To be sure, Durham’s report reminded us of the many errors highlighted by the Justice Department Inspector General Michael Horowitz in 2019 regarding the evidence used to obtain a FISA order on Carter Page, a former foreign policy advisor on the Trump campaign. And that’s also where some of the confusion starts. According to Politico, Rep. Jim Jordan (R-OH) has used Durham’s report to argue that Section 702 “cannot be reauthorized as is,” and Rep. Chip Roy (R-TX) has stated that Durham’s report will “absolutely” play a role in the reauthorization debate. Rep. Kelly Armstrong (R-ND), called Durham’s report an “indictment” of Section 702.

The conflation of the reauthorization of Section 702 with Crossfire Hurricane suggests that these members of Congress are, at best, unaware of the details of the program or, at worst, deliberately muddying the waters in an effort that will have the unintended consequence of substantially benefiting our foreign adversaries. It therefore is worthwhile to understand what the Section 702 debate is about, and what it is not about.

Unfortunately, too many journalists – and editors and producers – have fallen prey to these misunderstandings in their own reporting and commentary or have allowed such statements by officials to be published without explaining to readers the logical flaw in making these connections.

The purpose of this short explainer is not to do a deep dive into the minutiae of Section 702 or the legal issues raised by the program, but rather to offer a general, broad-brush view of national security electronic surveillance, and how to differentiate the issues raised by surveillance of U.S. persons (USPERs, a useful acronym adopted by the government) in cases like Crossfire Hurricane from the issues raised by Section 702.

The Carter Page Surveillance Was Conducted Under Title I of FISA, Not Section 702

Let’s begin with a quick primer on FISA. The Foreign Intelligence Surveillance Act was passed in 1978 in response to the abuses in the intelligence community revealed by the Church and Pike oversight committees following Watergate. The framework was created as part of a compromise between the legislative and executive branches on the legal parameters of electronic surveillance conducted for national security (as opposed to criminal) investigative purposes. In accordance with a 1972 Supreme Court case which acknowledged that surveillance conducted for the purpose of obtaining intelligence on foreign powers need not be as onerous as the standard for domestic security surveillance to be reasonable under the Fourth Amendment, FISA creates for foreign intelligence an analogous process to Title III of the Omnibus Safe Streets Act of 1968, which governs the procedure to obtain “wiretaps” for criminal investigations.

Specifically, FISA established a secret court – the Foreign Intelligence Surveillance Court – comprised of 11 (originally 7) Article III judges selected by the Chief Justice of the Supreme Court, who sit in rotation. Unlike requests for Title III criminal wiretaps, which must demonstrate to a neutral magistrate probable cause that electronic surveillance will yield evidence of a crime, applications to the Court under Title I of FISA must demonstrate probable cause that the surveillance target is a foreign power, or an agent of a foreign power, and that a significant purpose of the surveillance is to obtain foreign intelligence information. FISA applications targeted at USPERs acting as an agent of a foreign power have a more stringent probable case standard and narrower time limits than for nonUSPERs and foreign powers (such as foreign terrorist organizations) and agents of a foreign power (such as foreign diplomats). If approved by the FISA Court, the government obtains an order (technically not a “warrant”) to be given to the target’s communication provider to commence surveillance on the target.

The big takeaway here is that applications to directly surveil USPERs are conducted under Title I of FISA, and they are done on an individualized basis – that is, for each person the government intends to surveil, it must submit a separate application to the FISA Court outlining the probable cause that the individual is an agent of a foreign power.

Title I of FISA is the exclusive statutory means through which the government can directly surveil any USPERs within the United States. It is also the exclusive statutory means by which nonUSPERs may be targeted when they are located within the geographical boundaries of the United States. Other provisions of FISA (sections 703 and 704) allow for targeting USPERs when they travel abroad under the same probable cause standard.

Section 702 is Programmatic Surveillance

The evolution of Section 702 of FISA is much more recent than the broader FISA framework, including Title I orders. Section 702 has its roots in the George W. Bush administration, which, following 9/11, engaged in non-court-ordered surveillance of communications where one end of the communication was inside of the United States, and one end was abroad (known as Operation STELLAR WIND). The government carried out this operation despite its being in part, if not wholly, illegal under FISA (though the Bush administration construed it as permissible under its Article II authority). After the New York Times exposed the Bush administration’s program, Congress moved to codify a version of it to bring it under the FISA legislative framework. This was first done temporarily through the Protect America Act in 2007 and then as Section 702 of the FISA Amendment Act in 2008. Since then, Section 702 has been periodically reauthorized, including most recently in 2018.

Section 702 permits the executive branch to conduct electronic surveillance of nonUSPERS who are reasonably believed to be located abroad. Like Title I the aim here is not criminal law enforcement but to obtain foreign intelligence information. Importantly, however, Section 702 does not provide a judicial process to review targeting of persons on an individual basis. Rather, it allows the FISC to “certify” a surveillance program presented to it by the Justice Department and for the FISC to continue to review the overall practice of the program on a periodic basis.

In order to be certified, the Justice Department must detail the following three components of the surveillance program:

• Targeting (whose communications will be obtained and how)
• Minimization (the steps the Justice Department takes to avoid the acquisition, retention, and dissemination of communications of people not intended to be captured)
• Querying procedures (how recipient agencies will search the captured communications)

Once the FISC is satisfied that the procedures comport with the Fourth Amendment and the statute, the program is certified. A key difference here from Title I surveillance is that the FISC is not approving surveillance on any particular individual, but rather, a set of procedures which authorizes the NSA to collect certain communications under the approved procedures, subject to periodic reporting to the FISC. As with Title I, Section 702 surveillance permits the Justice Department to require communications service providers to collect communications under the certified targeting procedures.

So who gets targeted? Section 702 surveillance is not based on particular individuals, but rather “selectors” – email addresses or cell phone numbers – which are associated with nonUSPERs reasonably believed to be located abroad and whose communications are likely to return foreign intelligence information. It is possible that some of the intelligence about Russia’s military movements leaked by Jack Texeira, for example, could have been obtained through 702 surveillance. Of course, communications between members of foreign terrorist organizations located abroad would also be fair game. (See, for example, White House Deputy Homeland Security Advisor Joshua Geltzer’s recent statement, in a Just Security’s podcast interview: “locating the world’s most wanted terrorist last year, I mean Ayman al-Zawahiri, the global leader of al Qaeda, involved 702 collection and of course that enabled us to remove from him the battlefield.”).

So if Section 702 targets nonUSPERs outside of the United States, why is this program so controversial? The main issue concerning USPERs when it comes to Section 702 is not direct surveillance, but rather what is known as “incidental collection.” This means that if, in the course of collecting communications from a nonUSPER reasonably believed to be located abroad (using a selector associated with that person), that person is in contact with a USPER, the USPER’s side of the communication will be captured, even though they were not the intended target. In short, some fraction of the hundreds of millions of communications collected by Section 702 will, by necessity, include a not insignificant number of “incidental” USPER communications.

The main debate in the Section 702 reauthorization is how intelligence agencies – and most importantly, an agency like the FBI with both national security and criminal law enforcement functions – utilize these “incidental” communications. As former NSA litigation counsel George Croner has written, all of the communications collected through Section 702 comprise essentially a database consisting of an undifferentiated, “primordial stew” of information. In order to glean anything of value from it, intelligence agencies must conduct a “query” – that is, seeking inside the database for a particular piece of information. Critics of Section 702 argue that using queries to search this “stew” for information related to USPERs – which has been dubbed “backdoor searches” – particularly for the purposes of criminal investigations, raises Fourth Amendment and policy concerns.

As noted previously, it is beyond the scope of this quick reference guide to explore the merits of this contention. The two-part Just Security series on foreign intelligence surveillance reform offers a detailed summary of the arguments for and against reauthorizing Section 702 as is, or whether there should be additional requirements imposed on the FBI, or the intelligence community more broadly, before the 702 database can be queried for information relating to USPERs. It should be noted that, beginning with the reauthorization in 2018, additional requirements have already been added to FBI queries of the 702 database. Some compliance issues have arisen as a result of those additional requirements, which form the central basis of the current reauthorization debate.

For now, the important point to underscore is that any deficiencies in the Carter Page FISA – highlighted either by the Justice Department Inspector General or John Durham – were not a result of Section 702: It is clear that Page’s surveillance was conducted under Title I of FISA. It may very well be that the flaws highlighted by these reports suggest needed reforms to Title I – such as tightening up the probable cause standard for individual FISAs for USPERs. (Notably, Durham wrote that he was largely satisfied with the DOJ and FBI reforms adopted since the Inspector General revealed the problems with the Carter Page and other Title I applications.) Regardless, such policy recommendations involve a discussion wholly unrelated to the technicalities up for debate with the reauthorization of Section 702.

I should note, in conclusion, that while Jordan and others are using the Durham report to conflate Title I and Section 702 of FISA, this obfuscation is not limited to Republicans. In 2018, when 702 was last up for reauthorization, Senator Elizabeth Warren (D-MA) invoked the warrantless surveillance on Dr. Martin Luther King, Jr. (on the occasion of his national holiday) to oppose Section 702. Of course, as outlined above, the entire FISA framework was implemented precisely to avoid abuses like those against Dr. King and even if he were alive and being targeted today, Section 702 would not apply to him. Such disingenuous or otherwise mistaken objections to Section 702 reauthorization, regardless of which side of the political aisle they come from, do little to advance a meaningful understanding and discussion of how to balance the need to protect the United States from foreign threats with civil liberties concerns in an evolving technological landscape.

The post Expert Backgrounder: Title I of the Foreign Intelligence Surveillance Act vs. Section 702 appeared first on Just Security.

