correct?

A. Yes.

Q. Then it says “Michael,” correct?

A. Yes.

Q. And then it says “other,” correct?

A. Yes.

Q. And they asked you about this document, correct?

A. Yes.

Q. And you told them, did you not, that Josh had given you what you turned as a phrase “pseudo creds,” correct?

A. I don’t remember specific wording but, yes. I believe he gave me pseudo accesses to this VM.

[snip]

Q. And then you told them that you probably had root access to the machine to do with it what you wanted, correct?

A. Yes. If I had pseudo creds, then that’s true.

Q. They asked you if you were surprised to find out that you shared a VM with Josh, and you said no, correct?

This is a reference to “sudo” credentials, which is root access. The government response makes it clear that Michael had administrative access, using the “root” password, to the ESXi server, but did not have admin access to the Atlassian suite, which is what Schulte alleged used to steal the documents.

Michael’s “system administrator” privileges were well-documented in the reports of the FBI interviews. Indeed, Michael’s “system administrator privileges” were discussed in at least three different interviews, one of Michael and the other two of Mr. Weber:

  • In a March 22, 2017 interview, Weber stated that “Michael, [the defendant], [Weber], and [Matt] had administrative access to the ESXi server …. A root password was required to directly log into the ESXi server and this password was shared on OSB’s Confluence page that all of OSB had access to.” CLASSIFIED JAS _ 001318 – 001320 ( emphasis added).
  • In a May 26, 2017 interview, Weber stated that he “believed that [Matt] and [Michael] were possibly added as [ESXi] administrators later.” CLASSIFIED JAS 010153 – 010159.
  • In a March 8, 2018 interview, Michael explained the relevant distinction in administrative privileges: “There is a difference between being considered an Atlassian administrator and having the root password for the ESXi server. The root password for the ESXi server was likely needed to create and control VMs, which are frequently used by developers for testing. [Michael] believed he used the ESXi root password to create VMs. The status of being an Atlassian administrator is reflected in the user’s domain credentials. [Michael] is not aware of how to get access to Atlassian as an administrator.” CLASSIFIED JAS _ O I 0514 ( emphasis added).

These reports make clear that Michael never had Atlassian administrator privileges, and thus did not have the ability to access or copy the Altabackups (from which the Vault 7 Information was stolen).

Still, that part of his testimony hasn’t changed. And CIA would have known about all this by August 2017, two years before they put Michael on administrative leave.

And curiously, having had this information for quite some time, Schulte never tried to suggest that Michael could have conducted the theft while using Schulte’s credentials.

Thus far, it looks like the CIA moved Michael to administrative leave not to change his pre-August 2019 testimony — because that hasn’t changed — but out of concern that Michael learned about Schulte’s actions in real time but didn’t tell anyone, not in 2016 when the CIA could have done something about it, nor immediately after the Vault 7 publication. It wasn’t until the FBI discovered the screen cap and asked Michael about it in August 2017 that he told this story.

Q. Is it fair to say, sir, by the time the FBI showed it to you, you had forgotten about the screenshot?

A. Yes.

Q. You had taken it on April 20, 2016, right?

A. Yes.

Michael similarly did not offer up to the FBI that Schulte contacted him after the first Vault 7 publication (presumably in March) until it came up in June 2017.

Q. It was during this meeting that you told them about Mr. Schulte reaching out to you after the leaks had become public; correct? Do you remember that?

A. I remember telling them about him reaching out to me. I don’t remember if it was this specific meeting.

Q. Okay. Take a look at the highlighted portion on page one, okay?

A. Okay.

Q. You told the FBI, did you not, that Mr. Schulte had sounded upset to you that people thought it was he who had done the leaks, correct?

A. Yes. I believe the word was he seemed concerned.

Q. Right. You would be concerned too if somebody accused you of something you didn’t do, correct?

A. Yes.

Q. And you also told them that you essentially blew him off, correct? You didn’t want to engage and talk to him, correct?

A. Yes, I ignored the initial text messages. And then in the phone call, I didn’t want to talk about that subject.

Q. Okay. And at first you didn’t report the fact that Mr. Schulte contacted you, correct?

A. Correct.

Q. And then somehow or the other, the deputy chief of EDG said if somebody’s contacted you, report it. And then you reported it, correct?

A. Correct.

The most likely explanation for CIA’s change in Michael’s personnel status, then (but not the timing), is that Michael did not alert security when he had the opportunity, and then when he discovered that his buddy was the lead suspect for a huge theft of CIA tools, he tried to downplay his knowledge, perhaps hoping to avoid suspicion himself (which, if true, backfired). As Michael said himself in one of his FBI interviews, it sucks when you’re the single guy the prime suspect for a crime has given credentials to his VM, by name.

Q. And then you kind of added that it kind of sucked that your name was on this VM, correct?

A. I don’t remember that.

Q. Take a look at the first paragraph, page two of eight. It sucks. I don’t mean to be rude, but that’s the word it says, “suck,” right?

A. Yes.

Q. That your name was on the virtual machine, correct?

A. Correct.

Q. And that you understood from the FBI that that put you under the microscope, correct?

A. Correct.

So, again, the most likely implication of all this is just that the CIA believes Michael had information about a data breach in real time that he offered unconvincing (and, possibly, technically false) explanations for why he didn’t alert anyone.

But, particularly given the delay in putting him on administrative leave, I wonder whether there’s not something more.

DOJ and CIA clearly suspect Michael is being less than forthcoming about what he witnessed in real time. That doesn’t undermine his value as a witness to having taken the screen shot, but it does raise questions about his trustworthiness to retain clearance at CIA. It does undermine his claims to the FBI, which Shroff portrayed as largely unique among CIA witnesses, that Schulte wasn’t the culprit (which he hasn’t yet explained in the presence of the jury).

That may, however, raise questions about his candor on other answers asked by the FBI, answers that may speak to how Schulte came to steal CIA’s hacking tools in the first place or even whether Michael knew more about it than he knows.

For example, the FBI asked Michael repeatedly about Schulte’s League of Legends habit.

Q. He played a lot of League of Legends or something?

A. Yes.

Q. Some kind of game?

A. Yes, it’s a video game.

Q. A lot of men, people play it; is that right?

A. It has a large user base.

Q. It is some kind of online game where you pretend to have avatars and kill each other online or something like that? Is that right, basically?

A. Yes.

Q. And you played that game, did you not, with Mr. Schulte? A. Yes.

In recent years the government has come to regard gaming communications systems as a means to communicate covertly (which Schulte would have known because his hacking tools targeted terrorists).

They also asked Michael whether Schulte was a “vigilante hacker” by night, and about his Tor usage (which, according to Michael, Schulte didn’t hide).

Q. You remember the FBI asking you if Mr. Schulte was a vigilante hacker by night? Do you remember that phrase they used?

A. I think I do actually, yes.

Q. You told them, no, you didn’t know him to be a vigilante hacker at night?

A. Correct.

Q. You in fact did not know him to be a vigilante hacker at night.

A. Correct. I did not know him to be a vigilante hacker.

This question is particularly relevant given Schulte’s claim, in communicating with a journalist from jail, that he had been involved with Anonymous.

The FBI asked Michael how he came to buy two hard drives for Schulte from Amazon, the same place Schulte bought a SATA adapter they think he used in the theft.

A. I only ever bought him hard drives this one time. But the reason, like, I wouldn’t normally just buy him hard drives, I would have told him to buy it himself. But the reason was there was some deal going on, and so he’s like, if I buy it and then you buy it, we all get the deal and I’ll just pay you back.

Q. Right. It’s normal, right?

A. Yeah.

Q. Yeah. Amazon had a cap on the sale, like everyone could only get two, and he wanted four or something like that?

A. Yes, it was something along those lines.

Of the hard drives the FBI seized from Schulte’s home in March 2017 (PDF 116), the ones he owned the most copies of — the 1TB Western Digital drives — are the ones they suspect were used in the theft because they were overwritten.

The FBI asked about a time when Michael worked over a weekend, when Schulte also happened to be working. Michael first explained he had been working on his performance review, but when he subsequently checked his records, discovered that couldn’t be right. Even though he recognized how unusual it was for him to be working the same weekend as Schulte without knowing Schulte was there, he concluded (like he had about the deleted log files) that it was normal.

Q. They asked you about that weekend because Mr. Schulte also happened to be working that weekend?

A. They mentioned that, yes.

Q. Did you think it was odd that Mr. Schulte was working that weekend or did the FBI think it was odd that Mr. Schulte was working that weekend or both?

