FBI – R&R – Reachout and Rebuild

Trump backs permanent snooping powers he once criticized as abusive

David Posnett — Tue, 13 Jun 2017 14:37:11 +0000

We Have Good Reasons to Be Concerned About the Impact of Section 702 on the Criminal Justice System

Posted on Just Security

By Sarah St.Vincent
Wednesday, June 7, 2017

In a recent analysis for Just Security, I explored some concerns about how warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) may be undermining the U.S. criminal justice system. While many of those concerns would apply to the government’s potential reliance on warrantless Section 702 data as part of any criminal probe, I expressed a worry that such data might conceivably be making its way into investigations of relatively low-level suspected offenses (for example, suspected drug-related violations).

Partly in reply to Dean Asha Rangappa’s letter to the editor, I would like to expand on a few of the problematic practices I had mentioned—all of which should be at the forefront of legislators’ minds during the upcoming debate about whether Section 702 should be renewed before its scheduled sunset at the end of this year. These include “incidental”collection, warrantless querying of Section 702 data by the FBI, and parallel construction.

“Incidental” collection: A “subset” can still be a large pool of private information—including on U.S. persons

Under the law, the executive branch must “target” non-U.S. persons outside the United States when it carries out warrantless monitoring of Internet or telephone communications under Section 702. These targets need not be suspected of any wrongdoing: as long as “a significant purpose” of the surveillance is to obtain “foreign intelligence information,” a term FISA defines broadly, any non-U.S. person outside the country’s borders is fair game. In 2016, the government had an estimated 106,469 such targets—a number that had steadily increased for several years. Foreign Intelligence Surveillance Court (“FISC”) amicus, Amy Jeffress, who served as an impartial adviser, has confirmed that “not all Section 702 targets are international terrorists,” and the executive branch has yet to explain who else might be singled out. Then-chair of the Privacy and Civil Liberties Oversight Board (“PCLOB”) David Medine told Congress in 2016 that a Section 702 target could be “anyone with foreign intelligence value,” including, for example, “a completely innocent businessman.”

While this monitoring has considerable human rights implications for the foreigners who are targeted, it is likely that the dragnet is also capturing large numbers of U.S. persons’ communications. The government likes to describe this seizure of Americans’ private correspondence under Section 702 as “incidental.” However, as PCLOB has pointed out, “[s]uch ‘incidental’ collection … is not accidental, nor is it inadvertent.” FISA requires that Section 702 surveillance be “reasonably designed” to minimize such collection, but it happens anyway. The President’s Review Group on Intelligence and Communications Technologies even suggested in 2013 that the executive branch may have an incentive “to use section 702 in an effort to gather evidence against United States persons in a way that would circumvent the underlying values of both FISA and the Fourth Amendment.”

This pool of warrantless Section 702 information on U.S. persons is probably sizeable. Medine testified explicitly that “the government is collecting large quantities of Americans’ communications” under the law. In her FISC amicus brief, Jeffress referred to “a potentially very large … scope of incidental collection of communications between lawful targets and U.S. persons that are not the type of communications Section 702 was designed to collect”—including communications with “no foreign intelligence value.” These statements indicate that while it is probably literally true that U.S.-person information is a “subset” of the data gathered under Section 702, this subset may be substantial and may include such troublingly private content as—in Medine’s words—“family photographs, love letters, personal financial matters, discussions of physical and mental health, and political and religious exchanges.”

Therefore, I do not share Dean Rangappa’s confidence that warrantless Section 702 data is unlikely to include information on “[w]holly domestic” U.S. crimes—let alone crimes (such as drug-related offenses) that the government may regard as having some kind of foreign nexus, however remote. The fact is that when a government grabs untold reams of private communications belonging to thousands or millions of people, there is simply no knowing what kind of information might be in there, available to be searched.

Once the National Security Agency (“NSA”) has obtained data through Section 702, including on U.S. persons, it may distribute or report on that data in several ways that may ultimately have implications for criminal cases—including by sharing data it “reasonably believe[s] to contain evidence of a crime” with the FBI or other law enforcement bodies. While it has not been publicly confirmed that such knowing NSA sharing of Section 702 data believed to contain evidence of a crime is feeding into non-terrorism prosecutions, in my view the risk is real.

FBI querying: “Fishing” in the pool is probably not so unusual

The current Section 702 regime allows the FBI to obtain unknown amounts of raw Section 702 data without a warrant. PCLOB has said it does not obtain all such data, but the actual amount remains unclear; the Office of the Director of National Intelligence’s statementthree years ago that the data constitutes “a small percentage of NSA’s total Section 702 collection” did little to illuminate this.

The Bureau then has the power to carry out warrantless searches—or “queries”—of these communications, a practice that has prompted strong expressions of concern from independent evaluators. Medine testified that the FBI “routinely looks into 702 databases, and not just in investigations, but even in assessments where the FBI has absolutely no suspicion of wrongdoing … they’re just sort of entitled to poke around and see if something is going on.” Jeffress, too, flagged that the FISC has described these FBI queries as “routine and encouraged,” that the Bureau may conduct them even at the pre-investigation “assessment” stage, and that “there is no requirement that the matter be a serious one, nor that it have any relation to national security.”