The indictment alleges that the U.S. citizens, who were affiliated with three U.S. political groups – the African People’s Socialist Party and the Uhuru Movement (the APSP) located in Florida, the Black Hammer Organization in Georgia, and an unnamed political organization in California – engaged in a conspiracy to act as unregistered foreign agents of a Kremlin-funded group called the Anti-Globalization Movement of Russia (AGMR). The goals of the conspiracy, which spanned from 2014 to 2022, were to sow discord in the United States and further Russia’s narratives concerning the war in Ukraine. AGMR was run by a Moscow resident charged in the indictment, who was directed and supervised by two Moscow-based intelligence officers also named in the indictment. The indictment alleges that these three Russian nationals also funded and directed the political campaign of an unnamed candidate in a local election in St. Petersburg, Florida in 2019, as a precursor to broader election interference in 2020.

The Kremlin’s Strategy 1: Exploiting far left and far right fringes

The first feature of the indictment which stands out relative to recent activities involving Russia is Moscow’s coordination with purportedly left-leaning political organizations in the United States. The African People’s Socialist Party and Black Hammer (as well as the African People’s Solidarity Committee, self described as “an organization of white people under the leadership of the African People’s Socialist Party” of which one of the defendants, Penny Joanne Hess, is the chair), claim to be African liberation groups opposed to American imperialism. (Note: In a post from July 2022, the Anti-Defamation League specifically lists the Black Hammer Organization as a group espousing far-right and antisemitic views, noting that its ideology has changed over time and that it more recently maintains partnerships with groups like the Proud Boys.)

While the American public tends to associate Russian involvement with the American political right, much of the activity described in the indictment is consistent with the historical alliances of the KGB which, due to greater ideological alignment with the far left, made greater inroads with Communist, anti-colonial, and revolutionary groups. Although in recent years we have come to see greater convergence between Russian interests and the far right and MAGA ideologies, the indictment is a good reminder that Russia does not have partisan preferences when it comes to sowing discord in the United States, and in fact achieves this goal more easily when it is able to exploit “both sides” of the American political spectrum. The fact that these groups were ready and willing to work at Russia’s direction and control is evidence of “the horseshoe theory” in effect.

The Kremlin’s Strategy 2: Exploiting the racial divide

The second notable feature of the activities exposed in the indictment is the extent to which Russia continues to exploit issues involving race – but at the same time depends on masking its activities behind real or fake Black organizations and individuals to give its operations more credibility. We saw, for example, Russia’s use of “digital blackface” in the lead up to the 2016 election – fake Russian accounts posing as Black Americans or organizations on Facebook and other social media. Indeed, the Senate Intelligence Committee found that Black Americans were the largest demographic group targeted by Russia in its 2016 election efforts, a tactic that continued into the 2020 election. 

We see this simultaneous exploitation and dependence at play in the indictment, with the Russian head of AGMR, Aleksandr Victorovich Ionov, tasking defendant Hess with drafting a petition on “Genocide of African people in the U.S.” to submit to the United Nations. Ionov also directed Hess to post the petition on the White House website, so that AGMR could use its “influential information resources” to amplify the petition worldwide. Importantly, Ionov recognized that Hess’s group, which is a “white ally” adjunct to the APSP, “can only position [itself] as co-writers/supporters – after all, we’re not exactly Black to demand it for ourselves.” This telling statement highlights how valuable front groups that appear to represent Black interests are for laundering and legitimizing Russia’s efforts both in the United States and on the world stage. 

The Kremlin’s Strategy 3: Going local

Finally, the indictment portends an alarming development: Russian influence in local elections. According to the complaint, Ionov, acting under the supervision of FSB officers Aleksey Borisovich Sukhodolov and Yegor Sergeyevich Popov, provided funding and direction to a U.S. person running for office in St. Petersburg, Florida, who is unnamed but is referenced as an unindicted co-conspirator (“UIC-4”). Among other things, UIC-4 – whom the Russian defendants claimed to “supervise” – made public statements and videos in support of APSP against U.S. support for Ukraine. In writing a report about the efforts, Popov asks Ionov, “Our election campaign is kind of unique. Are we the first in history?” Indeed, this type of electoral interference appears to be a new strategy, as Ionov writes to Popov in another report, “Going forward, it will allow [sic] to carry out more effective campaigns during municipal elections, and [UIC-4’s] and Jaycee’s [referring to defendant Jesse Nevel] experience in the latest election campaign in Florida will lay the groundwork for a new electoral base.”

To be sure, the 2020 presidential election was still the “main topic of the year,” according to reports between the Russians involved in the local campaigns (and the 2022 midterms were another main target according to the U.S. Intelligence Community’s Annual Threat Assessment). UIC-4’s campaign was also occurring in 2019. However, there is no doubt that the events of January 6th, and in particular the fake elector scheme which was part of the broader plot, underscored the extent to which corruption and coopting of local and state officials can have an outsized impact at the national level. The protests at school board meetings and against local election officials since January 6th have illustrated the potential to create chaos at the local-yet-nationwide level. And antidemocratic efforts in state legislatures – including the recent expulsion of Democratic lawmakers in Tennessee and Montana – has also likely generated ideas for Russia on how it can sow chaos and delegitimize the democratic process by influencing individuals who win state elections. Russia’s cognizance – that promoting disruptive candidates at municipal and state levels can further its own goals – stands to further accelerate democratic erosion.

* * *

There is more in the indictment which I have not covered here, including Russian defendants funding a demonstration in support of the secession of California from the United States, organizing a protest against a(n unnamed) media company which had restricted posts supporting Russia’s invasion of Ukraine, and directing Black Hammer to hold a rally in front of an Atlanta-based media company in honor of Russian Victory Day in 2022. The Russian defendants also enlisted APSP’s assistance and cover in protesting Russia’s partial ban from the 2016 Olympic games in Rio. In fact, the sheer breadth of activities undertaken by the relatively few defendants in this one complaint and in this one setting suggests that this is only the tip of the iceberg in terms of Russia’s ongoing operations in the United States. 

The charges also highlight the tradeoffs incurred by the Justice Department in exposing Russia’s activities and holding accountable those in the United States who aid and abet the Kremlin: After initially charging Ionov in July 2022, the U.S government captured a communication between him and the FSB in which he tells his handler to “trash the phones.” That this was also the end of the conspiracy alleged in the complaint suggests that bringing these activities to light – thereby neutralizing them – also ended the Intelligence community’s ability to collect further information.

Photo credit: The Moscow International Business Centre, also known as Moskva-City (Maksim Ozerov/Getty Images)

The post The April 2023 Indictment for Russian Election Interference and Threats to U.S. Democracy appeared first on Just Security.

Much attention has been paid to the troubling institutional culture among agents at the U.S. Secret Service who sympathized with, and since minimized their advanced knowledge of, the violent assault on the Capitol on January 6. It is time to focus similar attention on the FBI. To be sure, the Bureau has done a commendable job over the last eighteen months. It has helped bring to justice hundreds of the “foot soldiers” from January 6 as well two organized militia groups – the Oath Keepers and Proud Boys – indicating that by and large agents across all field offices are following their constitutional duty to uphold the law without fear or favor. However, these victories have masked what appears to be internal resistance by at least a small minority of agents who believe that the January 6 investigations are unjustified or overblown. That’s a factor which, it stands to reason, may have played a role in the lack of proactive measures taken by the FBI in the face of multiple warnings of potential violence on January 6. The evidence presented by the January 6 Committee, combined with reporting over the last year, offer clues into what may be going on behind the scenes at the Bureau. If the picture painted by these sources is true, it suggests an internal, long-brewing problem that the FBI needs to investigate and nip in the bud. That, to date, FBI Director Christopher Wray has not taken action to address the problem internally also suggests that congressional oversight committees may need to get involved and demand answers.

Early Red Flags

Indications that the FBI did not have a coherent answer to the Bureau’s actions and awareness preceding the January 6 attack was evident from the beginning. 

Within two days of the assault on the Capitol, Director of the Washington field office, Steve D’Antuono “had told reporters … that the FBI had no intelligence suggesting that violence was brewing before Jan. 6.” At the first press conference following January 6, held six days after the attack, neither Director Wray nor the Acting Attorney General, Jeffrey Rosen, were present – a notable absence in the aftermath of a domestic terrorist attack of this magnitude. The individuals who were there, D’Antuono and Acting U.S. Attorney for the District of Columbia Michael Sherwin, skirted around the issue of what the FBI knew before the attack. D’Antuono did acknowledge that the FBI had received a report from its Norfolk field office indicating plans for violence at the Capitol, contradicting his statements four days earlier that the FBI had no information in its possession indicating that the pro-Trump events would be anything other than a lawful demonstration. The Norfolk memo referenced “an online thread discuss[ing] specific calls for violence” against members of Congress. At the press conference, D’Antuono indicated that since the Norfolk memo was unattributable to any individual, there was nothing actionable for the FBI to do – which seemed to indicate that this was a singular, isolated piece of intelligence. 

In short, the FBI’s statements in the first week following January 6 foreshadowed the contradicting information that would emerge in later months. 

In June 2021, Director Wray reiterated D’Antuono’s assessment in his testimony before Congress, stating that the Norfolk memo had been appropriately shared with other law enforcement partners but that, “to my knowledge,” the FBI had no other intelligence indicating that individuals planned violence at the Capitol. However, both of these claims are belied by actions taken by the FBI at the time. Specifically, D’Antuono stated shortly after the attack that prior to January 6, the FBI had “developed some intelligence that a number of individuals were planning to travel to the DC area with intentions to cause violence,” and persuaded them not to travel (yet another statement that was at odds with his initial one following the attack). This type of “knock and talk” intervention would be permitted only if these individuals were subjects of open investigations into potential criminal activity, given the civil liberties concerns that would otherwise be implicated in law enforcement disrupting travel to a political event.  Wray, along with the Deputy Director for Counterterrorism, Jill Sanborn, also testified that the FBI could not, under its internal rules, monitor social media posts of people publicly advocating or planning violence, due to First Amendment concerns. This was not entirely accurate. The FBI had latitude to monitor social media in order to conduct threat assessments and to use evidence of planning and coordination of violence on social media to open a predicated investigation (which happened with at least four people later charged under an anti-riot statute in the aftermath of the killing of George Floyd). Indeed, Wray told Congress that the Attorney General Guidelines prohibited the Bureau from performing such online monitoring without proper predication, but the Attorney General Guidelines explicitly encourage the FBI to conduct such online monitoring in advance of a major national event like the one at the Capitol without the need for the predication Wray described. 