A. At first I thought it was odd.

Q. Okay.

A. Just because —

Q. Go ahead.

A. Just because, you know, although it was normal to come in on the weekend, it was less common — rare, I would say, to come in on the weekend. One of us probably would have told each other, you know, we were going to come in on the weekend. But then I looked at my situation, I was like, well, I didn’t tell him I was coming in, so I guess this is normal.

The government may still be trying to figure out precisely when Schulte removed the files on hard drives from CIA — they also asked Michael about that repeatedly — which is why these questions are so important. Among the reasons CIA put him on leave, per the government response, is that he and Schulte left together that night; if Schulte had carried out hard drives that night Michael may have seen them.

The FBI asked about Michael’s role — apparently unplanned — in helping Schulte move to New York.

Q. Then they talked to you about your involvement in helping him move from Virginia to New York, correct?

A. Yes.

Q. They asked you a whole series of questions as to how you came about to help him move, correct?

A. Yes.

Q. And they asked you why you helped him move, correct?

A. I don’t remember specific questions, but I do remember questions about helping him move.

Q. And you explained to them that it was like a coincidence, right? You’d already planned a trip with another friend, he was moving at the same time, he needed help loading up luggage and moving stuff, correct?

A. Yes.

Q. It was not preplanned, right? It just happened, right?

A. Yeah.

Q. You told them that you had already planned to do this with another friend, right?

A. Yes.

Q. And then they asked you about that friend, correct? They asked you what the name of the friend was, correct?

A. Yes.

Q. Then they asked you for your friend’s number, correct?

A. I don’t remember specifically what information they asked for.

The FBI also asked Michael about the stuff he left with him when he moved to New York, which Michael explained was just furniture, though a lot of it.

Q. We’ll come back to that if we need to. Let’s move to the next point. They then asked you if Mr. Schulte had left any stuff with you, correct?

A. Yes.

Q. You told them that he had, correct?

A. Yes.

Q. It was normal, everyday stuff he left with you, correct?

A. I wouldn’t say it’s normal. It was a lot of furniture. So I don’t think that’s normal.

Again, it may well be that, two years after the FBI would have had real questions about Michael’s candor, the CIA concluded they had to reconsider his employment because he could have prevented the theft but did not.

But I wonder whether, by the time DOJ posed these questions anew in August 2019 (which, if I’ve got his interview dates correct, was the only interview he had after the time that Schulte had been formally charged with the theft), their doubts about his other answers had taken on greater significance.

Update: Clarified that the “pseudo” credentials in the transcript are a reference to “sudo” root access.

Update: In a letter opposing any order to share the CIA’s determination to put Michael on paid leave, the government explains the basis for it:

  • Adverse polygraph results
  • His relationship with Schulte
  • His close proximity to the theft of the data and (what appears to be) reason to believe he witnessed more anomalies at the time Schulte was stealing it
  • “Recent inquiries” suggesting Michael may still be hiding information about the theft
  • His “unwillingness to cooperate with a CIA security investigation into his physical altercation with the defendant”

That is, the speculation above seems to be born out. The three questions that leaves are”

  • Why did they put him on leave rather than fire him?
  • Which of the questions above do they think he was not truthful about?
  • Why did they wait until August 2019 to put him on leave?

Joshua Schulte’s Human Graymail Campaign Targets Mike Pompeo

“Graymail” is a term used to describe when a defendant attempts to make a prosecution involving classified information too difficult for the government to pursue by demanding reams of classified evidence that the government either has to water down to make admissible at trial or argue is not helpful to the defense.

As an example, Scooter Libby employed a defense that he didn’t lie to the grand jury about his efforts to expose Valerie Plame, but rather forgot about those efforts, because he was so distracted by everything scary he reviewed in daily Presidential Daily Briefs. He forced the government to substitute a great deal of information from PDBs and almost upended the trial as a result.

It has been clear for some time that accused Vault 7 leaker Joshua Schulte was employing such a strategy, but with a twist. He obviously has been trying to release as much classified information from the CIA as possible, both through legitimate means and via leaking it. But starting last fall, there was a dispute about how Schulte could serve trial subpoenas on CIA witnesses and whether he had to work through prosecutors to do so; Schulte argued the government was trying to learn his defensive strategy by vetting his subpoenas.

The dispute just surfaced again in the form of a government motion in limine to exclude 3 CIA witnesses and require Schulte to provide justifications for a slew of other CIA witnesses he has subpoenaed. At least 63 CIA witnesses have informed the CIA that he has subpoenaed them, and that’s just the ones who have informed the agency.

The Government understands that the defendant has served at least 69 current or former CIA employees with subpoenas in this case. This includes subpoenas for 23 individuals identified in a preliminary witness list the Government provided to the defense as a courtesy on August 16, 2019, which the Court authorized in an Order dated November 26, 2019 (Dkt. 200), and at least 46 additional subpoenas since then. That number reflects those recipients who have informed the CIA’s Office of General Counsel of the latest subpoenas, as required by CIA regulations.1

1 The Government does not know the precise number of subpoenas that the defendant has issued because the Government is only aware of the subpoenas issued to individuals who have reported receiving them to the CIA’s Office of General Counsel.

With respect to this slew of witnesses, the government asks just that Schulte be required to show that they have firsthand knowledge that is relevant to the trial that would not be cumulative.

But with respect to three, the government offers specific objections. The government’s objections to two — a covert field officer and the Center for Cyber Intelligence’s Chief Counsel — seem utterly reasonable. But the government’s objection to a third — Mike Pompeo, who was CIA Director when WikiLeaks published the leaks — is more dubious.

To the extent it’s discernible given redactions in the government’s motion, here are the objections to those three witnesses.

Lisa: Schulte has subpoenaed a woman pseudonymed “Lisa,” a “high up” customer of CIA’s hacking tools. Schulte argues that because CIA officers did not “warn” her about Schulte, it’s proof of his innocence. The government argues that Schulte is trying to call “Lisa” to testify in part to admit into evidence statements that he made to her, which would be hearsay designed to avoid taking the stand himself.

Erin: Schulte wants to call the Chief Counsel of CCI to testify about things she said in an FBI interview about other potential leads to find the culprit behind the theft. Apparently, she raised an off-site event that took place between March 8-10, 2016 that might play a role. According to the original theory of the case, Schulte used an opportunity when everyone else was gone from the office, possibly during that event, to steal these files. But, as the government points out, Schulte didn’t ask “Jeremy Weber” anything about this event when he was on the stand, even though Weber attended it personally. They note Schulte instead wants to ask someone who wasn’t there — Erin — about it. Plus, as the government notes, Erin is the counsel for the victim of this crime, and as such is protected by attorney-client privilege.

Mike Pompeo: Finally, Schulte wants to call Mike Pompeo. The government wants to exclude Pompeo because, during the period when he was a CIA employee as its Director, he had no direct knowledge of the theft.

While Sec. Pompeo was undoubtedly kept informed about the consequences of the defendant’s crimes and the CIA’s response to secure its systems going forward, he–like virtually all similarly situated high-ranking government officials–received that information through briefings and summaries provided by others, which is quintessential inadmissible hearsay, rather than first-hand knowledge of the facts.

Except that’s probably not why Schulte wants to call him. In fact, I predicted Schulte would call Pompeo back in November.

Notably, the government motion invokes the Senate’s recognition that WikiLeaks resembles “a non-state hostile intelligence service.” That may well backfire in spectacular fashion. That statement didn’t come until over a year after Schulte is alleged to have stolen the files. And the statement was a follow-up to Mike Pompeo’s similar claim, which was a direct response to Schulte’s leak. If I were Schulte, I’d be preparing a subpoena to call Pompeo to testify about why, after the date when Schulte allegedly stole the CIA files, on July 24, 2016, he was still hailing the purported value of WikiLeaks’ releases.

Because of the way the government has argued that Schulte’s choice to leak to WikiLeaks is proof he intended to harm the US, it makes then House Intelligence Chair Mike Pompeo’s celebration of WikiLeaks’ publication of the stolen DNC emails — a celebration that took place months after Schulte is alleged to have sent the emails to WikiLeaks — a pertinent issue.

Given what the government has argued, Pompeo might be required to take the stand and admit that he was just being an asshole who was happy to damage the US if it meant his party would benefit when he celebrated the WikiLeaks publication of stolen DNC emails in July 2016. Of course, that’s the last thing he wants to do — and if he did, his boss, who got elected by cheering such damage, might well fire him. Pompeo’s view of WikiLeaks in July 2016 is all the more relevant given that the government appears to be planning to make … something of the Schulte’s response to these very same leaks.

