Four federal prosecutors resigned from their case on Tuesday when Attorney General William Barr overruled the sentencing recommendation they made for Roger Stone, whom Robert Mueller had forwarded charges against involving “five separate counts of lying to the House Intelligence Committee and two charges of obstructing a congressional investigation and intimidating a witness.”
Notably, the Justice Department’s lead counsel in the Stone case, Jessie Liu – the U.S. Attorney for the District of Columbia – had recently turned over that role to Timothy Shea, because Ms. Liu had been nominated for a post at the U.S. Treasury. Liu was also the lead counsel for some time on the Michael Flynn case.
On Tuesday, Trump withdrew the Liu nomination for the Treasury job, about the same time the four prosecutors, three of whom were members of the Mueller team, announced they were off the Stone case. Liu was previously scheduled for a Senate hearing on Thursday.
In the interest of getting expeditiously to the meat of this post, I won’t rehash the whole story on this. It can be gleaned at the links. One thing is important to note, however, as we survey what looks very much like a major maneuver of some kind between the “swamp” and the Trump administration.
According to a DOJ source, the four prosecutors who left the Stone case on Tuesday changed their sentencing recommendation between the time they briefed it to the Department and their formal filing with the court. The clear implication is that they told their bosses one thing, but then filed with the court for another. The sentence they recommended – seven to nine years – was well outside the sentencing guidelines for the offenses, and the DOJ (according to the source) had not seen or approved it. Rather, the DOJ thought the recommendation would be a different one.
At this initial stage, readers should draw their own conclusions about who is telling the truth here. There is reason, at least, to believe that the formal sentencing recommendation was made without approval from the DOJ higher-ups.
That would be enough reason for the four prosecutors to be off the case. But Jessie Liu wasn’t involved in the sentencing recommendation, so that incident, in itself, doesn’t explain why her nomination was withdrawn.
Enter the March 2017 handoff
This section of the analysis is what we might call a wholly-owned subsidiary of sundance at Conservative Treehouse, to whom the credit goes for the superb sleuthing that revealed a bottom line I’m going to state up-front. It is fully developed by sundance, and for the essential background and documentation, please read the CTH article.
The bottom line is that some media outlets have had a complete copy of at least the first FISA application on Carter Page since March of 2017, when Senate Intelligence Committee official James Wolfe leaked it to four journalists, including his girlfriend Ali Watkins. This is recorded in documents from James Wolfe’s prosecution, which were unsealed in 2018.
CTH points out what that means: that outlets like the New York Times, where Watkins later took a job, have known what was in the FISA application since shortly after the compromising handover by James Wolfe took place. The date was 17 March 2017, two months after Trump took office, and long before the FISA applications were made available in redacted form to the public.
Moreover, Senator Mark Warner, the ranking member on the Senate Intelligence Committee, may have known about the compromise at the time it happened.
And Jessie Liu was the prosecutor who eventually accepted a plea from James Wolfe to a minimal charge, and effectively swept this bombshell leak of incendiary Top Secret material under the rug. As pointed out at CTH, a core motive for this was the determination of Wolfe’s defense to call witnesses who would almost certainly have revealed that members of the Senate knew what Wolfe was doing.
Sundance calls this the “DC cover-up that’s as big as Spygate.” Key aspects must be noted in that regard; e.g., that there are media outlets that must therefore be complicit in selling the pubic a bill of goods on the “FISA applications” narrative. They’ve known all along what those applications contained, yet published as if they didn’t: not to protect national secrets, but to support a narrative that injured real people – through harassment and manufactured prosecutions – based on falsehoods that the FISA applications expose.
Sundance also makes a sound case that Mark Warner, and probably others, knew as well; not only what was in the FISA applications (which Warner had to know, having been authorized to read them unredacted in the SCIF), but that the FISA applications had been leaked to the media.
Again, it is certain that at least one of the first two FISA applications (from October 2016 and January 2017) constituted the material leaked. A sentencing document filed by the DOJ in December 2018 makes that clear. It may have been only the first application that was leaked; I discuss that below.
This is undoubtedly enough of a compromising situation for some in the Senate to not want it coming out in a confirmation hearing for Jessie Liu. Sundance prepared some good, suggested questions for the now-canceled hearing. But I doubt members of the Senate would really want the answers coming out in public – or even just the implications raised by the questions.
This was Spygate
I would go further than sundance, meanwhile, and say that this cover-up isn’t merely as big as Spygate. It is Spygate. It was part and parcel of the effort to gain advantage over Trump and take him down, an effort that started before he was even elected, and one whose full panoply of methods we still haven’t grasped.
To lay it out, I’ll start by noting something that hadn’t clicked into place with me until sundance highlighted it in the post linked above. I had followed the James Wolfe case, knew about Jessie Liu’s role, and even understood that the classified material involved – i.e., leaked by Wolfe – was related to the FISA applications.