It is difficult to reconcile the claim that it is “extremely unlikely” that FBI agents would “fish” in Section 702 data for evidence of crimes with Medine’s and Jeffress’ statements, which suggest the Bureau has the power to do just that. As Dean Rangappa emphasizes, FBI procedures require that “[t]o the extent reasonably feasible,” queries of raw Section 702 data must be designed to “find and extract foreign intelligence information or evidence of a crime.” That latter phrase, however, essentially captures the problem: Agents may carry out warrantless searches of warrantlessly seized communications in order to find something the government could use to put someone in jail.

A recent FISC opinion indicates that the executive branch has reported only one instance to the Court in which the FBI, using a query that was not designed to find “foreign intelligence information,” found Section 702 information on an American. As highly unsympathetic as that case is (it involved an e-mail containing a description of child abuse), the fact that the government did use Section 702 to find such information without a warrant should give us all pause. Footnote 53 in the opinion also gives rise to concern that the FBI’s self-reporting processes for such cases may not be fully reliable—and one wonders how expansive queries that are seeking “foreign intelligence information,” which would not even result in such reporting, may be.

The FBI’s adoption of internal procedures that, in some ways, regulate access to this pool of warrantlessly collected data (for example, by requiring agents to have authorization before they can view Section 702 data they have found) does not take these concerns off the table. First, as Chief Justice Roberts observed in Riley v. California, law enforcement’s development of internal rules to assuage concerns about warrantless searches is “[p]robably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.” In other words, even the best and strictest FBI procedures cannot undo any constitutional or other violations inherent in these programs.

Second, the FISC expressed a stark concern in its recent opinion about the FBI’s “apparent disregard” of rules the FISC had approved, and recorded at least three serious episodes in which the Bureau improperly provided access to raw Section 702 data to its own employees or to groups of private contractors. The Court also raised fears that “the FBI may be engaging in similar disclosures of raw Section 702 information that have not been reported.”

Parallel construction means the use of this data in criminal investigations may never come to light

If the NSA, FBI, or other entities are employing warrantless Section 702 data in non-terrorism criminal investigations, this practice might never come to light. Historical documents suggest that the government may have devoted a significant amount of time over the years to pondering the question of how to use intelligence information in investigations without disclosing this fact at trial. Among other things, a declassified document from 1983 shows the executive branch seeming to embrace the idea of deliberately “build[ing] a firebreak” in evidentiary trails by encouraging law enforcement to develop independent evidence in a way that would prevent defendants from discovering that information originally came from intelligence activities. Thirty years later, Reuters reported that the DEA was engaging in just such an activity, known as “parallel construction,” to avoid disclosing its use of tips from intelligence.

The government’s decidedly belated notice of Section 702 surveillance in at least a few known criminal cases provide reason to be concerned about the use of parallel construction to conceal such monitoring; it is also worrying that even defense attorneys who fight determinedly to find out if Section 702 or other intelligence monitoring was employed in their clients’ cases may face stiff resistance. (For civil rights defenders, it is worth reading the hearing transcript and related motion in an unusual 2013 Texas drug case to see some of the challenges confronting such attorneys.) It also seems possible, as at least one declassified record as well as the Reuters article suggest, that the prosecution could simply drop cases if defendants appeared likely to succeed in forcing the disclosure of Section 702 surveillance.

* * *

Particularly since the discussion above draws on some materials that had not yet been released at the time of our original exchange, I hope Dean Rangappa will take this as an invitation to a continuing dialogue.

This analysis of how Section 702 data may be quietly making its way into criminal investigations is one aspect of a larger story: I am just as concerned about information the U.S. has warrantlessly obtained under Executive Order 12333 or intelligence-sharing agreements with foreign governments and hope to write further on those topics in the future. However, Section 702 presents an immediate opportunity to restore civil liberties in this area—something Congress should not pass up.

Image: Getty/Chip Somodevilla

Tags: Congress, FBI, FISA, FISC, NSA, Section 702

ABOUT THE AUTHOR

Sarah St.Vincent is a researcher and advocate on national security, surveillance, and domestic law enforcement for the US Program at Human Rights Watch. You can follow her on Twitter (@SarahStV_HRW)

Comey Statement for the Record Senate Select Committee on Intelligence

David Posnett — Wed, 07 Jun 2017 22:18:21 +0000

James B. Comey June 8, 2017

Comey statement annotated by the NY Times

Chairman Burr, Ranking Member Warner, Members of the Committee. Thank you for inviting me to appear before you today. I was asked to testify today to describe for you my interactions with President-Elect and President Trump on subjects that I understand are of interest to you. I have not included every detail from my conversations with the President, but, to the best of my recollection, I have tried to include information that may be relevant to the Committee.

January 6 Briefing

I first met then-President-Elect Trump on Friday, January 6 in a conference room at Trump Tower in New York. I was there with other Intelligence Community (IC) leaders to brief him and his new national security team on the findings of an IC assessment concerning Russian efforts to interfere in the election. At the conclusion of that briefing, I remained alone with the President- Elect to brief him on some personally sensitive aspects of the information assembled during the assessment.

The IC leadership thought it important, for a variety of reasons, to alert the incoming President to the existence of this material, even though it was salacious and unverified. Among those reasons were: (1) we knew the media was about to publicly report the material and we believed the IC should not keep knowledge of the material and its imminent release from the President-Elect; and (2) to the extent there was some effort to compromise an incoming President, we could blunt any such effort with a defensive briefing.