Schulte is clearly engaged in human graymail with this larger request, and I expect Judge Paul Crotty will agree to the government’s demand that Schulte show some particularized value to each of these CIA witnesses.

But given their efforts to treat WikiLeaks as a particularly damaging kind of leak recipient, I think Schulte may be able to make a compelling argument that Pompeo should have to explain his past enthusiasm for WikiLeaks’ publications.

Joshua Schulte’s Hot and Cold Snowden Views

I’ve been tracking the government’s claims that the Vault 7 leaks “relate” to earlier WikiLeaks leaks — including Chelsea Manning’s and Anonymous‘ — Edward Snowden, and Shadow Brokers.

With respect to Snowden, specifically, in a warrant application submitted in 2017 (PDF 150) the government cited Schulte’s search for a specific Snowden tweet on August 4, 2016, just as he started searching for WikiLeaks information.

In a November filing laying out their theory of the crime, the government cited his searches on WikiLeaks and “related” topics in that same time period.

Around this time, Schulte also began regularly to search for information about WikiLeaks. In the approximately six years leading to August 2016, Schulte had conducted one Google search for WikiLeaks. Beginning on or about August 4, 2016 (approximately three months after he stole the Classified Information), Schulte conducted numerous Google searches for WikiLeaks and related terms and visited hundreds of pages that appear to have resulted from those searches. For example, in addition to searching for information about WikiLeaks and Julian Assange, its primary leader, Schulte also conducted searches using the search terms “narcissist snowden,” “wikileaks code,” “wikileaks 2017,” “shadow brokers,” and “shadow broker’s auction bitcoin.” “Snowden” was presumably a reference to Edward Snowden, the former NSA contractor who disclosed information about a purported NSA surveillance program, and “Shadow Brokers” was a reference to a group of hackers who disclosed online computer code that they purportedly obtained from the NSA, beginning in or about August 2016. Indeed, in contrast to the period before August 4, 2016, between that date and March 2017 (when the first of the Leaks occurred), Schulte conducted searches for Wikileaks and related information on at least 30 separate days.

Many of these searches, particularly the Snowden ones, could have been innocuous.

When Schulte’s lawyers tried to complain that Paul Rosenzweig’s inclusion of Manning, Anonymous, and Snowden in his expert testimony on WikiLeaks falsely assumed that Schulte knew of those earlier leaks, the government revealed that in contemporaneous chats, Schulte had commented on both Manning and Snowden.

Moreover, even setting aside the dubious assertion that a member of the U.S. intelligence community could have been completely unaware of WikiLeaks’ serial disclosures of classified and sensitive information and the resulting harm, the Government’s proof at trial will include evidence that the defendant himself was well aware of WikiLeaks’ actions and the harms it caused. For example, WikiLeaks began to disclose classified information Manning provided to the organization beginning in or about April 2010, including purported information about the United States’ activities in Afghanistan. In electronic chats stored on the defendant’s server, the defendant discussed these disclosures. For example, on August 10, 2010, the defendant wrote in a chat “you didn’t read the wikileaks documents did you?” and, after that “al qaeda still has a lot of control in Afghanistan.” In addition, on October 18, 2010, the defendant had another exchange in which he discussed Manning’s disclosures, including the fact that the information provided was classified, came from U.S. military holdings, and that (according to the defendant) it was easy for Manning to steal the classified information and provide it to WikiLeaks. Similarly, in a June 9, 2013 exchange, the defendant compared Manning to Edward Snowden, the contractor who leaked classified information from the National Security Agency, and stated, in substance and in part, that Snowden, unlike Manning, “didnt endanger in [sic] people.”

As I noted, that exchange the very day Snowden came forward might suggest Schulte had a much less critical view of Snowden’s leak than Manning’s.

But that’s not what he told his former CIA colleague, who testified this week under the pseudonym Jeremy Weber. To Weber, Schulte condemned Snowden’s behavior in the strongest terms, arguing Snowden was a traitor who should be executed.

A. I don’t believe so, no.

Q. You don’t remember him ever discussing leakers with you?

A. I, I do remember talking about leakers.

Q. Okay. What do you recall?

A. There was discussion around Snowden.

Q. Okay. And?

A. Schulte felt that Snowden was a — had betrayed his country.

Q. That doesn’t, you know, he seems to have strong opinions on everything. You sure he didn’t say more?

A. He probably would have call him a traitor. Said he should be executed for sure. I don’t remember specific verbiage, but he did express his typical strong opinions.

Q. Right. Then he had those same opinions about Chelsea Manning, correct?

A. Possibly. I don’t remember conversations about Chelsea Manning.

Q. And when he was talking about Snowden, it was clear to you that he strongly believed in the mission of the CIA, correct?

A. Yes.

Q. And he strongly believed that you should do nothing against America, correct?

A. Yes.

Q. And he thought Snowden should be executed, correct?

A. I believe I recall specifically him saying that.

Remarkably, Schulte’s lawyer Sabrina Shroff didn’t seem to expect this answer, even though she made much of the prior interviews Weber had had with what she called prosecutors, but which instead probably reflects having gotten 16 302s for Weber, many of them probably interviews with just FBI agents conducting early interviews as part of the investigation.

Q. You met with each one of these prosecutors, correct?

A. I don’t know if I talked to all of them, but, yes.

Q. You’ve talked to them somewhere between 11 and 15 times?

A. I have no idea what the number was.

Q. March 22, 2017, March 27, April 5, May 8th, May 22, June 1st, August 31. This was all in 2017.

A. Okay.

Q. Do you have any idea how many hours you spent with them in 2017?

A. No, I don’t.

Q. 2018, you met with them on January 12, June 1st, June 11, August 6, November 12, December 12, Any idea how many hours you spent with them?

MR. LAROCHE: Objection.

A. No.

THE COURT: Overruled.

Q. Then you met with them in January. Correct?

A. Yes.

Q. January 14, January 21, and January 29. Correct?

A. Possibly, yes.

Still, if Shroff has 16 302s from Weber and she didn’t know how he would answer this question, whether he and Schulte had ever spoken about Snowden’s leaks, it suggests the FBI and prosecutors never thought to ask someone who had worked side by side with Schulte for 6 years, starting around the same time as the Manning leaks and continuing through the Snowden leaks. Which is pretty remarkable.

The government responded by getting Weber to read from Schulte’s prison notebook where he seemingly advocated for sending top secret documents to WikiLeaks.

Q. Can you please read what the defendant wrote here?

A. “This is a huge wake-up call to U.S. intelligence officers. The Constitution you fight to defend will be” —

MS. SHROFF: Denied.

A. — “denied to you if, God forbid, you are ever accused of a crime. If your government has no allegiance in you, why do you have any allegiance towards your government or associates provided info to the NYT.”

MR. LAROCHE: Can we go up to the next, to the top of this page, please.

Q. Again, is this the defendant’s handwriting?

A. Yes.

Q. Can you please read what the defendant wrote?

A. “Your service in” — defense, maybe, “in” — I don’t recognize that word — “security investigations and pristine criminal history can’t even get you bail. As Joshua Schulte has said, you are denied a presumption of innocence. Ironic, you do your country’s dirty work, but when you — when your country accuses you of a crime, you are arrested and presumed guilty. And” — I don’t — “and” something, “your service. Send all of your secrets here: WikiLeaks.”

The chats from 2013 are not yet in evidence, so the government simply relied on what they had already entered with Weber based off his familiarity with Schulte’s handwriting.

But Shroff will — and already has — argued that you can’t argue the views Schulte expressed after he had been in jail for months were the same ones that motivated his actions in 2016, when he allegedly stole all these files. Weber couldn’t place his conversations about Snowden in time, so his views could have also changed before he leaked the files. But the 2018 prison notebooks cannot be said to reflect Schulte’s views in 2016.

The government seems intent on using Snowden et al to prove a level of mens rea that’s more than they need to prove to get convictions on the Espionage Act charges — that Schulte intended to do harm rather than had reason to know, based off his understanding of classification and the import of those hacking tools, that it would do harm. The varying things Schulte has said about Snowden and others may or may not support that, at least for the Espionage charges tied to the 2016 leaks.

That said, if and when Schulte is sentenced for all this, the testimony that he once claimed to believe leakers like Snowden should be executed may not help him avoid a life sentence.

Calyx Institute has generously funded obtaining these Schulte trial transcripts. Please consider a tax deductible donation to support that effort.