But it hadn’t registered meaningfully with me that Wolfe leaked the material on 17 March 2017.
Recognizing the significance of that specific date makes the difference in how we see the event and its motivation. Why? Because during that period, Devin Nunes was working on a set of requests for the executive agencies which included FISA applications, and information about “unmasking” actions taken by federal authorities.
Nunes had sent a demand – disclosed to the Washington Post on 15 March – to the NSA, CIA, and FBI for information from them on whose names had been “unmasked” from incidental (non-targeted) electronic surveillance, in the period of the Trump transition (and probably some additional time on either side of it).
But he also sent a separate request to the Justice Department specifically for FISA applications.
In February 2018, the Lawfare blog posted a handy (if hostile) timeline of Nunes’s efforts to figure out what was going on with the unmasking. Most Spygate followers will chiefly remember Nunes’s dramatic press conferences later in March of 2017.
But he had gained sharpened awareness of the unmasking as an issue when it became clear, with the David Ignatius article in the Washington Post on 11 January 2017, that Michael Flynn had been unmasked in a phone call with Russian Ambassador Sergey Kislyak.
Nunes fully understood the relationship between FISA-authorized surveillance and unmasking. And he knew that it would be necessary to look into the records on both aspects of intelligence processing to determine what had been going on.
After President Trump sent his famous 4 March 2017 tweets about having been “wiretapped” by Obama, Nunes and Adam Schiff, the ranking member on the House Intelligence Committee, sent a letter to the acting attorney general (Dana Boente) requesting “copies of any applications the Justice Department submitted to the Foreign Intelligence Surveillance Court, any orders that the court released, and any copies of warrants issued by federal judges or magistrates regarding Trump, his campaign surrogates, business associates, employees, family and friends.” The timeframe requested was the year 2016.
Terrible! Just found out that Obama had my "wires tapped" in Trump Tower just before the victory. Nothing found. This is McCarthyism!
— Donald J. Trump (@realDonaldTrump) March 4, 2017
That letter was sent 8 March 2017. And note this about it: whatever your opinion of Devin Nunes, one thing no one would say of him is that he was complicit with either anti-Trump media or anti-Trump officials (i.e., “deep staters”) inside the government.
Thus, his letter of 8 March would have been the first communication from such a person – an official outside the anti-Trump circle – posing formal questions, to which the Carter Page FISA applications had to be the answer.
In other words, Nunes was taking aim at the real target. (Something I noted at the time; see my link on his 22 March 2017 press conference, above.)
Don’t get ahead of me here, because understanding this as a Spygate episode requires seeing it whole. Nunes and Schiff gave the DOJ a deadline of 13 March to respond. On 13 March, the DOJ requested more time. Nunes’s office told the media that if there was no response before FBI Director James Comey testified to the House committee the following Monday (20 March), Nunes would request the information during Comey’s hearing, and would subpoena it if necessary.
On 17 March, the day the FISA applications were made available in the SCIF on Capitol Hill, Nunes then provided this very informative statement to the media: “The Committee is satisfied that the Department of Justice has fully complied with our request for information from our March 8 letter on possible surveillance related to Donald Trump or his associates.”
That statement comports perfectly with what we would expect if the DOJ had forwarded copies of its 2016 applications made to the FISA court, including the Carter Page application.
Note two things. One, fulfilling this request from Nunes and Schiff would have been the reason the Carter Page FISA application was sent to the Hill on 17 March 2017.
Mark Warner and the Senate Intelligence staff would have known the request had been made – and known that the documents were coming on the 17th – because Warner was in the Intelligence Gang of Eight, and Schiff would have shared it with him, at a minimum.
Two, only the first Carter Page application, from October 2016, would have met the terms of the House Intelligence Committee request, which was for applications made in 2016.
That’s why I think it’s probable that only the first FISA application was leaked to the media on 17 March 2017.
A decision point, identified
But of more importance is the point that Nunes was the catalyst for shaking it out of the DOJ. That means that at the time the FISA application was leaked, and indeed for at least a couple of weeks before, some group of Deep Staters was closely attuned already to the significance of Nunes’s role and what he was trying to do. They knew he was on the hunt for a trail of activity that would lead back to them.
The interval between 13 and 17 March is thus an intriguing one. The DOJ asked for more time on 13 March, but apparently without previewing anything it was committing to. By 17 March, it had delivered the Carter Page FISA application, along with the others from 2016.
That tells me a decision was made between 13 and 17 March to deploy the Carter Page application rather than trying to keep it under wraps. The method of deployment was sending it to Capitol Hill.