The Director of National Intelligence asked that I personally do this portion of the briefing because I was staying in my position and because the material implicated the FBI’s counter-intelligence responsibilities. We also agreed I would do it alone to minimize potential embarrassment to the President-Elect. Although we agreed it made sense for me to do the briefing, the FBI’s leadership and I were concerned that the briefing might create a situation where a new President came into office uncertain about whether the FBI was conducting a counter-intelligence investigation of his personal conduct.

It is important to understand that FBI counter-intelligence investigations are different than the more-commonly known criminal investigative work. The Bureau’s goal in a counter-intelligence investigation is to understand the technical and human methods that hostile foreign powers are using to influence the United States or to steal our secrets. The FBI uses that understanding to disrupt those efforts. Sometimes disruption takes the form of alerting a person who is targeted for recruitment or influence by the foreign power. Sometimes it involves hardening a computer system that is being attacked. Sometimes it involves “turning” the recruited person into a double-agent, or publicly calling out the behavior with sanctions or expulsions of embassy-based intelligence officers. On occasion, criminal prosecution is used to disrupt intelligence activities.

Because the nature of the hostile foreign nation is well known, counter- intelligence investigations tend to be centered on individuals the FBI suspects to be witting or unwitting agents of that foreign power. When the FBI develops reason to believe an American has been targeted for recruitment by a foreign power or is covertly acting as an agent of the foreign power, the FBI will “open an investigation” on that American and use legal authorities to try to learn more about the nature of any relationship with the foreign power so it can be disrupted.

In that context, prior to the January 6 meeting, I discussed with the FBI’s leadership team whether I should be prepared to assure President-Elect Trump that we were not investigating him personally. That was true; we did not have an open counter-intelligence case on him. We agreed I should do so if circumstances warranted. During our one-on-one meeting at Trump Tower, based on President- Elect Trump’s reaction to the briefing and without him directly asking the question, I offered that assurance.

I felt compelled to document my first conversation with the President-Elect in a memo. To ensure accuracy, I began to type it on a laptop in an FBI vehicle outside Trump Tower the moment I walked out of the meeting. Creating written records immediately after one-on-one conversations with Mr. Trump was my practice from that point forward. This had not been my practice in the past. I spoke alone with President Obama twice in person (and never on the phone) – once in 2015 to discuss law enforcement policy issues and a second time, briefly, for him to say goodbye in late 2016. In neither of those circumstances did I memorialize the discussions. I can recall nine one-on-one conversations with President Trump in four months – three in person and six on the phone.

January 27 Dinner

The President and I had dinner on Friday, January 27 at 6:30 pm in the Green Room at the White House. He had called me at lunchtime that day and

invited me to dinner that night, saying he was going to invite my whole family, but decided to have just me this time, with the whole family coming the next time. It was unclear from the conversation who else would be at the dinner, although I assumed there would be others.

It turned out to be just the two of us, seated at a small oval table in the center of the Green Room. Two Navy stewards waited on us, only entering the room to serve food and drinks.

The President began by asking me whether I wanted to stay on as FBI Director, which I found strange because he had already told me twice in earlier conversations that he hoped I would stay, and I had assured him that I intended to. He said that lots of people wanted my job and, given the abuse I had taken during the previous year, he would understand if I wanted to walk away.

My instincts told me that the one-on-one setting, and the pretense that this was our first discussion about my position, meant the dinner was, at least in part, an effort to have me ask for my job and create some sort of patronage relationship. That concerned me greatly, given the FBI’s traditionally independent status in the executive branch.

I replied that I loved my work and intended to stay and serve out my ten- year term as Director. And then, because the set-up made me uneasy, I added that I was not “reliable” in the way politicians use that word, but he could always count on me to tell him the truth. I added that I was not on anybody’s side politically and could not be counted on in the traditional political sense, a stance I said was in his best interest as the President.

A few moments later, the President said, “I need loyalty, I expect loyalty.” I didn’t move, speak, or change my facial expression in any way during the awkward silence that followed. We simply looked at each other in silence. The conversation then moved on, but he returned to the subject near the end of our dinner.

At one point, I explained why it was so important that the FBI and the Department of Justice be independent of the White House. I said it was a paradox: Throughout history, some Presidents have decided that because “problems” come from Justice, they should try to hold the Department close. But blurring those boundaries ultimately makes the problems worse by undermining public trust in the institutions and their work.

Near the end of our dinner, the President returned to the subject of my job, saying he was very glad I wanted to stay, adding that he had heard great things

about me from Jim Mattis, Jeff Sessions, and many others. He then said, “I need loyalty.” I replied, “You will always get honesty from me.” He paused and then said, “That’s what I want, honest loyalty.” I paused, and then said, “You will get that from me.” As I wrote in the memo I created immediately after the dinner, it is possible we understood the phrase “honest loyalty” differently, but I decided it wouldn’t be productive to push it further. The term – honest loyalty – had helped end a very awkward conversation and my explanations had made clear what he should expect.

During the dinner, the President returned to the salacious material I had briefed him about on January 6, and, as he had done previously, expressed his disgust for the allegations and strongly denied them. He said he was considering ordering me to investigate the alleged incident to prove it didn’t happen. I replied that he should give that careful thought because it might create a narrative that we were investigating him personally, which we weren’t, and because it was very difficult to prove a negative. He said he would think about it and asked me to think about it.