The FBI Downloaded CIA’s Hacking Tools Using Starbuck’s WiFi

One of the most interesting details from the yesterday’s Joshua Schulte trial involved how the FBI obtained the Vault 7 and Vault 8 materials they entered into evidence yesterday. Because the FBI did not want to download the files onto an existing FBI computer (in part, out of malware concerns) and because they didn’t want to use an FBI IP address, they got a new computer and downloaded all the files at Starbucks.

Q. What were some of the parts of that plan?

A. So, one of the parts would be to obtain a separate computer that wasn’t connected, that wasn’t a previous government computer or connected to our network.

Another component was to just use public wi-fi and not a government-attributable internet connection. And the third part would be to find the best way to store this unique piece of evidence in the best way possible.

Q. Let’s talk about each of those steps. I think you said that you got a nongovernment computer, is that correct?

A. Correct.

Q. Why is that?

A. Just so that when we entered it into evidence, we wouldn’t be taking something from the network and essentially putting it aside indefinitely. And then also, we did not want to download information from the internet, which could potentially contain viruses or malware, to an FBI system.

Q. Do you have an understanding of what was contained within the disclosures made by WikiLeaks?

A. I do.

Q. And what is that information?

A. They were information about CIA hacking tools and cyber-exploitation tools.

Q. What, if any, impact did that have on your decision to use a nongovernment computer?

A. Anytime you download something from the internet, you take a risk. And then given what type of information we were going to acquire, we wanted to take an extra — many extra steps of security to maintain the integrity of our systems as well as be able to get the information and then store it properly.

Q. I think the second part of the plan was using public space to download the leak. Is that correct?

A. Correct.

Q. Why didn’t you download the leak from an FBI facility?

A. So, anytime actions on the internet are traceable as well as downloads, and we didn’t want to use an FBI system. And given the type of information we were going to acquire, we didn’t want to use an FBI system to download the information which could then be traced back to us and potentially implicate the IP address and potentially other investigations.

Q. And why would that be problematic for the FBI?

A. So, anytime actions on the internet are traceable as well as downloads, and we didn’t want to use an FBI system. And given the type of information we were going to acquire, we didn’t want to use an FBI system to download the information which could then be traced back to us and potentially implicate the IP address and potentially other investigations.

Q. And why would that be problematic for the FBI?

The explanation is interesting for more than the seeming validation of Starbuck’s WiFi quality.

It’s also interesting given details of timing and download method.

Q. When did you first go to Starbucks to download the leak?

A. In March of 2018.

Q. And how did you download the leak once you were there?

A. I went to the — used an internet browser, went to the WikiLeaks website first. Didn’t really see a quick way to download all the — the large volume of information, so WikiLeaks had also provided a torrent website, which is essentially just — it was about 15 hyperlinks that connected to zip files to download the bulk of the information that they released.

Q. What is a torrent website?

A. It’s a — it looked — just a blank website, but it had 15 hyperlinks, and each time you clicked on one of the links, it asked if you wanted to save the associated zip file. And then I saw there were 15 of those, and then I just downloaded it that way.

Q. And what is a zip file?

A. Zip file is just a way to compress information. So if you want to send a ton of files over an email or kind of website to website, you can use software to compress that information in a more easily storable format.

Q. Why did you go to the torrent instead of downloading it directly from the website?

A. I did — I tried — I perused the website for a little and didn’t see — given the volume of the information, there wasn’t, to my appearance, a good way to capture all of it. And I knew of this — from our investigation I knew of this torrent address, which had been provided by WikiLeaks too, if you wanted to essentially bulk download all the information.

Q. Did you download those zip files to the computer?

A. I did.

Q. And were you able to unzip those zip files?

A. I was.

Q. Were you able to download any of WikiLeaks’s public statements on that computer?

A. I was.

Q. And how did you do that?

A. Via screenshots.

Q. And you said you downloaded the zip files to the computer?

A. Correct.

Q. How long did that downloading process take?

A. Around an hour.

Q. And approximately how much data was found on those zip
files?

A. Approximately 1.4 gigabytes.

One thing this does is explain that it took an hour to download just what got published on WikiLeaks. This will become a critical detail in proving that the files had to have been stolen from inside CIA — basically the “download speed” argument thrown back at the Russian hack denialists.

By revealing that that amounted to just 1.4GB of material, prosecutors have revealed that what WikiLeaks published was just a fraction of the 1TB of material that, per his contemporaneous Google searches, Schulte stole.

The other thing this description reveals is that WikiLeaks did not include Vault 8, the one case (beyond Marble, the obfuscation tool Schulte wrote) where they published source code, in their Torrent download of the files.

Q. Did there come a time when you went back to Starbucks to download additional materials?

A. I did.

Q. Approximately when did that happen?

A. In May of 2018.

Q. And why did you go back to download additional materials?

A. Through the investigation, we determined that the zip files which I had downloaded contained Vault 7, but it did not contain the Vault 8 release, and we wanted to capture the entirety of what WikiLeaks had put out there from March 2017 to November of 2017.

Q. Were you able to download Vault 8 when you went back?

A. I was.

Q. How did you do that?

A. So, it was a lot less information. I was able to just go to the release that WikiLeaks specified as Vault 8 and download the singular files in that way. It’s just — it’s a kind of like right click, save as.

Q. And did you download the Vault 8 leak on the same computer that you downloaded the Vault 7 leaks?

I’m not sure why WikiLeaks wouldn’t include Vault 8, but I find the decision very curious.

Finally, this story is really interesting from an investigative standpoint. The FBI didn’t download the files they were going to enter into evidence in this trial until March and May of 2018, a year after the leak and a year after they identified Schulte as the leaker. Someone — possibly the CIA, which started to investigate the leak even before the first dump — had done a forensic comparison of the first release within days after the leak. The FBI had access to that.

But they went back a year later and prepared the evidence for that trial.

During the entire period of the Schulte prosecution, prosecutors made it clear the case may involve classified information (so his attorneys needed to be able to get clearance). Starting in January 2018, they made clear the leak would be charged.

But — particularly given the child porn charges he faces would have the same kind of prison sentence that the Espionage charges against him will — they could have forgone the trial (I had heard discussion that just the porn would be charged, so it’s possible that was the initial plan). Yes, they want to make an example of him, but the CIA has had to declassify an unbelievable amount of sensitive information to put Schulte on trial. Plus, the cost for prosecuting this crime is enormous. So I wonder whether they didn’t make the final decision to do this prosecution until 2018.

If so, that would parallel the timing of the Julian Assange prosecution in interesting ways. He was charged in December 2017, then indicted in March 2018, literally the same month that FBI obtained the Vault 7 files to enter into evidence.

Methinks Joshua Schulte Doth Protest Too Much over Anonymous

Accused Vault 7 leaker Joshua Schulte — whose trial starts Monday — and the government are having a fight over Paul Rosenzweig’s expert witness testimony again (see this post for the most comprehensive coverage of this dispute). Rosenzweig submitted the Powerpoint he plans to use at trial. Schulte raised objections to the Powerpoint as a whole and to specific slides on it. And the government responded, offering to make some modifications.

The general complaint from Schulte is that the government is using Rosenzweig to introduce otherwise inadmissible hearsay. In one case, the government has agreed to withdraw the claim (a quote from Fred Kaplan, who in my opinion is not particularly reliable with respect to WikiLeaks in any case). The government makes two responses of particular interest. First, that experts are allowed to draw on periodicals to make their conclusions.

Moreover, the defendant’s objection to the introduction of statements from respected news publications ignores that the Rules of Evidence expressly provide for the introduction of such material. Federal Rule of Evidence 803(18) expressly permits the recitation of “[a] statement contained in a . . . periodical . . . if . . . the statement is . . . relied on by the expert on direct examination; and . . . the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.”

After pulling the Kaplan quote, there’s not really much left in the slide deck that quotes journalistic sources, aside from direct quotes about the diplomatic backlash to the State cables. But what the government doesn’t say is that WikiLeaks presents itself as a respected news publication, which if they truly believe is true should allow introducing the WikiLeaks material as such.

But the government wants to prevent that from coming into evidence (even though Schulte warned that calling Rosenzweig would invite it). Indeed, rather than including material from the About page that Schulte would like to include that makes that point,

The excerpts from the WikiLeaks website are taken out of context. If the government is permitted to introduce two sentences from the lengthy “about” page on WikiLeaks.org, the defense would be entitled to introduce other portions of that page, including that WikiLeaks is a “multi-national media organization and associated library,” that it has “contractual relationships” with more than 100 major media organizations, and that it has won numerous media awards. See https://wikileaks.org/What-is-WikiLeaks.html.

The government has offered to pull this slide:

Rather than conceding (or even mentioning) WikiLeaks’ claim to be a respected media outlet, the government says it can introduce the vast majority of the clips from WikiLeaks’ site because they are not assertions at all.