A final red flag in the early months following January 6 was an August 2021 Reuters article reporting that the FBI had “scant” evidence that Jan. 6 violence was coordinated.  The article was sourced by four “former and current law enforcement officials” who claimed to have direct knowledge of the investigation. The sources made several conclusive claims, including that “there was no grand scheme with Roger Stone and Alex Jones to storm the Capitol and take hostages” and that there was “no evidence” that the Oath Keepers and Proud Boys had “serious” plans for what to do if they made it inside the facility. No evidence? None? “One source said there has been little, if any, recent discussion by senior Justice Department officials of filing charges such as ‘seditious conspiracy.’”

Of course, Stewart Rhodes and four other members of the Oath Keepers were charged with seditious conspiracy five months later, with the indictment laying out a highly detailed plan for taking over the Capitol, including planting reinforcements outside of D.C. The Proud Boys seditious conspiracy charge followed. In addition, Stone’s role in creating the “Stop the Steal” movement as well as his association with both the Oath Keepers and the Proud Boys (including an encrypted chat group “Friends of Stone” that the leaders of the two militias used to communicate with each other during the violence on January 6) makes his role in planning the attack at least an open question, at best. The information provided by the anonymous sources was therefore not just premature and oddly specific, but also wrong – which raises the question of whether there was an intentional attempt by FBI insiders to shape the public narrative on January 6. 

So what do we make of these conflicting, sometimes incoherent, and even incorrect statements by FBI leadership and anonymous internal sources following January 6? The most generous interpretation was that the FBI, at this early stage, was simply caught flat-footed by the January 6 attack, much like it was on 9/11. If the Bureau did not have enough actionable intelligence, and was treading extra-cautiously to avoid being accused (again) of engaging in politically biased investigations based on animosity toward Trump, then maybe there was another failure to “connect the dots”  – perhaps facilitated by implicit institutional and individual biases that did not view the rhetoric leading up to the Trump rally through a terrorism lens. Until the January 6 hearings this year, that was at least a plausible explanation.

New Details That Have Emerged

Unfortunately, recent revelations by the January 6 Committee and now the Oath Keepers seditious conspiracy trial make clear that the FBI’s inaction was not a lack of intelligence, or merely a failure to connect the dots. In its most recent hearing, the January 6 Committee revealed that the FBI, in coordination with other law enforcement agencies including the Secret Service, was closely monitoring activity leading up to January 6, including tracking 52 threat reports from field offices across the United States. One FBI intelligence bulletin indicated that right wing groups were establishing “quick reaction forces” outside the Capitol. These QRFs would later be cited in the seditious conspiracy indictment against the Oath Keepers. One member of the Proud Boys who was an FBI informant had advised his handler in December of plans by some members to bring weapons to the Capitol on January 6, and texted his handler as the attack took place. At the Oath Keepers trial, the “first major piece of evidence” that DOJ prosecutors introduced to establish the group’s scheme to head to Washington and oppose the peaceful transfer of power was a secret recording of a Nov. 9 meeting with the group’s leader Stewart Rhodes. The member of the group who recorded that meeting contacted the FBI in November 2020 with his concern that the Oath Keepers were planning on “going to war with the United States government.” It was only after he contacted the FBI again in March 2021 that he was interviewed and the authorities obtained the recording.

These pieces of threat information preceding January 6 are in addition to information which had been provided to the FBI – ranging from tips and warnings to finished intelligence products – that have surfaced through various government and press reports. Based on Just Security’s January 6 Intelligence Failure Timeline, the FBI received at least 20 independent pieces of intelligence between November 9 and January 6, from sources including sister agencies, social media platforms, and public officials. They are summarized in the Table below.

From Erik Dahl, January 6th Intelligence Failure Timeline, Just Security, June 7, 2022)

In short, the dots had apparently been connected and were simply not acted upon.

Adding to this disturbing picture are additional revelations about the institutional culture behind the scenes at the FBI. In an email written to then FBI Associate Deputy Director Paul Abbate a week after the Capitol attack, the author (who appears to be a former agent or otherwise familiar with individuals from multiple field offices across the country), warns that “a sizeable percentage of the employee population…felt sympathetic to the group that stormed the Capitol.” (Abbate was later promoted to Deputy Director of the FBI.) The email contains specific details from different field offices. The author also chillingly recounts an awareness of several Black agents who turned down opportunities to join the SWAT team because they were not confident that their fellow SWAT agents “would protect them in an armed conflict.” 

While the email author’s perception of the pervasiveness of such sentiments are subjective, the revelation of this email came on the heels of the suspension of an FBI agent , Steve Friend, who refused to participate in a SWAT raid of a suspected January 6 defendant, believing that the investigations violated the individuals’ Sixth and Eighth Amendment rights. (NB: The Sixth and Eighth amendments deal with speedy trial and cruel and unusual punishment post-conviction, respectively, not investigations or arrest.) The New York Post, which interviewed Friend following his suspension, reported his claim that “his concerns are shared by large numbers of rank-and-file FBI agents across the country” but who do not vocalize them.”

By contrast, agents familiar with the Hunter Biden investigation have been quick to leak that the FBI has enough evidence to prosecute him for tax crimes and a false statement on his application to purchase a gun. The sourcing is odd, mainly because DOJ prosecutors – not agents (many of whom are not lawyers) – make the final determination regarding whether the evidence gathered is sufficient to prosecute based on the facts. (Recall that a bipartisan and DOJ Inspector General critique of former FBI Director James Comey was that he usurped this role from the Attorney General.) As with the Reuters report last year, the story appears to push a partisan narrative or at least to create public pressure for the U.S. Attorney for Delaware to act. In this vein, it has echoes of the vocal, anti-Hillary Clinton “Trumplandia” contingent in New York who apparently leaked details about her investigation to Rudy Giuliani before the 2016 election and arguably forced Comey’s hand in informing Congress that her investigation had been reopened before the election. 

Given all of these facts, it is more than fair to wonder whether the DOJ’s delay in investigating Trump’s role in January 6 was due to stonewalling or slow rolling by agents who did not want to aggressively pursue investigations into Trump. The New York Times report following Cassidy Hutchinson’s testimony hinted that might have been the case. The article stated that the hearing had “jolted” the Justice Department into looking at Trump’s central role in the violence on January 6, noting that earlier efforts to expand the seditious conspiracy investigation had been “shot down” by top officials at the FBI. Although there may have been valid legal reasons for doing so (top DOJ officials were also opposed), the August 2021 Reuter’s report all but absolving Trump and his inner circle of responsibility raises the specter that this was effectively a preordained conclusion on this topic by investigators. More recently, Bloomberg reported that there is even resistance among FBI agents to pursuing charges against Trump for the Mar-a-Lago documents – an arguably much more straightforward case with ample precedent for prosecuting similar conduct – because they do not feel that it would be fair, given that Hillary Clinton was never prosecuted for having classified emails on a private server. (It should be noted that the factual and legal differences between the Trump and Clinton cases, including the applicable statutes, make this an apples-to-oranges comparison.)

Needed Answers

After 9/11, the FBI was under intense scrutiny by the 9/11 Commission, which painstakingly reviewed each missed “dot” in the timeline leading up to that attack. The FBI’s failure was considered so severe that there were proposals at the time to break up the Bureau’s intelligence and law enforcement functions, and create a separate agency for the latter. It is a testament to former Director Bob Mueller’s persuasiveness and perseverance that this did not happen; Mueller held the agency together, upgrading its technological infrastructure and standing up an Intelligence Division tasked with coordinating and sharing information with the rest of the intelligence community.

Perhaps because of his experience with 9/11, Mueller took similar steps with other national catastrophes. For example, he ordered an independent internal investigation into the FBI’s actions preceding the 2010 shooting at Ft. Hood, Texas, which left 13 DoD employees dead and 32 wounded. That investigation, like the 9/11 Commission, identified loopholes in protocol and identified specific recommendations to prevent such a tragedy from occurring again.

Yet, to date, there has been no action taken by Wray to examine what failed internally with respect to January 6, whether as a matter of policy or culture or both.

On January 15, 2021, the Justice Department’s Office of Inspector General (OIG) announced a review of “the role and activity of DOJ and its components in preparing for and responding to the events” [of January 6, but this investigation falls short of what the current moment requires for a few reasons. For one, an OIG investigation does not have the same stature as a director-driven review, nor does it signal to agents the importance placed on the Bureau’s response to this event by its own leadership. In addition, the OIG’s review does not include within its ambit a review of the institutional culture, including sympathy among agents with January 6 insurrectionists, nor a review of leaks that may be emanating from these same agents. Even if it did, there is reason to doubt it would be fruitful: The last OIG investigation into the “Trumplandia” leakers took almost four years, and ultimately concluded that it could not identify who they were. (The head of the New York field office in 2016, Bill Sweeney testified to Congress in 2018 that the OIG had never even interviewed him – even though the leaks were coming from that office.) An OIG investigation is not an adequate substitute for an inquiry ordered by Wray himself.

In light of this inaction, there should be a comprehensive congressional oversight review of the FBI. Director Wray should be called to personally account for the Bureau’s inaction leading up to January 6, with respect to at least the following five issues:

1. Discrepancy between congressional testimony and the intelligence information the FBI possessed;
2. Clarification on use of social media in investigations, and why it was not monitored leading up to January 6th;
3. Specific efforts made to curb the “permissive” culture of leaking which the Office of Inspector General found in its 2021 report;
4. Attempts made to identify agents who sympathize with the attack on January 6, and to screen new agents for extremist views; and
5. Specific steps taken to prevent January 6th failures from occurring in the future.