This would constitute circumstantial evidence of the collusion that sundance postulates, presumably involving actors other than James Wolfe on Capitol Hill – and suggesting cooperation with the Justice Department, which sent the FISA application, and the media, whose members received the leak from Wolfe.
On Tuesday 21 March, the day after Comey’s 20 March hearing, Nunes made his famous visit to the White House complex and viewed material on the unmasking of U.S. persons, an inspection arranged for him by officials inside the White House. The next day, 22 March, Nunes briefed his concerns to the media, setting off a firestorm.
There were other events in the ensuing timeline; read them at your leisure. I’ll skip ahead to the one on 30 March, when as Lawfare recounts, “The New York Times reports that Ezra Cohen-Watnick, the National Security Council’s senior director for intelligence, and Michael Ellis, a lawyer in the White House counsel’s office working on national security issues, provided Nunes the intelligence documents he referenced in his March 22 press conference.”
The events highlighted above, including that last one, are the ones that matter.
The Nunes events make this Spygate
The date 17 March 2017 was not happenstance. Because Devin Nunes was probing for information about surveillance of the Trump team, there were quite a few people on Capitol Hill – and in the media – who would be motivated to set a counter-operation in motion at the first opportunity.
It’s easy to identify 17 March 2017 as that opportunity, because that’s the date stamped on the “official copy” of the Carter Page FISA application that made its way to the Hill.
But can we find the outlines of a Deep State/anti-Trump plan here? Can we justify thinking in terms of collusion, and supposing that multiple people were involved in taking advantage of that opportunity?
There are strong reasons to say yes. They relate to two circumstances. One is the 30 March New York Times article identifying two individuals as Devin Nunes’s contacts in the White House.
The other is the very first event in the Lawfare timeline: 11 November 2016, when Nunes was appointed as an adviser to the Trump transition team.
That means Nunes himself had been subject to being dragnetted in the Carter Page surveillance, by the two-hop rule, since 11 November 2016.
Nunes probably wasn’t the only one on Capitol Hill, for that matter. But once he was seriously on the hunt for FISA and unmasking information – which would lead to the activity trail of the anti-Trump surveillance – the motive to keep him under surveillance would have been exceptionally strong. He met that definition by mid-February 2017 at the latest.
Remember, it’s not “wiretapping” we’re talking about. It’s not listening in on phone calls. The method would have been retrieving “non-contents” information from telecom providers, using tailored queries that met the criteria authorized by the Carter Page FISA warrant. That kind of surveillance, covering phone calls, texts, and other instant messages, could be done without the subject or anyone connected with him ever knowing.
If Deep State planners were tracking Nunes, they had not only the motive to drop the Carter Page FISA application to the Hill, and thence to the media, on 17 March 2017, but the means to foresee that Nunes’s contacts with the White House would lead very soon to his being afforded a look at what had been going on there. They were alerted, in other words, to the danger to themselves, in time to take planned and deliberate advantage of the FISA application’s arrival on Capitol Hill.
Tracking Nunes (and probably the other two individuals named by the New York Times) was also a likely and accurate way to identify Nunes’s White House contacts(s). It had the merit of not requiring an initial cue from a source who actually witnessed the interactions. Knowing whom Nunes had been in contact with, his monitors could then ask intelligent questions of White House leakers who had only incidental awareness of what others in their vicinity were doing.
Pulling Liu’s nomination
If I were Trump and Barr, and had assembled information pointing in essence to a scenario like this – or were still in the process of assembling it – I wouldn’t want the Jessie Liu confirmation hearing to trip landmines before their time.
Trump wouldn’t withdraw the Liu nomination merely out of misplaced compassion for embarrassed senators or Deep Staters. He’d have good reasons to do it for his own purposes (with or without a dramatic event like the four prosecutors’ departure).
One of those reasons would be that Jessie Liu probably doesn’t belong in the job at Treasury. Whatever else she knew about James Wolfe and the Senate Intelligence Committee in the March 2017 timeframe, she knew that the classified material Wolfe leaked to the media was the Carter Page FISA application. She was apparently willing to cooperate in keeping that explosive information out of the public eye.
It may be that Liu was less culpably complicit than willing to go along, on the sidelines of an ambiguous situation, under pressure from higher echelon. We needn’t have a bloodthirsty attitude about Liu, per se.
But here’s what we do need to have: an accounting to the American people, before even one more official involved in very questionable actions by the government gets another pass.
The people have trusted the system in the blind long enough. No reckoning – no happy-face career progression for the known participants. If you want to object, go sell it to Michael Flynn and his family. (Or sell it to Roger Stone. DOJ let James Wolfe off with a two-month sentence.)
An additional reason for pulling the Liu nomination is simply that it may not be time to detonate the landmine yet. John Durham is doing his job. He, Barr, and Trump will know when it’s time.