As was my practice for conversations with President Trump, I wrote a detailed memo about the dinner immediately afterwards and shared it with the senior leadership team of the FBI.

February 14 Oval Office Meeting

On February 14, I went to the Oval Office for a scheduled counter- terrorism briefing of the President. He sat behind the desk and a group of us sat in a semi-circle of about six chairs facing him on the other side of the desk. The Vice President, Deputy Director of the CIA, Director of the National Counter- Terrorism Center, Secretary of Homeland Security, the Attorney General, and I were in the semi-circle of chairs. I was directly facing the President, sitting between the Deputy CIA Director and the Director of NCTC. There were quite a few others in the room, sitting behind us on couches and chairs.

The President signaled the end of the briefing by thanking the group and telling them all that he wanted to speak to me alone. I stayed in my chair. As the participants started to leave the Oval Office, the Attorney General lingered by my chair, but the President thanked him and said he wanted to speak only with me. The last person to leave was Jared Kushner, who also stood by my chair and exchanged pleasantries with me. The President then excused him, saying he wanted to speak with me.

When the door by the grandfather clock closed, and we were alone, the President began by saying, “I want to talk about Mike Flynn.” Flynn had resigned

the previous day. The President began by saying Flynn hadn’t done anything wrong in speaking with the Russians, but he had to let him go because he had misled the Vice President. He added that he had other concerns about Flynn, which he did not then specify.

The President then made a long series of comments about the problem with leaks of classified information – a concern I shared and still share. After he had spoken for a few minutes about leaks, Reince Priebus leaned in through the door by the grandfather clock and I could see a group of people waiting behind him. The President waved at him to close the door, saying he would be done shortly. The door closed.

The President then returned to the topic of Mike Flynn, saying, “He is a good guy and has been through a lot.” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied only that “he is a good guy.” (In fact, I had a positive experience dealing with Mike Flynn when he was a colleague as Director of the Defense Intelligence Agency at the beginning of my term at FBI.) I did not say I would “let this go.”

The President returned briefly to the problem of leaks. I then got up and left out the door by the grandfather clock, making my way through the large group of people waiting there, including Mr. Priebus and the Vice President.

I immediately prepared an unclassified memo of the conversation about Flynn and discussed the matter with FBI senior leadership. I had understood the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December. I did not understand the President to be talking about the broader investigation into Russia or possible links to his campaign. I could be wrong, but I took him to be focusing on what had just happened with Flynn’s departure and the controversy around his account of his phone calls. Regardless, it was very concerning, given the FBI’s role as an independent investigative agency.

The FBI leadership team agreed with me that it was important not to infect the investigative team with the President’s request, which we did not intend to abide. We also concluded that, given that it was a one-on-one conversation, there was nothing available to corroborate my account. We concluded it made little sense to report it to Attorney General Sessions, who we expected would likely recuse himself from involvement in Russia-related investigations. (He did so two weeks later.) The Deputy Attorney General’s role was then filled in an acting capacity by a United States Attorney, who would also not be long in the role.

After discussing the matter, we decided to keep it very closely held, resolving to figure out what to do with it down the road as our investigation progressed. The investigation moved ahead at full speed, with none of the investigative team members – or the Department of Justice lawyers supporting them – aware of the President’s request.

Shortly afterwards, I spoke with Attorney General Sessions in person to pass along the President’s concerns about leaks. I took the opportunity to implore the Attorney General to prevent any future direct communication between the President and me. I told the AG that what had just happened – him being asked to leave while the FBI Director, who reports to the AG, remained behind – was inappropriate and should never happen. He did not reply. For the reasons discussed above, I did not mention that the President broached the FBI’s potential investigation of General Flynn.

March 30 Phone Call

On the morning of March 30, the President called me at the FBI. He described the Russia investigation as “a cloud” that was impairing his ability to act on behalf of the country. He said he had nothing to do with Russia, had not been involved with hookers in Russia, and had always assumed he was being recorded when in Russia. He asked what we could do to “lift the cloud.” I responded that we were investigating the matter as quickly as we could, and that there would be great benefit, if we didn’t find anything, to our having done the work well. He agreed, but then re-emphasized the problems this was causing him.

Then the President asked why there had been a congressional hearing about Russia the previous week – at which I had, as the Department of Justice directed, confirmed the investigation into possible coordination between Russia and the Trump campaign. I explained the demands from the leadership of both parties in Congress for more information, and that Senator Grassley had even held up the confirmation of the Deputy Attorney General until we briefed him in detail on the investigation. I explained that we had briefed the leadership of Congress on exactly which individuals we were investigating and that we had told those Congressional leaders that we were not personally investigating President Trump. I reminded him I had previously told him that. He repeatedly told me, “We need to get that fact out.” (I did not tell the President that the FBI and the Department of Justice had been reluctant to make public statements that we did not have an open case on President Trump for a number of reasons, most importantly because it would create a duty to correct, should that change.)

The President went on to say that if there were some “satellite” associates of his who did something wrong, it would be good to find that out, but that he

hadn’t done anything wrong and hoped I would find a way to get it out that we weren’t investigating him.

In an abrupt shift, he turned the conversation to FBI Deputy Director Andrew McCabe, saying he hadn’t brought up “the McCabe thing” because I had said McCabe was honorable, although McAuliffe was close to the Clintons and had given him (I think he meant Deputy Director McCabe’s wife) campaign money. Although I didn’t understand why the President was bringing this up, I repeated that Mr. McCabe was an honorable person.