The status quo at the Bureau is an untenable situation, given that politically-motivated violence continues, even against the FBI itself. And the kinds of political pressures on the Bureau during the Trump presidency may yet return in one form or another. With an intelligence and law enforcement failure of the magnitude of January 6, the country needs an examination of the structural flaws and the personal ones as well that brought us to this point.

IMAGE: FBI Director Christopher Wray testifies during a hearing before Senate Judiciary Committee at Hart Senate Office Building on Capitol Hill August 4, 2022 in Washington, DC. The committee held a hearing on “Oversight of the Federal Bureau of Investigation.” (Photo by Alex Wong/Getty Images)

The post The Missing Review of FBI’s January 6 Intelligence and Law Enforcement Failures appeared first on Just Security.

The FBI’s execution of a search warrant on former President Donald Trump’s Mar-a-Lago home on August 8 raises the inevitable question: What crime(s) might he have committed? One thing is for sure – unlike the January 6 investigation, in which it is still unclear whether or not the Justice Department (DOJ) believes that Trump himself committed any crimes, the Mar-a-Lago search indicates that DOJ does believe that a crime has been committed or was being committed and that evidence of that crime was present on the premises. That much is clear, although we are still at the earliest stages of understanding this development and do not have the search warrant and attachments, much less the supporting affidavit. While DOJ and judicial approval of the search warrant doesn’t necessarily mean that Trump himself is suspected of a crime, it is highly likely that he is the focus of the investigation. 

To that end, it’s worth reviewing the possible federal criminal violations for which Trump might be charged. We do so below based on the evidence we have available so far, and recognizing that Trump may not be charged (including because of the possibility that the government is satisfied merely to recover the classified documents or for other as yet unknown reasons). Our experience is that search warrants often result in charges—but not always. 

We have formed that experience over a collective half-century plus of handling these issues as lawyers. Rangappa has addressed these matters as an FBI agent and as a legal analyst since that service. Eisen worked on these issues as the White House ethics czar, where he had responsibility for seeking compliance with presidential records rules during the Obama administration and the transition thereto. In his White House service, he also helped write Executive Order 13526 restructuring the classification system. Moss addresses these issues on a regular basis at the core of his legal practice, where they are also an important part of his firm’s work. 

Timeline 

We turn first to a review of the timeline of events, which may be relevant to any crime charged. In January 2022, news reports indicated that, following months of negotiations between the office of the National Archives and Records Administration (NARA) and Trump’s lawyers, 15 boxes of documents and government records, including classified ones, were retrieved by NARA from Trump’s home in Mar-a-Lago. The Presidential Records Act requires that all records relating to a president’s official duties be turned over to the National Archives at the end of their administration, under penalty of legal action. In February 2022, shortly after their retrieval of these documents, NARA officials referred the matter to the Justice Department, and one week later found among the recovered boxes “items marked as classified national security information.” 

Around this time, reports also emerged that some of the documents retrieved by NARA included papers that had been torn apart and pieced back together. Corroborating reports from 2018 of Trump’s tendency to rip up official documents, three White House officials told reporters in February 2022 that they had seen Trump tear apart papers after he had finished reviewing them. By May, the DOJ had launched a grand jury investigation into Trump’s handling of official government documents and issued a subpoena to NARA for the documents it had retrieved from Mar-a-Lago. As a part of this probe, over the course of April and May 2022, FBI agents conducted interviews with Trump aides working at Mar-a-Lago. In June, investigators from the Counterintelligence and Export Control section of the DOJ visited Mar-a-Lago, at which point Trump’s lawyers showed DOJ officials the location where the remaining documents were being kept. Five days later, on June 8, the DOJ advised Trump via a letter to secure the location they were shown. Aides subsequently added a padlock. 

This Monday, the FBI hauled away roughly 10 more boxes according to the Wall Street Journal. 

 18 U.S.C. 1924 – Unauthorized Removal and Retention of Classified Documents or Material

Since reporting indicates that the documents the agents were searching for included classified ones, this statute appears at first glance to be an obvious possible violation. Section 1924 makes it a crime to knowingly remove classified documents with the intent to retain them in an unauthorized location. There are a few problems with this statute, however, as applied to Trump. 

 One potential stumbling block is that the statutory provision limits its scope to an “officer, employee, contractor, or consultant of the United States.” There is scant case law addressing if the president of the United States would qualify as an “officer” in this particular statutory context, and the statute itself provides no clarity. A recent ruling in one of the January 6th civil lawsuits against Trump brought by, among others, two Members of Congress, concluded the statutory term “officer” could encompass holders of political office, such as a Member of Congress. While informative, how that analysis would be applied in a criminal context with respect to the then-president remains unclear. 

There is also the issue of whether Trump actually declassified the records prior to the end of his presidency. Former Trump staffer Kash Patel has publicly made this very argument, claiming that many of the records were declassified by Trump. 

If prosecuted under Section 1924 (or one of the Espionage Act provisions outlined below), this defense that Trump had declassified the records would certainly be front and center in the case. Whether that argument would hold up in court is difficult to predict with any real certainty because this is completely uncharted territory. There has never before been a president prosecuted for mishandling classified information. The only guidance that exists are the security classification rules that ordinarily apply to holders of access to classified information. 

Strictly speaking, even if Trump ordered the declassification of the records (verbally or in writing), what is likely to matter for purposes of handling and storing the records after he left the White House was if the mandatory follow-on actions occurred. Classified documents have classification markings in the header and footer of each page, indicating the level of classification for the document as a whole. Furthermore, classified records have cover sheets that specifically indicate when the record was classified, by whom, and under what authority, as well as when the classification expires. 

If Trump did in fact order the declassification, he still needed to make sure his staff took the necessary next steps to modify the classification markings on the documents before he could actually handle and store the records (as a private citizen) as if they were unclassified. Under security classification rules, a classification marking on a document has to be treated as valid and binding unless and until a subsequent marking replaces it. Appropriate government staffers would have needed to cross out the classification markings in the headers and footers, and stamped “declassified” on the record noting when it was declassified, by whom and under what authority. Since that does not appear to have been done with the classified documents reportedly identified to date, the documents remain classified and had to be treated as classified for handling and storage purposes. 

These are Security Classification 101 procedures, but none of them were material to Trump while he was still the president. He held ultimate authority over classification issues until noon on January 20, 2021. When Joe Biden became the President, however, Trump became just another private citizen who was obligated by federal law not to willingly remove classified records from a secure location and place them in an unsecured basement at Mar-a-Lago. When he took the records from the White House, shipped them to Florida, and stored them at Mar-a-Lago, he arguably ran afoul of Section 1924. Further factual development will, of course, be necessary to know for sure. 

 18 U.S.C. 2071 – Concealment, Removal, or Mutilation Generally

This is perhaps the most-discussed statute since the search, including because it carries as one of its penalties the possible disqualification from holding public office. (Whether that disqualification could apply to the presidency, or whether it would be an impermissible variation of the constitutionally established qualifications for that office, is a question for another day.) Section 2071 makes it a crime to willfully and unlawfully remove a government record with the intent to conceal or destroy it or to conceal or destroy such documents already in one’s custody. This is a more attractive statute for a prosecutor to apply to Trump than Section 1924, mainly because it does not require that the documents be classified – it applies to all government records.

It also seems to fit the facts we know so far, namely that the FBI reportedly searched locations within Mar-a-Lago other than the room originally shown to DOJ during their June visit – suggesting that they had received information in the interim that additional documents were being stored, or concealed, elsewhere. For example, FBI agents allegedly searched Trump’s personal safe and his closet. Evidence that Trump had failed to reveal the full scope or all the locations where government records were being stored both to NARA and then to DOJ would also meet the heightened intent standard required by Section 2071, which is that the defendant act “willfully.” This is a heightened standard which typically requires knowledge of the defendant that the conduct is generally illegal. It would be surprising if Trump was not repeatedly informed of the laws for the handling of government documents while he was in office. Moreover, it is also likely that DOJ and NARA warned Trump in writing that retention of such documents would be unlawful.

A question remains, however, whether the statutory requirement that the records in question be “filed or deposited” with a court or a public office or public or judicial officer would apply in this case. Given that any charge would undoubtedly be appealed to the Supreme Court, this textual reading of the statute may offer Trump a counterargument that any records or classified documents in his possession would not be a “filing” in the strictly technical sense. Here too more review is necessary to form a final judgment on the applicability of the statute. 

18 U.S.C. 641 – Public Money, Property or Records

A partially overlapping offense to Section 2071 can be found in 18 U.S.C. 641, which provides for criminal penalties against anyone who “steals, purloins, or knowingly converts to his use or the use of another” government property. The argument here would be that Trump did just that with respect to the documents at issue. This statute has gotten less attention in the immediate post-search discourse. It is perhaps a looser fit than Section 2071, which specifically references records, papers, and documents (but only slightly looser since Section 641 does reference “any record”). But, on the other hand, the penalties are potentially greater, with imprisonment of up to ten years depending on the circumstances. 

18 U.S.C. 1361 – Government Property or Contracts

 Section 1361 applies to anyone who “willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof.” The severity of the penalty depends on the extent of the damage done to the government property in question, in this case the official documents that Trump is alleged to have mishandled including during his White House tenure.

This statute might come into play given, for example, the numerous reports and recent photographs evidencing Trump’s penchant for ripping up notes and attempting to flush them down the toilet. While an isolated episode might normally not trigger the statute, here there appears to be a consistent pattern. In that regard, also relevant are public reports that the January 6 Committee received pieces of paper that had been taped together from shreds after the Supreme Court ordered the National Archives to provide the committee with relevant documents from the Trump White House. 