Indeed, other than WikiLeaks’ statements regarding the content of the Vault 7 leaks, the particular statements from WikiLeaks and Assange about which Mr. Rosenzweig will testify are not “statements” or “assertions” such that the rule against hearsay is even applicable.

That’s true. Some of what Rosenzweig plans to submit includes the pre-release hype WikiLeaks gave the Vault 7 release, including the release purporting to show the US had infiltrated French political parties (which it claimed provided justification for the Vault 7 release) and slides emphasizing the spookiness of the release, including this one invoking Chelsea Manning and Edward Snowden in the same breath as Julian Assange.

Other slides capture the instructions WikiLeaks gives to leakers, including to contact WikiLeaks if you have very large submissions (as this was) and to format and dispose of hard drives.

The government will claim Schulte followed some — but not all — of these instructions, in part because he couldn’t dispose of his CIA workstation, and in part because he kept the hard drives and a thumb drive he used to exfiltrate the files.

Mind you, WikiLeaks didn’t warn leakers not to Google everything they were doing as they did it, which is the really damning evidence against Schulte.

In any case, I can’t help but imagine we’ll be seeing this very same slide deck in a trial in EDVA (if Assange is ever extradited), as it shows a continuation of the kinds of activities charged in the existing Assange indictment. Assange’s extradition hearing has been split into two, with the second starting in May, so the government would have plenty of time to add such charges after this trial (which may last a month).

In addition to Rosenzweig’s refusal to include WikiLeaks’ awards (which I would imagine Schulte will bring out on cross in any case, though I honestly wonder why they didn’t bring in their own expert to present such material), one Schulte claim that absolutely has merit is that Rosenzweig should not use the WikiLeaks logo on all these slides.

Each page of the power point has the WikiLeaks logo and name from the WikiLeaks website as if the power point document itself was created by WikiLeaks. This creates a misleading impression and should be removed.

Schulte doesn’t lay out what misleading impression the logo provides, but I would argue it suggests that WikiLeaks endorses some of the content in the slide deck, pertaining to damage or the characterization of certain leaks. The government says this misleading impression can be avoided with an instruction.

With respect to the inclusion of the WikiLeaks logo on the relevant pages of the Demonstrative, WikiLeaks is the subject of his testimony, and it is reasonable to include it as a header. To avoid any confusion, the Government will elicit from Mr. Rosenzweig that the Demonstrative as a whole was prepared as a demonstrative aid for his testimony and was not produced by WikiLeaks.

I vehemently disagree with this stance. Over half of people are visual learners (indeed, the government will rely on visual reenactments to show how they claim Schulte stole the files). The logo on this slide deck ascribes to WikiLeaks things that they would strongly dispute. Particularly given that Rosenzweig is claiming there are three official WikiLeaks channels — the site, the WikiLeaks Twitter account, and Assange’s Twitter account — it is imperative that he differentiate in his presentation between what is official and what is his own analysis.

All of which is to say that, as predicted, calling Rosenzweig will invite a dispute over what kind of organization WikiLeaks really is (which is probably the point).

All that said, I’m frankly stunned that, amidst all the other slides in this presentation — including the one showing convicted leaker Chelsea Manning (whose leaks, the government will show, Schulte viewed as damaging in real time) and admitted leaker Edward Snowden (whom the government will show Schulte was Googling at a key time in August as he was also Googling WikiLeaks for almost the first time) — Schulte objects, again, to the invocation of Anonymous in this slide.

Having not objected that the government will raise Chelsea Manning and not objected that the government will raise Edward Snowden, Schulte is objecting that they’re raising Jeremy Hammond — like Manning, a confessed WikiLeaks source — and a 2010 operation to punish Paypal and others for blacklisting WikiLeaks.

We renew our objections to references to Anonymous, which are irrelevant and prejudicial.

As I have laid out, the way in which Schulte himself adopted the identity of Anonymous as part of his effort to leak to the WaPo from jail links together the three main pieces of evidence of that — his Signal texts with Shane Harris, his ProtonMail account in the name of Anonymous, and his prison notebooks. Schulte’s the one who claimed to be Anonymous, whether or not it’s true (and given the ethics the group adopts about membership, by claiming to be a member he basically is one). Anonymous’ tie to WikiLeaks is clearly admissible evidence based on Schulte’s own actions.

Schulte deems the invocation of Anonymous to suggest “concerted activity” that is more disturbing than simply stealing CIA’s hacking tools and leaking them to WikiLeaks in an effort to burn CIA to the ground out of spite for being made to sit in what Schulte considered an “intern desk” rather than a “prestigious desk with a window,” which is the motive the government says it will present.

The evidence of claimed participation in a shadowy, underground group infamous for cyber-attacks and dumping on WikiLeaks is unduly prejudicial as it suggests concerted activity of a type even more disturbing than what is charged.

The evidence suggests that Schulte adopted at least three personalities to leak from jail, deliberately attempting to present the illusion of concerted activity. Given the concerted concern about Anonymous amid all the equally damning references, perhaps some of Schulte’s imaginary friends aren’t actually imaginary?

As I disclosed in 2018, I provided information to the FBI in 2017. The government recently stated publicly that matters on which I shared information are related to Schulte. Aside from two press inquiries, I have not spoken with the government about Schulte.

Joshua Schulte’s Three Lawyer Monte

For at least five months, accused Vault 7 leaker Joshua Schulte has been trying one after another ploy to avoid or delay his trial next month. But his latest move isn’t even very clever.

The problem, for Schulte, is that after he submitted a pro se filing attacking the government’s case that included classified information, his lawyers tried to get him to stop by telling him to write his complaints in notebooks instead. He did so and marked the notebooks “Attorney-Client,” but included things that could in no way be considered as such (such as passwords to Proton Mail accounts he used to email people outside of jail). So after the government discovered he had a cell phone in jail and searched his cell, they discovered the notebooks, where he had basically confessed to his past and ongoing crimes. As the government wrote in a later motion, that information includes:

(i) admissions by the defendant relating to his disclosure of classified information to WikiLeaks (such as the identification of information provided to WikiLeaks that has not yet been disclosed by WikiLeaks); (ii) admissions by Schulte with respect to his plan to disseminate additional classified information illegally from the MCC (such as his declaration of a so-called “information war” and notations of plans to, for example, schedule postings on various social media accounts he created from jail); (iii) false exculpatory statements; (iv) evidence connecting Schulte to contraband cellphones and electronic communications accounts (such as notations to install encrypted messaging applications on contraband cellphones or to delete “suspicious emails” from covert accounts used by Schulte while at the MCC); and (v) writings prepared for public dissemination that include classified information (such as draft tweets written by the defendant as one of his alleged former CIA colleagues who claimed to be able to exonerate the defendant and who recounted information about CIA activities to “authenticate” the author).

Since then, he has been trying to make that evidence unavailable for trial.

First, last June, he tried to suppress it (and the Proton Mail emails accessed with the passwords he stored in there) on Fourth Amendment grounds, which Judge Paul Crotty denied last October, in part because the FBI’s use of a wall team to sort out the non-privileged material demonstrated good faith.

Then, in August, Schulte’s lawyers informed the judge they had provided some kind of advice that led him to believe he could write down classified information in his prison notebooks, and asked that the judge sever the charges tied to his attempts to leak classified information from jail from the charges tied to his alleged leak of the Vault 7 documents to WikiLeaks, something that would have made the MCC admissions of guilt unavailable for his main trial. In September, Judge Crotty denied that motion, pointing out that the lawyer who gave the purportedly bad advice is not on Schulte’s trial team and so could testify.

Then, in October, his lawyers asked to be relieved of defending Schulte altogether, or at least asked for the judge to appoint a Curcio counsel to determine whether there is a conflict. On November 6, Judge Crotty appointed a Curcio counsel.

Meanwhile, also in October, Schulte’s lawyers said they were buried preparing for trial and needed help and asked that he appoint another lawyer to help them, James Branden, which Judge Crotty immediately did. That soon looked like a ploy, because Branden — who had said he’d be able to handle the schedule — wrote a letter in November asking for a six month adjournment saying he couldn’t handle the schedule. In the letter, he said he had not, in the interim month, met with Schulte. He also said he couldn’t elaborate on the need for a delay until December 9 because he was on vacation until then. Crotty was none too impressed with that, and denied that motion in December (though extended the trial date by three weeks.

On December 13, Schulte’s public defenders wrote the judge and said they decided their advice to Schulte meant they had to be relieved on ineffective assistance of counsel grounds.