He finished by stressing “the cloud” that was interfering with his ability to make deals for the country and said he hoped I could find a way to get out that he wasn’t being investigated. I told him I would see what we could do, and that we would do our investigative work well and as quickly as we could.

Immediately after that conversation, I called Acting Deputy Attorney General Dana Boente (AG Sessions had by then recused himself on all Russia- related matters), to report the substance of the call from the President, and said I would await his guidance. I did not hear back from him before the President called me again two weeks later.

April 11 Phone Call

On the morning of April 11, the President called me and asked what I had done about his request that I “get out” that he is not personally under investigation. I replied that I had passed his request to the Acting Deputy Attorney General, but I had not heard back. He replied that “the cloud” was getting in the way of his ability to do his job. He said that perhaps he would have his people reach out to the Acting Deputy Attorney General. I said that was the way his request should be handled. I said the White House Counsel should contact the leadership of DOJ to make the request, which was the traditional channel.

He said he would do that and added, “Because I have been very loyal to you, very loyal; we had that thing you know.” I did not reply or ask him what he meant by “that thing.” I said only that the way to handle it was to have the White House Counsel call the Acting Deputy Attorney General. He said that was what he would do and the call ended.

That was the last time I spoke with President Trump. ###

Rosenstein Prepared Remarks Before Congress

David Posnett — Sat, 20 May 2017 13:32:26 +0000

BRIEFING FOR MEMBERS OF THE UNITED STATES SENATE and HOUSE OF REPRESENTATIVES
DEPUTY ATTORNEY GENERAL ROD J. ROSENSTEIN
WASHINGTON, DC

MAY 18th and 19th, 2017

Good afternoon. I welcome the opportunity to discuss my role in the removal of FBI Director James Comey, although I know you understand that I will not discuss the special counsel’s ongoing investigation. Most importantly, I want to emphasize my unshakeable commitment to protecting the integrity of every federal criminal investigation. There never has been, and never will be, any political interference in any matter under my supervision in the United States Department of Justice.

** *
Before I discuss the events of the past two weeks, I want to provide some background

about my previous relationship with former Director Comey. I have known Jim Comey since approximately 2002. In 2005, when Mr. Comey was Deputy Attorney General, he participated in selecting me to serve as a U.S. Attorney. As a federal prosecutor, he was a role model. His speeches about leadership and public service inspired me.

On July 5, 2016, Director Comey held his press conference concerning the federal grand jury investigation of Secretary Clinton’s emails. At the start of the press conference, the Director stated that he had “not coordinated or reviewed this statement in any way with the Department of Justice…. They do not know what I am about to say.”

Director Comey went on to declare that he would publicly disclose “what we did; what we found; and what we are recommending to the Department of Justice.” He proceeded to disclose details about the evidence; assert that the American people “deserve” to know details; declare that no “reasonable” prosecutor would file charges; and criticize Secretary Clinton.

I thought the July 5 press conference was profoundly wrong and unfair both to the Department of Justice and Secretary Clinton. It explicitly usurped the role of the Attorney General, the Deputy Attorney General and the entire Department of Justice; it violated deeply engrained rules and traditions; and it guaranteed that some people would accuse the FBI of interfering in the election.

There are lawful and appropriate mechanisms to deal with unusual circumstances in which public confidence in the rule of law may be jeopardized. Such mechanisms preserve the traditional balance of power between investigators and prosecutors, and protect the rights of citizens.

Director Comey attended the Maryland U.S. Attorney’s Office training seminar on October 27, 2016, and gave a detailed explanation of his reasons for making public statements about the conclusion of the Secretary Clinton email investigation. I strongly disagreed with his analysis, but I believe that he made his decisions in good faith.

The next day, October 28, Mr. Comey sent his letter to the Congress announcing that the FBI was reopening the Clinton email investigation. He subsequently has said that he believed he was obligated to send the letter. I completely disagree. He again usurped the authority of the Department of Justice, by sending the letter over the objection of the Department of Justice; flouted rules and deeply engrained traditions; and guaranteed that some people would accuse the FBI of interfering in the election.

Before the Senate Judiciary Committee on May 3, 2017, Director Comey testified under oath about his public statements concerning the Secretary Clinton email investigation. I strongly disagreed with his explanations, particularly his assertion that maintaining confidentiality about criminal investigations constitutes concealment. Nonetheless, I respected him personally.

Former Department of Justice officials from both political parties have criticized Director Comey’s decisions. It was not just an isolated mistake; the series of public statements about the email investigation, in my opinion, departed from the proper role of the FBI Director and damaged public confidence in the Bureau and the Department.

In one of my first meetings with then-Senator Jeff Sessions last winter, we discussed the need for new leadership at the FBI. Among the concerns that I recall were to restore the credibility of the FBI, respect the established authority of the Department of Justice, limit public statements and eliminate leaks.

On May 8, I learned that President Trump intended to remove Director Comey and sought my advice and input. Notwithstanding my personal affection for Director Comey, I thought it was appropriate to seek a new leader.

I wrote a brief memorandum to the Attorney General summarizing my longstanding concerns about Director Comey’s public statements concerning the Secretary Clinton email investigation.

I chose the issues to include in my memorandum.