It should be noted that Sections 1924, 2071, and 1361 concern removal, storage, and destruction. All of these are serious offenses – particularly as they pertain to classified documents – but prosecution of violations risks being seen as excessive given that Trump was at least by appearances trying to cooperate with government officials. 

Given that DOJ decided to take the especially aggressive step of executing a search warrant at Mar-a-Lago – despite prior attempted coordination with Trump and his lawyers – it’s possible that even more serious charges are in play. For those we turn to the suite of espionage statutes contained in Chapter 37 of the U.S. Code, Title 18. A hint that these might be the underlying crimes is suggested by the June 2022 visit to Mar-a-Lago of the Counterintelligence and Export Control section of DOJ: The Justice Department website states that this section focuses on “national security, foreign relations, and the export of military and strategic commodities and technology.” In particular, this section prosecutes crimes relating to “espionage, sabotage, neutrality, and atomic energy.” 

18 U.S.C. 793 – Gathering or Transmitting Defense Information

This statute, which does not contain the “officer” qualifier of 18 U.S.C. 1924, covers criminal liability for anyone who improperly possesses, disseminates or disposes of “information relating to the national defense.” While that phrase is not limited to information that is classified under executive order, it is commonplace for the two designations to overlap in the criminal context and likely would do so here. 

At least two subsections of this statute could be viable in the case of Trump’s actions, and both operate from the likely premise that Trump originally had authorized access and control over the records prior to the end of his term. 

Subsection (d) concerns the willful delivery of the information to any person not entitled to receive it or the retention of the information and failure to return it to the United States when demanded. By having the records transferred through unsecured means from the White House to Mar-a-Lago after he was no longer the president, and then having those records stored in an unsecured location at Mar-a-Lago, Trump arguably ran afoul of this provision. This was even made more clear by the fact that after Trump returned the initial 15 boxes’ worth of records in February the FBI reportedly found more classified records at Mar-a-Lago in June. 

Subsection (f) contains two prongs of potential applicability to Trump. 

The first, which was discussed at great length during the investigation into Hillary Clinton’s email server, is when the individual “through gross negligence” permits the information to be removed from its proper place of custody. The statute does not define what qualifies as “gross negligence,” and what little case law exists on the matter focused instead on whether the provision mandated the involvement of a third party to qualify (the court concluded it did not). 

Assuming for the moment the provision is not unconstitutionally vague, Trump’s exposure to this provision would be the byproduct of his haphazard and lackadaisical manner of having the records boxed up and shipped to Mar-a-Lago. In a conventional White House not consumed with efforts to overthrow an election, the White House Counsel’s Office and relevant personnel would have sorted through the president’s records weeks before Inauguration Day and ensured that any classified records were properly secured. Reporting indicates that Trump’s White House was focused on “other matters” until the final days of Trump’s presidency, and the resulting failure to separate out classified records may have been the result. 

 The second prong, failing to promptly return national defense information upon learning it was illegally removed from a secure location, would have particular relevance in light of media reporting that Trump continued to have classified records at Mar-a-Lago even after his staff returned records in February. The fact that the FBI had to go so far as request that Trump staffers at Mar-a-Lago secure the room where the remaining classified records were still stored (which the aides then did with a padlock), and that the FBI’s search warrant authorized opening of safes and other locations both give reason to believe the government suspected there were more classified records stored at Mar-a-Lago. 

A third potential subsection is 793(e). This subsection is identical to subsection (d) except that it applies to information that is in the subject’s unauthorized possession. This would be unlikely to apply to Trump’s conduct while in office, of course. However, it could be considered for his continued possession of the record after January 20, 2021, particularly given the indication Trump was informed he had no right to the documents, was asked to return them, and chose not to do so. 

Conclusion       

As noted above, we are still in the earliest stages of understanding the dramatic new development represented by the execution of the search warrant at Mar-a-Lago. Important information has begun to emerge in the public reporting since Trump’s premises were searched, and we can expect still more in the period to come. In important cases, the search warrant and the attachments providing some additional detail, sometimes including one or more of the crimes as to which probable cause was found, tend to emerge. Having the underlying government affidavit that was presented to the court would be even more helpful, although we can be even less certain that it will be published, including because it may well contain sensitive information concerning Trump’s handling and retention of classified documents. But even in an uncertain landscape, indeed, particularly in those circumstances, it is important to have some points of reference. We offer this guide in that spirit. 

This essay addresses rapidly evolving events and will be updated as the facts warrant. Reader comments are welcome. 

Image: Local law enforcement officers are seen in front of the home of former President Donald Trump at Mar-A-Lago in Palm Beach, Florida on August 9, 2022. – Former US president Donald Trump said August 8, 2022 that his Mar-A-Lago residence in Florida was being “raided” by FBI agents. (Photo by GIORGIO VIERA/AFP via Getty Images)

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One of the recurring patterns of the U.S. intelligence community’s response to emerging threats is that it is often reactionary. Being caught unaware of the urgency of a new danger results in a pendulum swing: creating new priorities, policies, and procedures to correct those gaps. This is to be expected. After all, intelligence agencies – while designed to respond rapidly to discrete events – are, policy-wise, bureaucracies that are like large, slow-moving ships. Turning them around can take some time and effort, but once they face a new direction, they can barrel full speed ahead. Our multi-decade response to 9/11 is a classic example of both the resilience of the intelligence community even after a massive failure, but also how this reactionary approach set us up to repeat the cycle of missing other emerging threats over the horizon – particularly with Russia and domestic terrorism.

In its report, the 9/11 Commission concluded that the successful arrest and prosecution of the perpetrators of the first bombing of the World Trade Center in 1993 “had the side effect of obscuring the need to examine the character and extent of the new threat facing the United States.” In particular, the FBI’s focus on its reactive, law enforcement function – which resulted in tangible and visible credit to the agency and specific field offices – took precedence over forward-looking counterintelligence and counterterrorism efforts, which had fewer immediate returns. For the CIA, the end of the Cold War led to significant budget cuts after 1992 – the report notes that in 1995, for example, the agency hired only 25 new officers. Without the unifying focus of the Cold War, the CIA’s mission seemed unclear and adrift; the Commission observed that the CIA found it difficult to adapt to a world without a clear adversary, and that its Cold War resources were either unable to be prudently reallocated or were diluted among too many different priorities. 

John Sipher, a 25-year veteran CIA officer who served in Moscow, notes that the disconnect was also rooted in administration priorities. “Among the national security agencies, the CIA is immediately responsive to the needs and interests of the White House,” Sipher emphasizes. “The lack of interest in foreign policy for much of the Clinton Administration left the Agency to make do as best it could. It tried to anticipate policymaker interest by reading tea leaves – not the best way to provide tailored intelligence.”

The events of 9/11 changed all of this. The FBI, for its part, bore the brunt of the 9/11 Commission’s criticisms but, thanks to the leadership of then-Director Robert S. Mueller III, avoided having its intelligence function severed from its law enforcement one. Along with legislative changes like the USA PATRIOT Act which made it easier to engage in foreign intelligence surveillance, increased funding for hiring new agents, and awarding “stats” for field offices pursuing terrorism related cases, the Bureau made immediate, if incremental, progress toward a comprehensive and consistent counterterrorism effort across its 56 field offices. (One particularly emblematic expression of this shift was in the ongoing case simulation at Quantico, which at the time was a bank robbery investigation – my new agent class was one of the first to work on a terrorism angle incorporated into the scenario.) Similarly, the CIA had clearer intelligence collection priorities following 9/11, and increased its intelligence sharing through coordination by the newly-created Director of National Intelligence.

To be sure, the intense focus on preventing another terror attack on American soil was effective in thwarting many plots in motion. From the 2002 arrest of Jose Padilla, who planned to build and detonate a dirty bomb, to the disruption in 2009 of an al-Qaeda plot to bomb the New York City subway, there is no doubt that the intelligence community learned many of the tragic lessons outlined in the 9/11 Commission Report and acted to ensure they never happened again. But this pendulum swing, while necessary, also went too far in several respects, legally and morally, including the warrantless surveillance of Americans (over the early objections of the Justice Department) under STELLAR WIND and the use of enhanced interrogation techniques (including torture) on prisoners at Guantanamo and Abu Ghraib.

These excesses were ultimately exposed and generally corrected, but the longer term consequence of the constant government and media focus on preventing another 9/11 is that it blinded us to two of the major threats which currently pose an existential threat to democracy. 

The first is Russia. The end of the Cold War, and the belief that we had “won,” obscured the growing threat posed by Moscow and even made it easier for the Kremlin to operate inside the United States. Even after the arrest of 10 Russian “illegals” in 2010 – spies operating without diplomatic cover – the threat from Russia was treated as a punchline, rather than a serious threat. Case in point: After Mitt Romney identified Russia, not al-Qaeda, as the biggest geopolitical foe to the United States, then-President Barack Obama launched a zinger at the 2012 presidential debate: “The 1980s are now calling to ask for their foreign policy back.”

More importantly, this posture shaped the public’s perception of what constituted a foreign “threat” to the homeland. To wit: If it wasn’t connected to the Middle East, and involving explosions and dead bodies, it wasn’t really dangerous. This outlook came to haunt the United States in 2016, when evidence of Russia’s disinformation operation in the presidential election came to light. It became apparent that, at least for some people, Russia’s interference only mattered if it ended up affecting the final vote. The lack of evidence that it did so (something that would be difficult to prove, since Russia’s effort was ultimately a psychological operation) resulted in ambivalence and partisanship over the level of response required. Consider, by contrast, how even unsuccessful terrorist attempts which resulted in no casualties, like Richard Reid’s failed “shoe bomb,” led to onerous security measures in airports – ones that are still in place, over a decade later. What’s more, in the years that followed the Russian military intelligence’s 2016 attack on the United States, Americans identifying with President Donald Trump’s party increasingly warmed toward Putin and believed Russia was less of a critical threat. The basis for that outcome was laid before Trump stepped into office in part because the U.S. government had not oriented itself or the American public toward understanding the true nature of the danger posed by Russia.