On December 18, they held the Curcio hearing, and Judge Crotty (who had previously described ways to get the exculpatory evidence admitted at trial) denied the request to be relieved.

Last week, Schulte’s public defenders wrote Judge Crotty saying they could no longer defend Schulte because it would mean providing ineffective counsel, and also noting that they may have engaged in misconduct, meaning that Schulte’s decision to present the evidence would reflect badly on his trial lawyers. (Again, the lawyer who gave the bad advice will not be his trial lawyer.)  The next day they wrote against stating that, even though to adopt this ineffective assistance of counsel defense, he’d have to waive privilege on the current set of lawyers, he did not waive privilege.

The government responded to this second letter laying out all the case law that says if you’re going to argue ineffective counsel, you need to share what the bad advice is. In it, they called bullshit on Schulte’s claim that he really relied on his lawyers’ counsel.

For example, the Government has described to the defense how, if the defendant offered his counsel’s testimony, the Government would likely rely on recorded prison calls in which the defendant criticized defense counsel’s advice, including, for example, calls in which the defendant stated that he would “go around” Ms. Shroff to disclose information to the media, despite her objections to this strategy.

They also note that Schulte claims he needs this testimony to prove his innocence but is willing to wait years, under SAMs, to get it.

The Curcio counsel, Sean Maher, wrote as well last week, repeating that he believes the public defenders need to be relieved, because he can’t advise Schulte on whether or not he should call both lawyers to testify, thereby waiving privilege and necessitating getting new lawyers. He argues Schulte needs new lawyers to decide whether he needs to jettison his current lawyers. He ends his letter by explaining that he doesn’t have enough information to advise Schulte on that point.

Only conflict-free counsel who has a full sense of the case — the classified and unclassified discovery, the complicated forensic information, and knowledge of what other witnesses, including rebuttal witnesses, might say — should advise Mr. Schulte on this matter.

What seems to have dropped out of this conversation is that Schulte has another lawyer who can’t fathomably be said to have this conflict, James Branden, who in spite of his December vacation has nevertheless had over two months to get up to speed, the amount of time he originally said it’d take to prepare for trial. Branden is in a position to decide whether Schulte’s claim he got bad advice and so did what he said on recorded jail house conversations that he would ignore he wouldn’t do will hold with a jury.

Schulte is pretending he has two sets of lawyers: the ones he claims gave him shitty advice, which led him to try to record what he must be preparing to claim is just an imaginary Information War entirely within the bounds of his prison notebooks, and the Curcio counsel appointed to tell him — absent any context — whether that means they can’t represent him anymore.

But he’s got a third lawyer who has curiously dropped out of this discussion, Branden, who hasn’t signed his name to a filing since he asked for an adjournment (though he attended the Curcio hearing, so would be competent to provide the kind of advice that Maher says no one is available to provide).

Likely, if asked, Branden would note that claiming his lawyers told him to commit everything to his prison notebooks wouldn’t much help him (even ignoring his Non-Disclosure Agreements that commit him alone to protecting classified information), because Schulte allegedly shared classified information in public documents outside of his prison notebooks, in defiance of the advice the government says he got and ignored from Shroff.

I guess Schulte is hoping if he moves the three cards in his hand around fast enough, Judge Crotty — who he has attacked in a pro se filing Shroff probably told him not to file — won’t see that there are actually three and not two cards in his hand.

Three lawyer monte, with all the lawyers paid for by taxpayers, ostensibly in the name of a fair defense.

The WikiLeaks Conspiracy: The Government Prepares to Argue WikiLeaks Has Always Been an Organized Crime Syndicate

Last June, I ran into some folks who remain very close to Julian Assange. One of them scheduled dinner with me solely to scold me for writing honestly about the things that WikiLeaks had done in the past three years rather than focusing exclusively on the EDVA Espionage indictment charging Assange for things he did almost a decade ago.

The person complained that my factual reporting on 2016 election and — especially — the Vault 7 leak (I think this was the offending post) would undercut whatever unanimity there was among journalists (unanimity that I joined) that the existing charges against Assange were a dangerous precedent for actual journalists. Reporting true details about shitty things Assange had done in recent years on my humble little blog, it was claimed, would dangerously and singlehandedly undercut Assange’s defense.

No, I did not much appreciate the irony of being criticized for accurate reporting by someone purportedly defending journalism.

But I also thought the concerted effort to suppress what Assange had done recently, while perhaps necessary to generate the statements of support from journalists that were forthcoming, was short-sighted, because it misrepresents what Assange is actually facing. The grand jury in EDVA remains (as far as we know) active. The government specifically said, in June, that it needed Chelsea Manning’s testimony for subjects or charges not yet charged and said such charges were not time barred (as would be true of any ongoing conspiracy).

As the government’s ex parte submissions reflect, Manning’s testimony remains relevant and essential to an ongoing investigation into charges or targets that are not included in the superseding indictment. See Gov’t’s Ex Parte Mem. (May 23, 2019). The offenses that remain under investigation are not time barred, see id., and the submission of the government’s extradition request in the Assange case does not preclude future charges based on those offenses, see Gov’t’s Supplement to Ex Parte Mem. (June 14, 2019).

Since then, Jeremy Hammond has joined Manning in believing he can wait out whatever EDVA has in store.

Most of all, Joshua Schulte’s prosecution for the Vault 7 leak — a leak almost no WikiLeaks supporters I know will offer an enthusiastic defense of — kept chugging along. In recent weeks, Schulte has submitted a number of questionable filings claiming the dog ate his homework so he can’t be prepared in time for his trial:

  • The attorney appointed after defense attorneys said they needed one more attorney to prep for trial in time said he couldn’t prep for trial in time, but can’t talk about why not until he’s done with a week-long vacation
  • The government’s (admittedly long) motion in limine repeating details the government disclosed several times before took the defense by surprise
  • The defense can’t make a constitutional challenge to CIPA generally until the judge rules on CIPA specifically (this is the one arguably reasonable request)
  • The defense had no idea the government wasn’t claiming Schulte downloaded a terabyte of data onto a thumb drive that can’t hold that terabyte even though the government told the defense that a year ago and then again in November

But as of now, Schulte’s trial is due to start on January 13, a month and a half before Assange’s first substantive extradition hearing starting on February 25.

And at that trial, the government is preparing to argue that Schulte intended to harm the United States when he leaked these files to WikiLeaks, a stronger level of mens rea than needed to prove guilt under the Espionage Act (normally the government aims to prove someone should have known it could cause harm, relying on their Non-Disclosure Agreements to establish that), and one the government has, in other places, described as the difference between being a leaker and a spy.

To make that argument, the government is preparing to situate Schulte’s leaks in the context of prior WikiLeaks releases, in a move that looks conspicuously like the kind of ongoing conspiracy indictment one might expect to come out of the WikiLeaks grand jury, one that builds off some aspects of the existing Assange indictment.

In a motion opposing Schulte’s effort to disqualify Paul Rosenzweig as an expert witness (see this post for background), the government lays out some of the things it plans to have Rosenzweig explain to the jury. Some of this is dangerous criminalization of security, most notably tying WikiLeaks’ endorsement of Tor and Tails to Schulte’s own use of it.

But some of it fleshes out the scope the government laid out when it first requested to call Rosenzweig.

The Government recognizes the need to avoid undue prejudice, and will therefore limit Mr. Rosenzweig’s testimony to prior WikiLeaks leaks that have a direct relationship with particular aspects of the conduct relevant to this case, for example by linking specific harms caused by WikiLeaks in the past to Schulte’s own statements of his intent to cause similar harms to the United States or conduct. Those leaks include (i) the 2010 disclosure of documents provided to WikiLeaks illegally by Chelsea Manning; (ii) the 2010 disclosure of U.S. diplomatic cables; (iii) the 2012 disclosure of files stolen from the intelligence firm Stratfor; and (iv) the 2016 disclosure of emails stolen from a server operated by the Democratic National Committee.

For example, it will tie WikiLeaks’ failure to redact the identities of US sources in Chelsea Manning’s leaks — something charged in counts 15 through 17 of Assange’s indictment — to Schulte’s behavior. It sounds like Rosenzweig will explain something I’ve alluded to: WikiLeaks apparently left the names of some of Schulte’s colleagues unredacted, which given WikiLeaks’ big show of redacting the files could only have been intentional and would have required coordination with Schulte to do.

