Giuliani raid: Parallel-constructing the cloud?

Giuliani raid: Parallel-constructing the cloud?
Fox News video

One of the biggest lessons of the Russiagate/Spygate saga is that disclosures about evidence can occur long after the FBI has obtained it.  Americans spent the years from 2017 to 2020 watching a chain of “evidence” slowly roll out – and rapidly implode with each new revelation – and thus had a mental image of investigators only just sifting the “evidence” and “facts,” virtually all of which were from before 31 December 2016.

But in reality, that’s not what happened.  All the “evidence” deployed in the Russiagate narrative – the manufactured allegations against Trump – was gathered by the time Trump took office on 20 January 2017.  All of the events referenced took place before the end of 2016.  That’s the substance of what the Mueller special counsel team was looking at starting in May 2017.  And in the period from Mueller’s appointment to his report’s issuance in March 2019, the team learned hardly anything it did not already know. (What little it may have learned that was previously unknown probably related to the names of Russian military intelligence officers listed in now-derelict U.S. indictments.)

Everything that involved discovering previously unknown information after 20 January 2017  was “Spygate” – the saga of tracking down the spying on the Trump campaign organization.   The Spygate spying – the spying in 2016 – was what attended the Russiagate narrative that was eventually turned into the Mueller Report.

The Spygate revelations were the process that started with Devin Nunes, in mid-late February 2017.  But they were mostly about things done before Trump took office.  The Spygate information came out to the public (not to law enforcement), via the investigations of Congress, a brigade of dogged journalists and individual Internet sleuths, and eventually the inspector general of the Justice Department.

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But what federal law enforcement and intelligence agencies knew about their targets in Russiagate, they knew (or they knew had been made up, assembled by a Democrat-funded opposition effort), long before Mueller was ever appointed, and long before the public was alerted to what was going on.

The evidence indicates the Obama agencies spied on their targets electronically, and that’s how they gained whatever they got through “investigation,” as opposed to trying to manufacture evidence and instigate investigatable “incidents” by approaching George Papadopoulos and Carter Page (and Donald Trump, Jr., for that matter).  They tried to bootstrap surveillance authority for members of the Trump campaign through resurrecting a probe of Paul Manafort.  They had the Steele dossier assembled, and laundered through the media to give it a semblance of independent corroboration.

But the baseline thread of their operation was e-surveillance.  We know in principle that the surveillance was being done, because there are records of “unmaskings” involving the Trump campaign by members of the National Security Council going back to 2015.

(ODNI transparency report graphic)

We know from strongly indicative circumstance – the Susan Rice spreadsheet, the contemporaneous saga of abused “intelligence” queries via the NSA database – that data-retrieval surveillance (i.e., Section 702 queries) was taking place on an enormous and growing scale between 2013 and 2016.  In 2016, at the latest, it involved targets in the Trump campaign.

That surveillance was certainly against policy, with quite a bit of it most probably against the law.

In that light, I want to fix in your mind this point of overriding importance.

That e-surveillance is how the Obama administration sourced its operational planning against Trump, and we can assume with high confidence it was being done before Crossfire Hurricane started.

This is a big reason I have stressed so many times that if there had been anything to know about Trump’s activities, it would have been known long before he took office.

The Obama administration had him under surveillance. The long series of defamatory “questions” posed through media leaks about Trump and his associates from 2017 to 2019?  The Mueller team already had the answers — before May 2017.

The “Old” (Eisenhower) Executive Office Building across from the White House in Washington, D.C.. (Image: Wikimedia)

The companion point is that the Mueller project was an “investigation” in search of a way to leverage what Obama’s agencies had already collected, but couldn’t use to justify further investigation (because it showed no underlying crimes), or to enliven proceedings in court (because it had been obtained in an inadmissible way).  The main use of leverage was, as usual, manufacturing process crimes to get indictments, and create an “appearance of impropriety” or guilt.

And the reason I’m taking you through it here, once again, is to refresh our minds on what it means, and apply it to the FBI raid on Rudy Giuliani this past week.