Before finalizing the memorandum on May 9, I asked a senior career attorney on my staff to review it. That attorney is an ethics expert who has worked in the Office of the Deputy Attorney General during multiple administrations. He was familiar with the issues. I informed the senior attorney that the President was going to remove Director Comey, that I was writing a memorandum to the Attorney General summarizing my own concerns, and that I wanted to confirm that everything in my memorandum was accurate. He concurred with the points raised in my memorandum. I also asked several other career Department attorneys to review the memorandum and provide edits.

My memorandum is not a legal brief; these are not issues of law.

My memorandum is not a finding of official misconduct; the Inspector General will render his judgment about that issue in due course.

My memorandum is not a statement of reasons to justify a for-cause termination.

My memorandum is not a survey of FBI morale or performance. My memorandum is not a press release.

It is a candid internal memorandum about the FBI Director’s public statements concerning a high-profile criminal investigation.

I sent my signed memorandum to the Attorney General after noon on Tuesday, May 9.

I wrote it. I believe it. I stand by it.
** *
Finally, I want to address the media claims that the FBI asked for additional resources for the investigation of Russian interference in the 2016 presidential election. I am not aware of any such request. Moreover, I consulted my staff and Acting FBI Director Andrew McCabe, and none of them recalls such a request.

***

What James Comey Told Me About Donald Trump

David Posnett — Fri, 19 May 2017 22:30:20 +0000

Published by the Lawfare Institute in Cooperation With

By Benjamin Wittes

Thursday, May 18, 2017, 8:02 PM

The New York Times is reporting tonight:

President Trump called the F.B.I. director, James B. Comey, weeks after he took office and asked him when federal authorities were going to put out word that Mr. Trump was not personally under investigation, according to two people briefed on the call.

Mr. Comey told the president that if he wanted to know details about the bureau’s investigations, he should not contact him directly but instead follow the proper procedures and have the White House counsel send any inquires to the Justice Department, according to those people.

After explaining to Mr. Trump how communications with the F.B.I. should work, Mr. Comey believed he had effectively drawn the line after a series of encounters he had with the president and other White House officials that he felt jeopardized the F.B.I.’s independence. At the time, Mr. Comey was overseeing the investigation into links between Mr. Trump’s associates and Russia.

I did not know this particular fact, but it doesn’t surprise me at all. The principal source for the rest of this story is, well, me—specifically a long interview I gave to reporter Michael Schmidt on Friday about my conversations with FBI Director James Comey over the last few months, and particularly about one such conversation that took place on March 27 over lunch in Comey’s FBI office.

This story breaks hard on the heels of this week’s revelation—also by the Times—that Trump had asked Comey to bury the investigation of Gen. Michael Flynn. A few words of elaboration are in order.

I called Schmidt Friday morning after reading his earlier story, which ran the previous evening, about Comey’s dinner with President Trump and the President’s demands at that dinner for a vow of loyalty. Schmidt had reported that Trump requested that Comey commit to personal loyalty to the President, and that Comey declined, telling the President that he would always have Comey’s “honesty.” When I read Schmidt’s account, I immediately understood certain things Comey had said to me over the previous few months in a different, and frankly more menacing, light. While I am not in the habit of discussing with reporters my confidential communications with friends, I decided that the things Comey had told me needed to be made public.

As I told Schmidt, I did not act in any sense at Comey’s request. The information I provided, however, dovetails neatly with the Times‘s subsequent discovery of the personal confrontation described above between Comey and the President over investigative inquiries and inquiries directly to the Bureau from the White House.

I did this interview on the record because the President that morning was already issuing threatening tweets suggesting that Comey was leaking things, and I didn’t want any room for misunderstanding that any kind of leak had taken place with respect to the information I was providing. There was no leak from Comey, no leak from anyone else at the FBI, and no leak from anyone outside of the bureau either—just conversations between friends, the contents of which one friend is now disclosing. For the same reason, I insisted that Schmidt record the conversation and give me a copy of the recording, so that we had a good record of what was said: both what was said by Comey as reported by me, and what was said by me about the conversation. Schmidt and I have had a few clarifying phone calls since then that were not recorded.

Before I go on, let me pause briefly to explain my relationship with Comey, which has been the subject of a lot of misinformation since I disclosed that we are friends in a piece in his defense a few months back. Ever since then, and particularly since Gizmodoused me as forensic evidence in its weird effort to out a supposed Comey Twitter account, people have developed this idea that Comey and I are especially close. Some people have even started following me on Twitter because they think I’m channeling Comey or am some secret line into his thinking. The truth is rather more pedestrian: We’re friends. We communicate regularly, but I am not among his close intimates or advisers. I know nothing about the Russia investigation that isn’t public. Comey has never talked to me about a live investigative matter—and I’ve never asked him to.

That said, sometimes, as friends do, we have lunch, and when we do so, we talk about things of mutual interest, like how Lawfare is going or how life running the FBI is going. And those latter conversations necessarily involve President Trump—and President Obama before him.

Note that in the conversations I’m going to describe here, I was not interviewing Comey. There are any number of follow-up questions I would ask were I meeting him in a journalistic capacity that I did not ask. So in the conversations I’m about to relate, the answers to all questions about whether I followed up on this or that point is that I did not. I never expected to be giving a public account of his thinking during this period. I took no notes. What follows is just my recollection of things he told about his interactions with Trump that I now believe flesh out the relationship between the two men in the weeks after that dinner about which the New York Times reported and in the period in which Trump also apparently asked Comey to back off of Flynn—and in which I now learn that Comey also told the President to stop asking the FBI about investigative matters.

