Monday, June 14, 2021

Leaker Seeker


Fanciful depiction of Washington composing his Farewell Address, Via Doug Fabrizio, RadioWest, Salt Lake City.

On 26 January 2018, Charlie Savage reported in the New York Times that he'd learned something startling from anonymous "colleagues" of White House counsel Don McGahn: That President Donald J.Trump had decided to fire special. counsel Robert Mueller, and McGahn had stopped him with a threat to resign—

Mr. McGahn has been interviewed at length by Mr. Mueller’s team as it has sought to understand the president’s motivations and thinking. The investigators have also obtained memos, notes and emails about how Mr. McGahn tried to carry out Mr. Trump’s decisions in legally appropriate ways — such as objecting to a first draft of Mr. Trump’s letter firing Mr. Comey that mentioned the Russia investigation.

Mr. McGahn’s threat to resign is an example of how he has tried to both help and constrain an idiosyncratic client who hates to be managed and defies the norms of the presidency. Not everyone believes he has been successful.

Trump reacted that very day, as we know from the Mueller Report, but was unable to move McGahn to deny Savage's report:

On January 26, 2018, the President’s personal counsel called McGahn’s attorney and said that the President wanted McGahn to put out a statement denying that he had been asked to fire the Special Counsel and that he had threatened to quit in protest.784 McGahn’s attorney spoke with McGahn about that request and then called the President’s personal counsel to relay that McGahn would not make a statement.785 McGahn’s attorney informed the President’s personal counsel that the Times story was accurate in reporting that the President wanted the Special Counsel removed.786 Accordingly, McGahn’s attorney said, although the article was inaccurate in some other respects, McGahn could not comply with the President’s request to dispute the story.

And now we learn that, less than a month later, by 23 February, the Justice Department subpoenaed the Apple corporation for information on accounts owned by McGahn and his wife, a couple of weeks after they also subpoenaed Apple (6 February) for metadata on the activities of a number of email addresses and phone numbers that later turned out to belong to staffers on the House Intelligence Committee and two of its members, Eric Swalwell and then–ranking member Adam Schiff.

Which is about all we know so far, as DOJ's gag orders begin to expire and Apple informs the subjects, or whatever they are. The McGahn subpoenas were issued by a grand jury in the Eastern District of Virginia (which is the district in which Rick Gates  pleaded guilty on 23 February 2018, as it happens), but I'm not sure that's got any significance at all.

Except to note (this is my own discovery) that the US attorney in charge of the McGahn grand jury would have been Dana Boente, who had resigned the previous October but was still in place waiting for a replacement to be named, while simultaneously working as general counsel of the FBI since 28 January, in an appointment that had been controversial:

Boente's move to the FBI is notable because some might view him as a Trump loyalist who has shown himself willing to go along with the president's controversial agenda [as when he replaced DAG Sally Yates at the beginning of Trump's term, when she was fired for refusing to defend his unconstitutional Muslim ban], and he now might be able to advocate the president's position inside an institution that is supposed to enjoy independence.  

Or, you know, as long as he had this grand jury at his disposal, ask them for some subpoenas on some people that were making the president nervous. Come to think of it, Boente's service as acting attorney general and then acting DAG was during the exact period, January-April 2017, when DOJ seized records of four New York Times reporters—Matt Apuzzo, Adam Goldman, Eric Lichtblau and Michael S. Schmidt. 

All four worked on a complicated story at the time suggesting Russian involvement in the events that pressured James Comey into coming out with his July 2016 announcement that Hillary Clinton would not be charged in the email storage case, The Times notes, but I'm finding they were also variously involved in all sorts of revelations about contacts between Trump campaign interactions with Russian officials. Perhaps most important, along with Jo Becker, Apuzzo and Goldman were the authors of the original scoop on Donald Junior's email correspondence with the music promoter Rob Goldstone setting up the famous Trump Tower meeting of 9 June 2016.

And at the other end of Trump's term, Boente wasn't around in 2020, when unnamed prosecutors seized phone records, as we recently learned, from the Washington Post's Ellen Nakashima, Greg Miller, and Adam Entous, and phone and email records from CNN's Barbara Starr. After the Post published a piece on interactions during the 2016 presidential campaign between then-Senator Jeff Sessions and Russian ambassador Sergey Kislyak. (Starr, a Pentagon correspondent, had worked during the period on stories involving North Korea, Syria, and Afghanistan, and has said she doesn't have any idea why she would have been spied on.) But William J. Barr was attorney general then.

Steve was right—none of this new stuff is going to have any effect on the political ground. Nor, I suppose, will it increase the chances of Trump and his confederates going to jail on federal obstruction charges. 

Still, it's worth it to me to see the extent of the Trump DOJ's war on leaks, beginning weeks after the inauguration and continuing at least through last summer. There will certainly be more, and we'll continue to see how overwhelmingly the administration focused attention on finding out who was providing information to the public about their Russian connections, or stopping those in the FBI who were investigating those connections, presumably in the hope of illegally retaliating against them, as we know they did with Comey, McCabe, Strzok, Page, Ohr, Brennan, and others in the first round and Alexander Vindman and Fiona Hill and more later on. They are presumably continuing to do the same with the contacts of David Ignatius and his early scoop on the Kislyak-Flynn relationship in the (still theoretically ongoing!) Durham investigation. It seems more and more Nixonian, even as Trump himself seems less and less capable.

The thing to remember, as Trump adherents work to criminalize the concept of "leaking", is that all these facts were facts, which it was in the public's interest to know. It was legal to reveal them, and a public service. It's because they were true that the administration didn't want us to know them. Bad journalistic practice, poor narratology, meant that most people never did catch on, but those of us who have looked carefully realize they are indeed damning, adding up to a remarkable story of corruption, self-interested collaboration with foreign powers, and abuse of our own citizenry, such as Washington himself at his gloomiest did not quite envisage, in which a spirit of vindictive partisanship led to the elevation of a totally unfit monster ego to the highest office and to our exposure to the insidious designs of a hostile power both at the same time.

The truth on these matters isn't likely to put anybody in jail, or lose anybody an election, but it should, and it needs to be more widely understood in any case.

(See Emptywheel on the denials by Sessions, Rosenstein, and Barr that they knew anything about these subpoenas—it looks like they didn't like the questions and decided to answer different ones without cluing the reporters into the trick. Specifically, when they said they didn't know about any investigations targeting Schiff or Swalwell, they were telling the (lightly disguised) truth; the target was one of the staffers whose emails included exchanges with the congressmembers.)

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