The Giuliani raid

The FBI’s raid on Rudy Giuliani is almost laughably cut from the exact same cloth as Spygate.  Rather than lay that case out, I am linking to some excellent pieces from great Russiagate/Spygate investigators, so that I can focus on one particular point.

The indispensable overview of the linkage is Lee Smith’s canonical article at The Epoch Times.

Greg Jarrett has a superb summary of the FARA investigative angle, highlighting its flimsiness and how transparently it is being used as merely a pretext – frankly, a pathetic one – for obtaining warrants and otherwise harassing Mr. Giuliani.  FARA is the ridiculous “Logan Act” pretext for the Giuliani matter.

Conservative Treehouse’s sundance has put up a telling reminder of the likelihood that the FISA court, which may have been cooperating in questionable surveillance of Giuliani, has become compromised itself.  Read the article; this tweet is the preview.

The current FISA court is not one that would fail to cooperate in unjustified surveillance of Giuliani.

Those are the references that bring us to Giuliani’s interview with Tucker Carlson last week.  (Video below.)  There has been a big focus on the Hunter Biden hard drives, which Giuliani has repeatedly offered, and offered during the raid, but the FBI refused to take.  That’s important, but for the purposes of this article, I don’t care about the Hunter Biden material.

What I care about is the reference by Giuliani, in the final minute and a half of the interview, to the FBI “invading” his iCloud account during preparation for an impeachment proceeding against President Trump.  Giuliani says the FBI grabbed documents covered by attorney-client privilege (no doubt among the many other things readable in his iCloud material), and made its own decisions regarding what it had the authorization to review.

That point by Giuliani, about attorney-client privilege, is what would make the FBI’s actions categorically illicit.  It’s the essential point he needed to make in putting this before the public.

But here’s the point I want to focus on.

The cloud versus “communications”

If the FBI was rooting around in Giuliani’s iCloud account, whether with or without a surveillance warrant (let us assume “with”), it was going beyond even what we know about the surveillance of the Trump campaign in 2015 and 2016.

The anti-Trump surveillance was of communications.  It looked at emails, texts, SMS and direct message exchanges.  It obviously at some times covered voice calls.

Probing Giuliani’s iCloud account gave the FBI access to Giuliani’s documents and his manipulation of them in applications (e.g., Microsoft Office, or legal writing applications) via his working “space” in the cloud.

Just a computer living and working in the cloud. Pixabay

Giuliani wasn’t necessarily communicating with anyone else when the FBI was reading his activity.  All he had to be doing was interacting with his own data on his account.  Perhaps, in a collaborative work environment with assistants and colleagues, he and they worked on the same documents via the cloud.

Now think about the FBI already having that level of knowledge – and no doubt having saved records – of what’s in Giuliani’s electronic files, and then wanting to do a raid and seize his devices.

If there’s a reason for that, beyond harassment, it would seem to come down to a couple of possibilities.  One is that the penetration of Giuliani’s iCloud account was not authorized.  There’s a question in my mind how e-surveillance law treats the cloud.  For national security matters, even FISA’s updated language from within the last decade was written to describe the surveillance of computerized communications, with a national security hook (e.g., Giuliani, Ukrainians, and FARA) relating to whom the communications are with.

A user working within his own cloud account isn’t communicating with a foreign entity merely because he’s online writing about one, on things that can be deemed national security-related.  It’s probable that a FISA request, per se, to penetrate Giuliani’s iCloud account would be turned down; it’s also possible, as we saw with the Carter Page FISA applications, that the FBI and DOJ would simply lie about elements of their justification in order to get the authority they want.  That might even get them the authority, but it wouldn’t do to have the paper trail visible to a court.  If the information gained were to be used against Giuliani in court, a prosecutor would want an unimpeachable source for the evidence.

There is a host of big questions here; suffice it to say, this seems to be one of the possibilities for why the FBI might need to “parallel construct” what it knows, to launder it for a court.

Another would be that the penetration of Giuliani’s iCloud account was authorized under separate legal authority (i.e., criminal, predicated on a FARA rap), but the FBI exceeded the scope of what it was supposed to gather and retain.  This would suggest more of a fishing expedition with the seized devices, looking for something that never showed up in the cloud to justify reviewing and/or retaining files that were outside the scope of a warrant.