The first point is a general one: Comey was preoccupied throughout this period with the need to protect the FBI from these inquiries on investigative matters from the White House. Two incidents involving such inquiries have become public: the Flynn discussion and Reince Priebus’s query to Andrew McCabe about whether the then-Deputy FBI Director could publicly dispute the New York Times’ reporting regarding communications between Trump associates and Russian officials. Whether there were other such incidents I do not know, but I suspect there were. What I do know is that Comey spent a great deal of energy doing what he alternately described as “training” the White House that officials had to go through the Justice Department and “reestablishing” normal hands-off White House-Bureau relations.

Comey never said specifically that this policing was about the Russia matter, but I certainly assumed that it was—probably alongside other things. While I do not know how many incidents we’re talking about, how severe they were, or their particular character, I do know this: Comey understood Trump’s people as having neither knowledge of nor respect for the independence of the law enforcement function. And he saw it as an ongoing task on his part to protect the rest of the Bureau from improper contacts and interferences from a group of people he did not regard as honorable. This was a general preoccupation of Comey’s in the months he and Trump overlapped—and the difference between this relationship and his regard for Obama (which was deep) was profound and palpable.

Second, Comey described at least two incidents which he regarded as efforts on the part of the President personally to compromise him or implicate him with either shows of closeness or actual chumminess with the President.

The first incident he told me about was the infamous “hug” from Trump after the inauguration:

The hug took place at a White House meeting to which Trump had invited law enforcement leadership to thank them for their role in the inauguration. Comey described really not wanting to go to that meeting, for the same reason he later did not want to go to the private dinner with Trump: the FBI director should be always at arm’s length from the President, in his view. There was an additional sensitivity here too, because many Democrats blamed Comey for Trump’s election, so he didn’t want any shows of closeness between the two that might reinforce a perception that he had put a thumb on the scale in Trump’s favor. But he also felt that he could not refuse a presidential invitation, particularly not one that went to a broad array of law enforcement leadership. So he went. But as he told me the story, he tried hard to blend into the background and avoid any one-on-one interaction. He was wearing a blue blazer and noticed that the drapes were blue. So he stood in the back, right in front of the drapes, hoping Trump wouldn’t notice him camouflaged against the wall. If you look at the video, Comey is standing about as far from Trump as it is physically possible to be in that room.

And for a long time, he reported, Trump didn’t seem to notice him. The meeting was nearly over, he said, and he really thought he was going to get away without an individual interaction. But when you’re six foot, eight inches tall, it’s hard to blend in forever, and Trump ultimately singled him out—and did so with the most damning faint praise possible: “Oh, and there’s Jim. He’s become more famous than me!”

Comey took the long walk across the room determined, he told me, that there was not going to be a hug. Bad enough that he was there; bad enough that there would be a handshake; he emphatically did not want any show of warmth.

Again, look at the video, and you’ll see Comey preemptively reaching out to shake hands. Trump grabs his hand and attempts an embrace. The embrace, however, is entirely one sided.

Comey was disgusted. He regarded the episode as a physical attempt to show closeness and warmth in a fashion calculated to compromise him before Democrats who already mistrusted him.

The loyalty dinner took place five days later.

Comey never told me the details of the dinner meeting; I don’t think I even knew that there had been a meeting over dinner until I learned it from the Times story. But he did tell me in general terms that early on, Trump had “asked for loyalty” and that Comey had promised him only honesty. He also told me that Trump was perceptibly uncomfortable with this answer. And he said that ever since, the President had been trying to be chummy in a fashion that Comey felt was designed to absorb him into Trump’s world—to make him part of the team. Comey was deeply uncomfortable with these episodes. He told me that Trump sometimes talked to him a fashion designed to implicate him in Trump’s way of thinking. While I was not sure quite what this meant, it clearly disquieted Comey. He felt that these conversations were efforts to probe how resistant he would be to becoming a loyalist. In light of the dramatic dinner meeting and the Flynn request, it’s easy to see why they would be upsetting and feel like attempts at pressure.

On March 27, he described one incident in particular that had bothered him. Comey was about to get on a helicopter when his phone rang. It was the White House saying that the President wanted to speak with him. Figuring there must be something urgent going on, he delayed his flight to take the call. To his surprise, the President just wanted to chitchat. He was trying to be social, Comey related; there was no agenda, much less an urgent one. Notably, since the President has claimed that Comey told him in two phone conversations that he was not under investigation, Comey said nothing to me about the subject coming up in this call. Indeed, he regarded the call as weird for how substanceless it was. What bothered Comey was twofold—the fact that the conversation happened at all (why was Trump calling him to exchange pleasantries?) and the fact that there was an undercurrent of Trump’s trying to get him to kiss the ring.

By the time we had lunch that day, Comey thought he had the situation under control. It had required a lot of work, he said, to train the White House that there were questions officials couldn’t ask and that all contacts had to go through the Justice Department. But he thought the work had been done. After reading the top few paragraphs of the Times story, I now have no doubt that he was referring among other things to the conversation with the President, which he did not mention specifically to me. He also thought that policing the lines he had established was going to require constant vigilance on his part in the future.

He said repeatedly that it was going to be a very long few years. And he joked that the hashtag I use on Twitter—#NotesFromUnderTrump, which identifies the particular day of the Trump presidency—was ticking very slowly.