Mr. Rosenzweig will testify that WikiLeaks does not typically redact the information that it publicly discloses (even when that information may reveal confidential sources). The Government will introduce evidence, however, that the Classified Information was purportedly redacted when posted online. Mr. Rosenzweig’s testimony will help the jury understand the significance of WikiLeaks’ unique claim to have redacted the Classified Information, including, for example, the period of delay between when Schulte disclosed the Classified Information to WikiLeaks (in or about the spring of 2016) and when WikiLeaks first announced that it would begin to disclose the Classified Information (in or about the spring of 2017). [my emphasis]

One reason Assange made a show of redacting the identities was because he was attempting to extort a pardon at the time, so he had to appear willing to negotiate with DOJ. But it seems likely Rosenzweig will explain that that was just a show and that even as WikiLeaks was making that show it was also ensuring that other CIA SysAdmins might be targeted by foreign governments.

Likewise, Rosenzweig will tie the embarrassment caused by Manning’s releases to Schulte’s own intent to cause damage with his self-described Information War against the US.

The Government intends to introduce evidence (including his statements) of Schulte’s knowledge of Manning’s leak and the need for the U.S. government to maintain secrecy over certain information. Furthermore, the Government also plans to introduce evidence of how Schulte, from the Metropolitan Correctional Center (the “MCC”), declared an “information war” against the United States, pursuant to which he intended to publicly disclose classified information and misinformation, including through WikiLeaks (such as the Fake FBI Document), for the purpose of destroying the United States’ “diplomatic relationships,” and encouraged other U.S. government employees to disclose confidential information to WikiLeaks. Mr. Rosenzweig will explain to the jury generally information other leakers have transmitted to WikiLeaks that the organization published and how foreign governments reacted negatively to WikiLeaks’ disclosure of that information—leading, for example, to the highly-publicized resignation of the U.S. Ambassador to Mexico.

Effectively, the government will argue that if you want to conduct an Information War on the US, you choose to leak to WikiLeaks and ensure it will be as damaging as possible. Whatever the circumstances of Manning’s leaks, this uses Schulte’s stated desire to damage the US to retroactively taint what WikiLeaks has claimed in the past was mere journalistic exposure of wrong-doing. That doesn’t necessarily change the First Amendment danger in charging Assange. But it surely attempts to undercut WikiLeaks’ brand as a journalistic entity.

Most interestingly, the government will point to a claim Schulte made to a journalist while writing from jail (one that is plausible given some of his past public postings, but if true, is an unfathomable indictment of CIA’s vetting process) that he once belonged to Anonymous. Rosenzweig will tie this to Anonymous’ decisions to leak the Stratfor cables to WikiLeaks in 2012.

As described in the Government Motions in Limine, in encrypted communications from one of the Contraband Cellphones, Schulte (posing as a third person) stated that he had previously been a member of Anonymous, a group of online hacker activists. Mr. Rosenzweig will testify about how, in 2012, Anonymous and WikiLeaks worked together to release information from a private U.S. intelligence firm.

Of course, Anonymous didn’t just leak the Stratfor cables to WikiLeaks. They also shared files stolen during the Arab Spring and the Syria files. The latter leak provides one of the earliest indicators where the process by which WikiLeaks obtained files may have involvement of Russia, because somehow a file that would have been very damning for Russia never got published. But both would make the story the US wants to tell more complex (though still potentially consistent).

In any case, the focus on Stratfor may explain why the government is holding Jeremy Hammond in contempt to try to get him to testify in the EDVA grand jury, particularly if the government has reason to believe that Schulte was part of that hack.

Finally, the government will use Rosenzweig to explain how, in the wake of the DNC leak and at a time he was in a huff at his CIA bosses again, Schulte did … something in August 2016.

The Government intends to introduce evidence that Schulte transmitted the Classified Information to WikiLeaks in the spring of 2016, that WikiLeaks did not begin to disclose the Classified Information until March 2017, that Schulte was angry with CIA management in August 2016 over a performance review he received, that Schulte’s protective order against Employee-1 was vacated in August 2016, and that, around that same time (i.e., in August 2016), Schulte began to conduct extensive research online about WikiLeaks. The Government intends to offer evidence relating to those searches, including the specific queries Schulte conducted. Schulte has argued in his writings that his August 2016 research was related to WikiLeaks’ August 2016 disclosure of information stolen from a Democratic National Committee server (the “DNC Leak”). Mr. Rosenzweig will testify about the DNC Leak, including the type of information that WikiLeaks actually disclosed in connection with that leak, which will demonstrate why Schulte’s WikiLeaksrelated searches include queries that had nothing to do with the DNC Leak

Side note: Part of the media blitz Assange did in the wake of the DNC leaks included a claim to Chuck Todd that if WikiLeaks ever received information from US intelligence, they would publish it.

Well, it’s a meta story. If you’re asking would we accept information from U.S. intelligence that we had verified to be completely accurate, and would we publish that, and would we protect our sources in U.S. intelligence, the answer is yes, of course we would.

No one else would have, but Schulte would presumably have recognized this as a nod to him, reassurance provided on heavily watched TV that WikiLeaks was progressing towards releasing the files Schulte had leaked. Which is why the likelihood that Schulte also stole a single file reflecting CIA collecting information on who might win the 2012 French presidential election, which WikiLeaks subsequently falsely portrayed as proof that CIA had infiltrated political parties in France rather than asked well-placed sources for readily available information, is of particular interest.

The government, however, is going to point to other Google searches by Schulte from August 2016 that lump Edward Snowden and Shadow Brokers in with WikiLeaks.

For example, in addition to searching for information about WikiLeaks and Julian Assange, its primary leader, Schulte also conducted searches using the search terms “narcissist snowden,” “wikileaks code,” “wikileaks 2017,” “shadow brokers,” and “shadow broker’s auction bitcoin.” “Snowden” was presumably a reference to Edward Snowden, the former NSA contractor who disclosed information about a purported NSA surveillance program, and “Shadow Brokers” was a reference to a group of hackers who disclosed online computer code that they purportedly obtained from the NSA, beginning in or about August 2016.

I have long wondered whether Vault 7 was not a free-standing leak but instead part of the Shadow Brokers operation.  This seems to suggest the government knows they are. If that’s right, it would suggest that in the period when the government was trying to figure out precisely what Russia had done in 2016, both the NSA and CIA’s ability to spy on Russia (and other countries) would have been been deliberately burnt to the ground. And if Schulte knowingly participated in that — in an effort to ensure that the US would struggle to even learn what Russia had done in 2016 — it would explain why they’re planning on arguing he is more of a spy than a leaker.

Which would, in turn, explain why they took the first steps towards arresting Assange as FBI started putting together the evidence needed to charge Schulte on these leaks in 2017.

Let me be clear: I’m not saying I’m sure they’ll fill all these details in a superseding Assange indictment (though the government said it could not provide Assange the underlying evidence even for the 2010 charges until around Christmas — at which point Schulte will have gone through the CIPA process of declassifying classified information for use in his defense, and they could add charges at least until the February 25 hearing). It may still be that the government won’t want to get into the level of classified detail they’d need to to flesh out that case, particularly if they can’t coerce Manning and Hammond to cooperate.

I’m also not making a normative judgment that this eliminates the very real problems with the way Assange is charged now. Without seeing the government’s case, it’s too soon to tell.

What I’m trying to do is lay out what the government seems to be preparing to argue about WikiLeaks in the Schulte case. No doubt this will get me invited for another stern scolding at dinner, but it’s time to stop pretending Assange is being prosecuted for the understanding of WikiLeaks that existed in 2010. By all means, people can and will still defend Assange for taking on an imperialist America. For much of the world (though presumably not among any Five Eyes governments, including Assange’s home country), that still makes him an important dissident taking on a superpower. There is some merit to that stance, but it also requires arguing that superpowers shouldn’t have democratic elections.

But the government is preparing to argue that, after helping Russia tamper in America’s election, WikiLeaks deliberately burned some of CIA’s collection abilities to the ground, making it harder for the US to figure out how Russia did so. The government is preparing to argue that such actions are consistent with what WikiLeaks has been up to since 2010.

I’ve been expecting we might see an indictment alleging WikiLeaks and its associates were and remain engaged in an ongoing conspiracy (a possibility that, if Manning and Hammond’s lawyers haven’t warned them about, they are being utterly negligent, because the government could well argue that obstructing this investigation by refusing to provide immunized testimony is an overt act furthering the conspiracy).