Prior knowledge.  Prior knowledge.  Did I mention prior knowledge?

In either case, the point to remember is the one I made over and over regarding Russiagate and Spygate.  About the purported material of Russiagate, the FBI already knew everything we ever found out about the activities of Trump and his associates, before the Mueller “investigation” began.

It’s a good guess that the FBI already knows every keystroke Giuliani has made in creating and storing his key files relating to the supposed FARA-Ukrainians matter (and others as well).  That’s what the FBI would have from invading Giuliani’s iCloud account.  It wouldn’t matter when the probe was done; histories can be retrieved.  Cloud providers are contractually bound to their customers to preserve their account information, including the arcane IT-gibberish records of events.

There has been an obvious question for many people about the Giuliani raid.  The warrant was obtained during the Trump administration – “two years” puts it in the spring of 2019, when Giuliani was beginning to gather investigative evidence from Ukraine – but it was only executed in the last week.  Why was it executed, and why now?  Why not immediately after Biden assumed office, over three months ago?

If you look at timing, the second impeachment proceeding, which took place after Biden’s inauguration, was a premium time for the FBI to snoop on Giuliani’s iCloud account.  That’s not because Giuliani represented Trump in the impeachment – he didn’t – but because of the coordinated effort by media and congressional Democrats to tie Ukraine to Trump and the 2020 election, accusing Trump of fostering foreign “interference” with allegations about Biden.  That effort flared up incessantly during the second impeachment.

(Note: I’m not saying here that the second impeachment was the first time Giuliani’s iCloud account was invaded.  His wording in the Tucker Carlson interview indicates it happened during the first impeachment, when he was, in fact, in the middle of an impeachment defense for Trump.  That period was from December 2019 to January 2020.  My hypothesis is that it may have been done again in 2021, and thus delayed any decision about executing the seizure warrant.)

Remember, Giuliani represented Trump’s 2020 election interests in state-level inquiries into voting irregularities.  The fanciful narrative of a Trump attempt to “blow up” the 2020 election, via Muh Ukrainians and Muh Vote Allegations and Muh Capitol “Insurrection,” would depict Giuliani as one of its chief agents.  And it would have been germane to the narrative of the second impeachment articles.

Rudy Giuliani and Jenna Ellis listen as President Trump speaks by phone to Pennsylvania State Senate hearing on 2020 vote irregularities, 25 Nov 2020. CBS News video

That point is kind of a throw-away thinking aid; it illustrates how invading Giuliani’s iCloud might have been formally “justified” – assuming it was.  I’m hypothesizing here based on the narrative retailed by the media, not suggesting this must have been what happened.

The point to emphasize is that waiting to seize Giuliani’s devices until after you’ve invaded his iCloud account is exactly what you’d want to do, if you had your choice of how to sequence an electronic dragnet on Giuliani, and no constraints of law to observe in respecting Giuliani’s rights.

After the FBI had exhausted its harvest from penetrating Giuliani’s iCloud account, then it was time to execute that seizure warrant, when the iCloud probe had done 90% of the work.  (Aside:  timing-wise, I also wonder if something is being prepared to preempt whatever comes out of the Arizona vote audit.)

A summary point.  Note that, as with the comprehensive invasion of Trump and his associates in 2016, the use of tool piled on tool against Giuliani was necessary because no tool has found anything damning.  So don’t expect charges to come out of this; not for any underlying crime, at any rate.  A sober analysis of this lengthy investigation with no charges indicates that if parallel construction is being done, it’s for the purpose of continuing to dangle Mayor Giuliani, and probably continue spying on him, keeping him at risk in an endless, un-concluded law enforcement proceeding.

No wonder Trump called this a terribly “unfair” situation, and said of it that it’s “a double standard like nothing anybody’s seen before.”  Yes.  Contrast it with the utter refusal to seriously investigate the Bidens.  It’s the tools of “law” being turned upside down to be used for mafia-style political warfare.

J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.

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