This myopic focus on Islamic terrorism also eclipsed the growing threat of white nationalist terrorism and militia movements in the United States. If there was a missed through-line from the 1993 World Trade Center bombing to 9/11, there was another one between Oklahoma City and January 6. As Professor Kathleen Belew, a leading expert on white nationalism, has written, the declaration of war by the far right on the U.S. government reached its pinnacle in 1995 with the bombing of the Alfred P. Murrah federal building, and presaged the goals of the movement today. For a brief moment, at least, the “face” of terrorism was represented by Timothy McVeigh, who at that point was the perpetrator of the worst mass casualty event on American soil since Pearl Harbor. But as Belew also carefully documents, it was not understood how McVeigh connected up with the white power movement at the time.  

After 9/11, the popular imagination was transfixed by Osama bin Laden and his transnational network, as government resources shifted decisively toward foreign terrorism. We should question whether the intelligence failure preceding January 6 was caused, at least in part, by the fact that the people in attendance didn’t “look” like terrorists or what one counterterrorism expert referred to as the “invisible obvious” in which decision-makers and analysts failed to see the threat from people who looked liked them. (This last point also mirrors another post 9/11 issue: The intelligence gaps created by a lack of diversity in our intelligence community.)

Fortunately, we have slowly come to terms with these new threats from Moscow and from within. In the previous Congress, the Senate Select Committee on Intelligence investigated and prepared a five-volume bipartisan report on Russian active measures and 2016 election interference, and the Office of the Director of National Intelligence provided a comprehensive intelligence assessment on foreign interference in the 2020 election to the President and Congress on January 7, 2020 and to the public on March 15, 2020. On the domestic terrorism front, last June the National Security Council issued its National Strategy for Countering Domestic Terrorism, which includes many of the measures taken in the post-9/11 context, including enhancing information sharing among agencies and increasing resources to investigate, prosecute, and track domestic terrorism. Also like after 9/11, Congress has now undertaken its own investigation through its bipartisan select committee looking into the events leading up to January 6, and the Justice Department is at least vigorously pursuing the foot soldiers.

Twenty years after 9/11, we can be sure that U.S. policies, priorities, and resources will rise to meet the new challenges we face on foreign and domestic fronts. But, it is worth noting that we are once again responding from a reactionary posture to two of those major threats, suggesting that there are still lessons to be learned from the way the United States bounced back 20 years ago. For one, we need to ensure that the pendulum swing does not overcorrect, as it did with countering Islamic terrorism, to justify illegitimate and unlawful means to an end. We must also remember that as large as these current threats loom now, they won’t last forever and may even evolve or be eclipsed by others. Hopefully the next time around, we won’t miss the warnings.

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A preliminary point to underscore is that, based on the history of Soviet, Russian, and American intelligence, election interference takes one of two broad forms. The first is to affect “hearts and minds.” This involves perception management operations to shape the attitudes and opinions of voters, with the intention of encouraging them to vote for a specific candidate or to refrain from voting at all for another, while also sowing discord within the targeted democracy. This form of interference is more indirect and generally lends the foreign actor a degree of plausible deniability, and its effects on the election are more difficult to measure. The second form of election interference involves directly affecting the actual votes cast, and their tabulation. This form of interference is more direct, generally has less plausible deniability (i.e., can be easier to attribute), and, if detected, can be assessed in terms of its precise impact on the electoral outcome, even if its effect on the public’s trust in the outcome remains difficult to ascertain.

We know that, as in 2016, Russia is engaging in perception management operations this cycle. Earlier this month, for example, Facebook and Twitter took down a covert network of Russian accounts, while Microsoft announced that Russian military intelligence is working to steal (and potentially release) the emails of prominent American political figures. Russia has also been found to be the source of deceptively edited videos relating to the Black Lives Matter protest movement, geared toward polarizing the electorate on a key campaign issue. These lines of attack, which Russia has deployed before, are meant to influence the minds of U.S. voters and must be defended against vigorously.

While Russia’s perception management operations have been extensively documented by the media, the Special Counsel Report, and the Senate Select Committee on Intelligence, Russia’s ability and willingness to engage in direct vote tampering and voter suppression have been less well understood and analyzed in declassified forums. Nonetheless, the threat of such interference persists. On this front, we call attention to the U.S. intelligence community’s August 7, 2020 warning, which states that foreign countries may “seek to compromise our election infrastructure for a range of possible purposes, such as interfering with the voting process, stealing sensitive data, or calling into question the validity of the election results.” In simpler terms, Russia could attempt to manipulate not just public opinion, but the actual voter data and vote tallies of U.S. citizens.

If the past is prologue, this type of direct interference could take several forms. One option for Russia would be to try to ensure Trump’s victory. Jeh Johnson, the secretary of homeland security in 2016, recounted in Rigged that he worried Russia “could screw around with voter registration lists to a sufficient degree” to change the outcome of the election, by preventing Democrats in swing states like Florida from casting their ballots. For Johnson, this worst-case scenario consisted of “data being manipulated in a handful of key pre­cincts in Miami-Dade, in Dayton, Ohio, in a key precinct in Michi­gan, a key precinct in Wisconsin, a key precinct in Pennsylvania.”

In fact, the possibility of a Russian cyberattack captivated the Obama White House during the summer and fall of 2016, as Russian military intelligence aggressively targeted U.S. election systems. “Every single day, we were getting reports that this system had been scanned, this system had been penetrated,” Michael Daniel, then the White House cybersecurity coordinator, recounted to Shimer. On Election Day 2016, the White House and the Department of Homeland Security were running secret crisis teams, bracing for a Russian strike against America’s electoral infrastructure. “[Russia] could have done things as far as voter registration rolls; they could have done things as far as tallies,” the then CIA director John Brennan said in an interview. The White House considered it “very possible,” added Amy Pope, then the deputy homeland security advisor, that there would be “actual interference with the voting record and voting systems” on Election Day.

Yet, all available evidence indicates that Russia did not take this step four years ago. To understand why Moscow refrained from such actions requires evaluating the cost-benefit analysis taken by both the United States and Russia in the 2016 political landscape. For the United States’ part, the Obama administration, based on interviews with its most senior members, concluded that retaliating against Russia for its (partially detected) perception management operations before the election ran the risk of provoking Russia into sabotaging America’s election systems on Election Day. Rather than take that chance, President Obama worked to secure those systems and to deter Russian President Vladimir Putin. On September 5, 2016, while attending a summit in China, Obama met with Putin and warned, “You fuck with us, and we’ll take you down,” as one of Obama’s senior advisors recounted in Rigged. Lisa Monaco, the then-homeland security advisor, further explained that Obama issued this threat in response to “what we were seeing in the state systems.”

Importantly, according to then DNI James Clapper, Putin anticipated that Hillary Clinton would win the election. Escalating toward vote tampering therefore could have backfired, since a Clinton administration presumably would have hit back—hard—with cyber, economic, or diplomatic penalties. By contrast, executing perception management operations brought Putin guaranteed benefits and fewer risks. (As Asha Rangappa, along with former CIA officers John Sipher and Alex Finley, have written, engaging in a polarizing disinformation campaign would have yielded returns even if Clinton had won.) Russia had executed influence operations against the United States before and would endure some costs for its sweeping 2016 operation; directly manipulating the vote would have marked a still further jump up the ladder of escalation between the two countries.

The risk-reward evaluation for both the United States and Russia has evolved dramatically since 2016, which is why we must consider whether Russia will take steps now that it opted against four years ago. The Russian tradition of election interference is to exploit pre-existing weaknesses, and for reasons entirely domestic in nature—from the coronavirus pandemic, to Trump’s allegations of a rigged election, to his attacks against the U.S. postal service—an unprecedented degree of doubt exists inside the United States over whether the coming election will proceed fairly. In this unstable environment, Russia could strike at the heart of American democracy—its elections—by sabotaging the voting process.

With this threat landscape in mind, we anticipate three possible forms of attack—none of which are mutually exclusive—of varying risk levels that Russia could deploy against the 2020 election.

Scenario 1: Changing Actual Votes to Help Trump Win

This scenario, described earlier by Brennan and Pope, would bring about the greatest risks for Russia, as it would be the electronic equivalent of stuffing ballot boxes. Were Putin to opt for this path, his hackers would attempt to manipulate the final vote tallies or voting record in Trump’s favor.

Three caveats are in order here. First, U.S. officials have gone to great lengths to emphasize that this type of cyberattack would be “extremely difficult” to execute. To try to change the outcome of an election, Russia would need to pinpoint “key precincts in key states,” Jeh Johnson explained in Rigged, where a small margin separated the two candidates. While recognizing the sophistication of Russian active measures, such an operation would require on-the-ground intelligence (likely via human sources) as to where direct alterations were both possible and would make a difference. Additionally, the federal government has been working to help states secure their election systems, and the decentralized nature of America’s election administration—which is managed by states and localities, not DHS and the FBI—would make it near impossible for Russia to manipulate voting systems at scale.

Second, the coronavirus pandemic will drastically increase the popularity of mail-in voting compared to any previous election cycle. Paper ballots provide a built-in defense against foreign hacking: Not only would they be very difficult to manipulate, even at a district level, but they also provide a physical trail which can be audited and recounted.

Third, as with Clinton, Russia risks significant blowback in the event of a Biden win. Currently, Biden is the only presidential candidate who has gone on record warning Russia that it will face major consequences for its election interference. Specifically, Biden has stated:

If elected president, I will treat foreign interference in our election as an adversarial act that significantly affects the relationship between the United States and the interfering nation’s government. I will direct the U.S. Intelligence Community to report publicly and in a timely manner on any efforts by foreign governments that have interfered, or attempted to interfere, with U.S. elections. I will direct my administration to leverage all appropriate instruments of national power and make full use of my executive authority to impose substantial and lasting costs on state perpetrators. These costs could include financial-sector sanctions, asset freezes, cyber responses, and the exposure of corruption.