He said one other thing that day that, in retrospect, stands out in my memory: he expressed wariness about the then-still-unconfirmed deputy attorney general nominee, Rod Rosenstein. This surprised me because I had always thought well of Rosenstein and had mentioned his impending confirmation as a good thing. But Comey did not seem enthusiastic. The DOJ does need Senate-confirmed leadership, he agreed, noting that Dana Boente had done a fine job as acting deputy but that having confirmed people to make important decisions was critical. And he agreed with me that Rosenstein had a good reputation as a solid career guy.

That said, his reservations were palpable. “Rod is a survivor,” he said. And you don’t get to survive that long across administrations without making compromises. “So I have concerns.”

In retrospect, I think I know what Comey must have been thinking at that moment. He had been asked to pledge loyalty by Trump. When he had declined, and even before, he had seen repeated efforts to—from his point of view—undermine his independence and probe the FBI’s defenses against political interference. He had been asked to drop an investigation. He had spent the last few months working to defend the normative lines that protect the FBI from the White House. And he had felt the need personally to make clear to the President that there were questions he couldn’t ask about investigative matters. So he was asking himself, I suspect: What loyalty oath had Rosenstein been asked to swear, and what happened at whatever dinner that request took place?

I don’t want to make a unified field theory out of these incidents, which are pieces of a much larger mosaic—a mosaic that surely includes whatever Comey knew about the Russia investigation, among many other things. But I am confident that these incidents tell a story about Comey’s thinking over the months that he and Trump were in office together. And I think they also sketch a trajectory in which Trump kept Comey on board only as long as it took him to figure out that there was no way to make Comey part of the team. Once he realized that he couldn’t do that—and that the Russia matter was thus not going away—he pulled the trigger.

Watch Dutch TV for Trump-Mob Connection!

David Posnett — Sun, 14 May 2017 01:44:18 +0000

Dutch TV did what no American TV network dares, suggesting Trump’s past includes illegal racketeering.

By Steven Rosenfeld / AlterNet

May 12, 2017

Picture legend: Donald Trump, Tevfik Arif and Felix Sater attend the Trump Soho Launch Party on Sept. 19, 2007 in New York.

Donald Trump’s business partners have included Russian oligarchs and convicted mobsters, which could make the president guilty of criminal racketeering charges.

That’s one of the eyebrow-raising takeaways from a 45-minute Dutch documentary that aired last week, titled The Dubious Friends of Donald Trump, Part I: The Russians. The first installment of the investigative reporting series, produced by Zembla, does what no American TV network has yet dared to do—take a deep look at the organized crime links and corrupt international business strategies used by Trump and his partners in his properties. And now there is also part two:

It starts with Trump’s luxury tower in the lower Manhattan neighborhood of Soho, where his partner was Bayrock LLC, whose primary investor was a Russian mining oligarch and another major investor was a convicted Russian mobster named Felix Sater.

“Why did 60 Minutes pass on the Bayrock story in 2016? Why did ABC News’ Brian Ross pass on the Trump Soho [Tower] story in 2015? Why has no major network done any kind of documentary on what the Dutch just did?” asks James Henry, a corporate lawyer-turned-financial investigative reporter who writes for DCReport.org. Henry is one of several investigative reporters whose work on Trump’s shady business empire is profiled in the film.

The documentary shows how Trump not only helped hide the identity of his mobster business partner, prompting an ongoing lawsuit accusing Trump of criminal racketeering but also how Trump used that internal company crisis to demand more money. It goes on to show how Russian oligarchs saw Trump’s properties as a way to get their money out of Russia and describes the international financial networks that are akin to a pyramid scheme for money laundering. It also notes how the law firm of Trump’s political adviser, former New York City mayor Rudy Guiliani, helped set up a money-laundering account in the Netherlands used by Bayrock.

The exposed financial trail raises questions about whether Trump fired FBI director James Comey because the FBI investigation of his campaign’s collusion with Russia was encroaching into Trump’s world of dark money and dubious business partners.

“Although still in its early days, Donald Trump’s presidency is coming under fire. The Russians are alleged to be in possession of sensitive information about Trump. And that exposes Trump to blackmail. Fake news, tweets Trump: ‘I have nothing to do with Russia—no deals, no loans, no nothing!’ Trump swears he has no ties with the Russians. But is that actually the case?

They go on to show that while Trump denies his ties with Russia, many Russians have deep financial ties to him.

“For months, the FBI has been investigating Russian interference in the American presidential elections,” the filmmakers continue. “Zembla is investigating another explosive dossier concerning Trump’s involvement with the Russians: Trump’s business and personal ties to oligarchs from the former Soviet Union. Powerful billionaires suspected of money laundering and fraud, and of having contacts in Moscow and with the mafia. What do these relationships say about Trump and why does he deny them? How compromising are these dubious business relationships for the 45th president of the United States? And are there connections with the Netherlands? Zembla meets with one of Trump’s controversial cronies and speaks with a former CIA agent, fraud investigators, attorneys, and an American senator, among others.”

The documentary’s YouTube description barely does justice to the film’s investigative reporting. While American journalists are following Trump’s tweets and tantrums, they followed the money into a world where the lines between outright profiteering and organized crime are blurred. What they found on a fact-based money trail reveals much about who the real Trump is and how he operates.