The citations the government has used to justify Rosenzweig’s testimony are heavily focused on terrorism and mob cases (United States v. Farhane and United States v. Mustafa, which are al Qaeda cases; United States v. El Gammal, which is an ISIL one, and United States v. Rahimi, the self-radicalized Chelsea bomber; United States v. Lombardozzi and United States v. Locascio which are Gambino cases, United States v. Amuso, a Lucchese case), including one RICO case. That’s undoubtedly why Schulte’s lawyers really want Rosenzweig’s testimony excluded, to avoid having WikiLeaks treated like an organized crime syndicate.

But if the government is preparing to claim that WikiLeaks worked with Schulte not only to obtain files it tried to use to extort a pardon but then released them in a way that would hurt America’s efforts to respond to Russia’s 2016 operation, that’s a pretty compelling analogy.

Update: After comments from Stefania Maurizi, I’ve rephrased how I described what happened with the Syria Files. I want to be clear the statement in the post was not based on what I’ve been told by reliable sources about the process by which those files got shared with WikiLeaks.

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

Government Confirms that WikiLeaks Didn’t Release All the Vault 7 Files

Accused Vault 7 hacker Joshua Schulte’s lawyers seem really intent on preventing the government from using evidence obtained while he was using a contraband phone at MCC in his trial for the main leak of CIA’s hacking tools to WikiLeaks.

They’ve already challenged warrants obtained using evidence found in notebooks marked as attorney-client privileged information but then released after a wall team review; in my NAL opinion, that challenge is the most likely of any of his motions to succeed. Last week, they also moved to sever the two MCC charges from the main Espionage ones (they’ve already severed the child porn and copyright violation charges from the Espionage ones), explaining that two of his attorneys, including his lead attorney Sabrina Shroff, would testify to something about discussions from May and June 2018 that would address his state of mind when he leaked and tried to leak CIA materials later in 2018.

To defend against the government’s allegations, Mr. Schulte would call two of his attorneys—Matthew B. Larsen and Sabrina P. Shroff—to present favorable testimony bearing on his state of mind.

This pertains, in some way, to the government’s claim that Schulte wrote classified information in his prison notebooks as part of a plan to leak it.

The government has indicated that its evidence on the MCC Counts will include portions of notebooks seized from Mr. Schulte’s cell, in which he allegedly documented his plans to transmit classified information.

[snip]

Defense counsel expects that at trial, the government will seek to introduce excerpts of Mr. Schulte’s writings in his notebooks as evidence of his specific intent to violate the law.

If they succeed at severing count four from the main Espionage charges, it might make it harder to link what Schulte was doing in jail with what he was allegedly doing over two years earlier. As I noted when Schulte’s team first challenged the MCC warrants, it’s clear why they’re doing this: the MCC evidence indicates he had an ongoing relationship with WikiLeaks.

The FBI investigation proceeded from those notebooks to the WordPress site showing him claiming something identical to disinformation he was packaging up to share with WikiLeaks. They also got from those notebooks to ProtonMail accounts where Schulte offered to share what may or may not be classified information with a journalist. The reason why the defense is pushing to suppress this — one of the only challenges they’re making in his prosecution thus far — is because the stuff Schulte did in prison is utterly damning and seems to confirm both his familiarity with WikiLeaks and his belief that he needed to create disinformation to claim to be innocent.

The government, in a fairly scathing response to Schulte’s motion to sever the trials, confirms that it believes the MCC charges include evidence that help support the main charges on leaking the files to WikiLeaks (what the government calls CIA counts). The government had a “reverse proffer” on December 18, 2018 and laid out all the evidence against Schulte, including pointing out that (as I described) the material seized from MCC helped prove the CIA charges.

About six weeks later, on December 18, 2018, the Government met with defense counsel (the “Reverse Attorney Proffer”). At this meeting, the Government described for defense counsel the theory of the Government’s case with respect to the charges in the Second Superseding Indictment, and answered defense counsel’s questions about the charged counts, including the new counts. The Government also explicitly noted during the Reverse Attorney Proffer that it believed that the material recovered pursuant to the MCC Warrants was relevant evidence with respect to not only the MCC Counts, but also the CIA Counts.

Having laid out the interconnectedness of these charges, the government then explains at some length why having different attorneys defend Schulte in the CIA and MCC counts would cause delays in both, because replacement counsel would need to familiarize themselves with both sets of charges. Now, as I noted, there’s unclassified information that Schulte clearly shared with WikiLeaks both before and while he was in jail. But right there in the middle of this passage is the revelation that Schulte identified classified information in his prison notebooks that he shared with WikiLeaks but that WikiLeaks has not yet published.

Regardless, Schulte’s proposal—further severed trials and new counsel for the MCC Counts—would neither prevent trial delay nor resolve the ethical issue. Rather, it is likely to exacerbate both. First, appointing new counsel on the MCC Counts is likely to cause, rather than prevent, further trial delay and would complicate Schulte’s defense across all counts. Because of the interconnectedness of the MCC Counts and the CIA Counts, as well as the child pornography and copyright counts, new counsel would need to become familiar with the evidence as to all counts in order to appropriately advise and defend Schulte. Indeed, new counsel might determine that the best course with respect to the MCC Counts would be to seek to negotiate a plea that resolves those charges along with some combination of the CIA Counts, child pornography counts, and/or copyright count. Those negotiations could not occur until new counsel was fully familiar with all aspects of the case. This would take a substantial amount of time given that new counsel would have to be cleared and that a substantial portion of the evidence is classified and, thus, must be reviewed in sensitive compartmented information facilities. Moreover, even after new counsel became familiar with the case, it is possible that new counsel might have different views than current counsel concerning a variety of trial strategy decisions, including, among others, the desirability of Schulte testifying, which could impact one or all of the severed trials and would need to be coordinated among all of Schulte’s attorneys. As a result, trial on the CIA Counts could not proceed until new counsel for the MCC Counts was familiar with the entire case. In short, the appointment of new counsel would likely further complicate this case and lead to substantial delays.

Second, severing the CIA Counts from the MCC Counts also would not resolve the purported ethical issue. Even if the trials were severed, evidence of Schulte’s prison conduct, including the Schulte Cell Documents, would still be admissible at the trial addressing the CIA Counts as both direct evidence and Rule 404(b) evidence of those crimes. For example, in the Schulte Cell Documents, Schulte specifically identifies certain classified information that was provided to WikiLeaks but which WikiLeaks has not yet published, which is direct evidence that Schulte transmitted classified information to WikiLeaks as charged in the WikiLeaks Counts. Similarly, Schulte’s prison conduct is also admissible as to the WikiLeaks Counts for a variety of Rule 404(b) purposes including to show, among other things, consciousness of guilt, motive, opportunity, intent, absence of mistake, and modus operandi.5

5 Similarly, during a trial addressing the MCC Counts, the Government would introduce evidence relating to the CIA Counts as direct evidence to complete the story of the crime and, in the alternative, as Rule 404(b) evidence. For example, evidence related to the CIA Counts would establish Schulte’s motive for committing and ability to commit the MCC Counts, as well as his knowledge that the information he unlawfully transmitted was classified national defense information. As a result, even a trial on the MCC Counts would entail introduction of much of the evidence from the Espionage Trial. [my emphasis]

The government doesn’t say whether it knows that WikiLeaks received this information because it found it after seizing Julian Assange’s computers or some other way.

The detail that Schulte referred to information that the government apparently knows WikiLeaks received — but that WikiLeaks has never published — is interesting for an entirely different reason.

On top of asking to sever two more charges, Schulte is also asking for a delay in trial, from November to January. The government says it’s cool with that delay, so long as there won’t be any further delay.

The Government understands that the defendant is seeking to adjourn the Espionage Trial until January 13, 2020. Although the Government is prepared to start trial as scheduled on November 4, 2019, the Government does not oppose the defendant’s adjournment request with the understanding that the defendant will not seek another adjournment of the Espionage Trial absent exceptional and unforeseen circumstances[.]

This story on Jeremy Hammond’s subpoena in EDVA clarifies something about which there has been a great deal of confusion. The US can still add charges against Julian Assange at least until his extradition hearing, which starts on February 25.

Nick Vamos, former head of extradition at the Crown Prosecution Service in England, said the treaty between the two countries still allows for the U.S. to add charges to the Assange case, but that will become more difficult and problematic for the American prosecutors as they get closer to the scheduled extradition hearing in February.

The discussion today has focused on the Stratfor hacks that Hammond is serving time for. Because the five year statute of limitations for CFAA would normally have tolled by now, they are likely pursuing some kind of conspiracy charges, for a conspiracy that continued past 2012.

But given the seeming cooperation while Schulte was in jail and the knowledge that WikiLeaks sat on — or used — one of the other files provided by Schulte, if the government is planning on more conspiracy charges, chances are good that Vault 7 will eventually be included in them.