Depending on Putin’s risk tolerance, this robust warning could either give him pause, for fear of provoking a prospective Biden administration, or give him more reason to interfere in the election on Trump’s behalf, in order to further reduce Biden’s chances of winning the presidency, taking office, and then imposing costs on Russia for its ongoing perception management operations. In contrast to Biden, Trump has shown a willingness to ignore Russian malfeasance, not just with regards to election interference, but also with regards to alleged bounties on U.S. troops in Afghanistan, skirmishes with U.S. troops in Syria, and the attempted assassination of the opposition leader Alexei Navalny. Amid this unprecedented dynamic between the White House and the Kremlin, the ongoing efforts of DHS and DNI to conceal the extent of Russian election interference, and Attorney General Bill Barr’s misleading portrayal of China as the major threat actor in this space, Putin could feel even more confident that working to ensure Trump’s victory this time around would protect his own interests.

Scenario #2: Create Chaos at the Polls

Another option for Russia, which would align with its core objective of tearing down American democracy, would be to cause sufficient chaos at polling places to throw the outcome of the election into doubt and, were Trump to lose, to provide him with a basis for alleging that the contest was rigged against him.

This possibility dominated White House crisis planning four years ago. Inside the Situation Room, one frequently discussed scenario was that Russian hackers would scramble voter databases the day of the election. Americans would arrive at their polling places only to discover that their registration information was inaccurate or was missing entirely. “If that happened at scale, you could have a real problem. You would have chaos in the actual conduct of the vote,” Lisa Monaco said of this specific threat. As citizens struggled to vote, confusion would spread, as would rampant speculation about the source of this anonymous but detectable cyberattack. “What did seem very plausible,” added Avril Haines, the then-deputy national security advisor, “was that [Russia] could affect the votes of a small percentage of the population by, for example, changing the addresses of registrants to make it more challenging for them to vote and thereby undermine faith in the election process.”

This scenario would fall short of tampering with actual tallies: Rather than “stuffing ballots” electronically, it would have the effect of suppressing the vote among segments of the population, as well as creating doubt about the legitimacy of the outcome, regardless of who won. Depending on the specifics of the operation, this approach could also provide Russia with greater plausible deniability than Scenario #1. With so much controversy and litigation over the purging and integrity of voter rolls in states across the country, Russia would be better positioned to sow confusion about the true source of any discrepancies or sabotage. Further, since the purpose of this tactic would be to foment instability, Russia would have more flexibility in its execution than in Scenario #1. To generate disorder, Russia could sabotage election systems in any state, rather than only in swing states, and would need to manipulate only enough systems to cause chaos—a far lower and more achievable bar than attempting to alter the outcome of a presidential election directly.

Scenario #3: Sow Doubt During the Vote Count

The pandemic will present Russia with a new, third option: to undermine confidence in the vote count in the period between November 3 and when the results of the election are actually known. Experts say it could take days or even weeks for mail-in ballots to be recorded. In that window of time, the electorate will be on edge, wondering whether their ballots will be tallied fairly. Uncertainty has already taken hold nationwide. In one recent survey, just 31% of American voters said they felt “very confident” that mail-in ballots would be counted accurately. This unstable atmosphere—exacerbated by Trump’s months-long (and unsubstantiated) campaign against mail-in voting—will be fertile ground for Russian sabotage, in the form of perception management operations about voter fraud that feed into the president’s preferred narrative. Back in November 2016, Russian trolls spread disinformation about rigged election systems and imminent violence. A U.S. government bulletin issued earlier this month warned that this cycle, Russia “is likely to continue amplifying criticisms of vote-by-mail… to undermine public trust in the electoral process.” Come November, Russia could turbocharge this ongoing information operation, potentially in conjunction with chaos generated via Scenario #2.

This scenario presents the least risk for Russia, given that it has yet to experience meaningful costs for its influence campaign against the 2020 election and that domestic authorities (including the president and attorney general) have been promoting this destabilizing line of messaging in tandem. Attorney General Barr has asserted—without evidence—that an election that relies on mail-in voting would not be secure, while DHS Secretary Wolf and DNI Ratcliffe have apparently suppressed intelligence regarding Russian efforts to manipulate U.S. voters. These actions, in their totality, may very well signal to Putin that the current administration would welcome Scenario #3, even in the event of a Biden victory, which would still provide Moscow and the Trump White House with a nearly three-month window to sow discord and instill a sense of illegitimacy in the outcome of the election.

***

Each of these scenarios, while unprecedented in American history, has roots in the global history of election interference. Russia has shown elsewhere that it is willing to escalate its election operations as voting unfolds. In the immediate postwar period, Moscow and its collaborators purged voter databases and falsified vote counts in elections across Eastern Europe. In 2014, Russian hackers sabotaged Ukraine’s election systems, and in Montenegro in 2016, Russian intelligence plotted an election night coup d’état. This cycle, Russia could apply this aspect of its election interference playbook to the United States.

In the few weeks left between now and Election Day, it is essential that America defend against both foreign efforts to manipulate voters and foreign efforts to manipulate actual voting systems. Unfortunately, in recent months lawmakers have failed to provide states with more money for election administration, and the president has failed to impose costs on Putin or even to warn him to stand down. Still, other domestic actors—including ordinary citizens—can help to shore up our defenses. To that end, we recommend the following:

• Secretaries of state across the country should be running a public service messaging campaign about the reliability of mail-in voting. The less doubt there is about the stability of our voting process, the less opportunity Russia will have to tarnish it.
• Similarly, secretaries of state, as well as the media, should be establishing right now that Election Day 2020 may turn into an Election Week or an Election Month. Logically speaking, a higher incidence of mail-in voting (and the resulting higher turnout generally) could mean that a “winner” will not be declared on election night. If voters anticipate and understand that a delay in reporting means our election system is working—not failing or collapsing—the days following November 3 will be far more stable.
• In this same vein, voters should be made aware that the deadline for resolving electoral disputes is December 8, 2020, and that the final meeting of the electoral college—which is constitutionally obligated to cast ballots for the selection of the President and Vice President—will take place on December 14, 2020.
• Citizens should vote early and, above all, VOTE. History teaches us that in pivotal and potentially contested elections, when there is overwhelming turnout for one candidate, it becomes far more difficult for the losing side or foreigners to sow doubt about the outcome.
• Finally, and most importantly, REMAIN CALM. More likely than not, if Russia does manipulate U.S. election systems or spread disinformation about rigged polling places, its objective will be to generate panic, fear, and instability. If voters resist alarm for fact-based analysis, and if our leaders act in an exemplary fashion, Russian attempts to sabotage our democratic processes will prove much less effective.

Our country’s elections have been targeted before: The Soviet Union interfered in the 1960, 1968, 1976, and 1984 elections, and Russia interfered in the 2016 election. Nevertheless, American democracy has persisted. This will remain the case in 2020 and thereafter, so long as we, as citizens, work to defend our democratic system, arm ourselves with facts, and prepare for the potential turbulence ahead.

Photo: Mikhail Svetlov/Getty Images

The post Prepare for the Worst and Fight for the Best: A Citizen’s Guide to 2020 Electoral Interference appeared first on Just Security.

Wrong. That is exactly what some are attempting to do in the home stretch of the 2020 election. Specifically, Senator Ron Johnson has been laying the groundwork to undertake Ukrainegate 2.0: An attempt to accomplish through a congressional hearing what President Donald Trump was unable to achieve through his quid pro quo to Ukrainian President Volodymyr Zelensky, namely, to put Vice President Joe Biden and his son, Hunter Biden, under a cloud of suspicion before the country votes this November. And rather than wait for any report voted out by his committee, Johnson has taken to penning an open letter and tweeting out insinuations.

But Ukrainegate 2.0, like the original, has a dual purpose. The goal isn’t just to smear Biden, but also to shift blame for 2016 election interference to Ukraine. An architect of that false narrative about Ukraine is Paul Manafort, and the probe has accordingly served the former Trump campaign chairman’s interests along numerous fronts in Ukraine politics and at home. With regard to his personal interests, Manafort is currently serving a 7 1/2-year federal sentence for bank fraud, tax fraud, money laundering, acting as an unregistered foreign agent, false statements, and witness tampering. Manafort has attempted to use the Ukraine’s “election interference” conspiracy to discredit the evidence that led to his own prosecution.

What’s not received sufficient attention is how Johnson’s efforts have worked in tandem with Manafort’s – as Johnson’s probe looks to discredit the same Ukrainian officials responsible for working with American investigators in bringing charges against Manafort. Undermining Manafort’s prosecution offers a basis for President Trump to tie up the last loose end from the charges brought by Special Counsel Robert Mueller’s investigation into Russian collusion with the Trump campaign and finally give the pardon he had dangled to Manafort over a year and a half ago.

To understand how these two parallel efforts are linked, we need to rewind the tape a few years to when the Ukraine conspiracy began and also look at the common denominator in this combined effort, Trump’s personal lawyer, Rudy Giuliani.

The Origins of the Ukraine Conspiracy

Manafort began floating the false theory during the 2016 campaign that Ukraine, not Russia, was responsible for the hack of the DNC server, according to interviews conducted by Mueller’s team with Rick Gates, Trump’s former deputy campaign chairman. (The US intelligence community unanimously attributed the hack to Russia, and Special Counsel Mueller later indicted 12 GRU Russian military officers for the hack.) In the ensuing months, Manafort and his close collaborator Konstantin Kilimnik – a Russian intelligence officer – actively engaged in secretive efforts to promote the idea that Ukraine interfered in the election not only with respect to the server; their narrative also included the idea that Ukraine officials targeted Manafort in the final stretch of the campaign using false documents. “Manafort embraced and promoted the narrative of Ukraine’s alleged involvement in the 2016 elections,” the recently released bipartisan Senate Intelligence Committee report explains. “Kilimnik almost certainly helped arrange some of the first public messaging that Ukraine had interfered in the U.S. election,” which included fostering stories in the media.

Key to understanding the “interference” aspect of the conspiracy theory as it relates to Manafort is the release of a document in August 2016, known as the “black ledger,” by an independent Ukrainian anti-corruption agency, the National Anti-Corruption Bureau, and publicized by a Ukrainian parliamentarian, Serhiy Leshchenko. The ledger appeared to detail $12.7 million in undisclosed payments from Yanukovych’s Russia-aligned political party, the Party of Regions, to Manafort. The Anti-Corruption Bureau had, a month and a half prior, signed an evidence-sharing agreement with the FBI. For his part, Manafort denied receiving the payments and questioned the authenticity of the ledger, though he stepped down from the Trump campaign following public reporting of these payments. This was part of the disinformation campaign described, at length, in the Senate Intelligence Committee’s report. “Manafort and Kilimnik both sought to promote the narrative that Ukraine, not Russia, had interfered in the 2016 U.S. election and that the ‘ledger’ naming payments to Manafort was fake,” the report states.

A Media Report: What Was and Wasn’t In It

The Ukraine interference theory gained traction in right-wing circles especially after reporter Ken Vogel published a piece in 2017 fleshing out some aspects of the narrative in an article titled, “Ukrainian Efforts to Sabotage Trump Backfire.” Central to this circuitous article — which has become key to Senator Johnson’s current probe — was a consultant to the DNC, Alexandra Chalupa, a Ukrainian-American lawyer, who since 2014 had been investigating Manafort’s ties to former Ukrainian president Yanukovych and pro-Russian oligarchs. One of the article’s most explosive allegations came from Andrii Telizhenko, who worked as a diplomatic aide at the Ukrainian embassy in Washington, DC. He told Vogel, among other things, that Ukrainian embassy officials “were coordinating an investigation with the Hillary team on Paul Manafort with Alexandra Chalupa.” This was also an aspect of the story that Vogel highlighted on social media:

We have detailed the central role that Telizhenko plays as a conduit for Russian disinformation and in Johnson’s probe in our previous article for Just Security. Since the publication of our piece, the Senate Intelligence report has also identified Telizhenko as part of the effort to spread disinformation through the media that Ukrainian officials framed Manafort. (At the time of Vogel’s story, there was no public record of Telizhenko’s connections to Russian disinformation.)

Specifically on the black ledger, Vogel’s article includes interviews with Manafort and Valentyn Nalyvaichenko, who served as Poroshenko’s head of security but had since become affiliated with a leading opponent of Poroshenko. In their comments, Manafort and Nalyvaichenko cast doubt on the authenticity of the ledger. (For additional information on Nalyvaichenko’s more recent activities, see the Kyiv Post’s “3 Ukrainian lawmakers doing Trump’s dirty work in scandal.”)

The Vogel article was careful to disclaim proof of a centralized effort involving President Poroshenko and never touched on the issue of the hack of the DNC server, but that did not stop right-wing circles and some Republican Senators from invoking the article to support wider claims not actually found in Vogel’s piece. It was widely cited as the GOP’s “evidence” of Ukrainian election interference during Trump’s impeachment hearings two years later. (Some of those same commentators have also disregarded or downplayed Vogel’s other reporting. He was, for example, the first reporter to identify Kilimnik and the operative’s connections to Manafort and Russian intelligence, and he has reported on other elements such as Telizhenko’s months-long work with Johnson’s staff.)

The Causal Logic of the Ukraine Conspiracy

The causal logic that Ukraine “interfered” in the 2016 election, as spun up by Manafort, Kilimnik and Telizhenko, appears to be that Chalupa, with ties to the “Hillary team”/DNC, worked with Ukrainian officials to smear Manafort. The Ukrainian side, the logic goes, engineered the production of the black ledger, which effectively framed Manafort, forced him to resign from the Trump campaign, and ultimately led to the FBI investigation into his activities and ultimate prosecution and conviction. Or, as the-White House Press Secretary Sarah Sanders summed it up in 2017, “If you’re looking for an example of a campaign coordinating with a foreign country or a foreign source, look no further than the DNC, who actually coordinated opposition research with the Ukrainian Embassy.”

Except that’s not what happened. For starters, U.S. law enforcement agents have been conducting an investigation into the financial dealings of Manafort since 2014, and, in January 2016, the FBI initiated a money laundering and tax evasion investigation of Manafort based on his work with Ukraine political groups. That was well before Manafort joined the Trump campaign or the known existence of the black ledger. Second, FBI Director Christopher Wray’s said in December, “We have no information that would indicate that Ukraine tried to interfere in the 2016 presidential election.” Likewise, in discussing Manafort and Kilimnik’s disinformation campaign, the Senate intelligence committee’s report states that “during the course of the investigation, the Committee identified no reliable evidence that the Ukrainian government interfered in the 2016 U.S. election.”

What’s more, the essential veracity of the black ledger has held up over time. As Robert Mackey explained:

Bank records described in an FBI search warrant, and reviewed by the Associated Press, confirmed that at least $1.2 million in payments listed in the records next to Manafort’s name were actually deposited in one of his firm’s bank accounts in Virginia….
Andrew Kramer, the New York Times foreign correspondent who first revealed the secret payments to Manafort, also reported at the time that others in Ukraine who were named in the ledger had confirmed that the records were genuine.

As a BBC fact check on the ledger explained, “More than three years since it emerged, no one has managed to cast serious doubt on its contents.” The Washington Post’s fact checker Glenn Kessler noted, “While some Republicans have suggested that the ledger was fake, Manafort’s defense lawyers did not make that argument.”

Simply put, Manafort was not framed. He was convicted of 8 felonies by a jury and pleaded guilty to money laundering and acting as a foreign agent for Ukraine to avoid a second trial (and likely to avoid detailed evidence of his Ukraine activities from being aired publicly in court).

Enter Rudy Giuliani

Not one to let facts get in the way of a good conspiracy theory, Trump’s personal lawyer, Rudy Giuliani, picked up the torch on the Ukraine election interference idea after he came on board in 2018. Over months Giuliani “consulted several times with Manafort through the federal prisoner’s lawyer” in an effort to find any information that he could use to say the black ledger was a forgery cooked up by officials in Ukraine. Giuliani has hoped that by discrediting the authenticity of the black ledger, he could show that the investigation against Manafort was a pretext and discredit the Russia investigation more generally.

Giuliani, for example, declared on CNN that the ledger is “a completely fraudulent document that was produced, in order to begin the investigation of Manafort.” He added that people in the Ukraine who knew about this plot “were trying to get to us but they were being blocked by the Ambassador [Marie Yovanovitch] who was Obama-appointee, in Ukraine, who was holding back this information.”

To understand why Giuliani may care specifically about Manafort, or has ongoing communication with his lawyer, it helps to remember the findings of the Mueller investigation. Specifically, Manafort originally agreed to cooperate with Mueller’s team in their investigation. Part way through that agreement, Mueller’s team discovered that Manafort was not being truthful, and was continuing to share information about the Mueller investigation with Trump’s personal lawyers. Giuliani defended the arrangement between Trump’s and Manafort’s attorneys when it surfaced publicly. Mueller also uncovered evidence that Trump had floated the possibility of a pardon to Manafort, as an incentive for him not to cooperate with Mueller’s team. The Mueller report also describes several instances in which Giuliani personally used media interviews apparently to dangle the pardon for Manafort. Mueller terminated the cooperation agreement with Manafort, and along with it, any possibility of a plea deal or reduced sentence.

The Senate Intelligence Committee’s counterintelligence report also underscores how much information Manafort may have with regard to Russia’s activities in 2016, and which we still do not know. As stated in the report:

Prior to joining the Trump Campaign in March 2016 and continuing throughout his time on the Campaign, Manafort directly and indirectly communicated with Kilimnik, Deripaska, and the pro-Russian oligarchs in Ukraine. On numerous occasions, Manafort sought to secretly share internal Campaign information with Kilimnik. The Committee was unable to reliably determine why Manafort shared sensitive internal polling data or Campaign strategy with Kilimnik or with whom Kilimnik further shared that information. The Committee had limited insight into Kilimnik’s communications with Manafort and into Kilimnik’s communications with other individuals connected to Russian influence operations, all of whom used communications security practices. The Committee obtained some information suggesting Kilimnik may have been connected to the GRU’s hack and leak operation targeting the 2016 U.S. election.

A member of the committee, Sen. Ron Wyden (D-OR), noted that the unredacted version of the report includes “indications of Manafort’s own connections to [the hack and leak] operations.”

In sum, Manafort may hold the keys to the kingdom, not only in terms of shedding light on Russia’s activities in 2016, but also how much coordination or assistance they received from members of the Trump campaign.

The upshot here is that Manafort could have spilled the beans to Mueller, but didn’t — presumably gambling that he could get off scot-free, via a presidential pardon, if he kept his mouth shut. NBC’s Howard Fineman reported in 2018, that Trump “decided that a key witness in the Russia probe, Paul Manafort, isn’t going to ‘flip’ and sell him out, friends and aides say” – a further indication that Manafort has derogatory information about Trump and the president knows it. Manafort’s leverage, of course, likely includes whatever information he never revealed to Mueller’s team: He could still say what he knows. Simply put, it has been in Trump’s interest to keep Manafort happy, which involved laying the groundwork for a pardon. But until now, at least, Trump seems to have assessed that an outright pardon could be too costly. He’s needed a politically expedient reason, and a “cooked up investigation” of Manafort would provide the right grounds.

Which brings us to the July 25 phone call between Trump and Zelensky. A review of the summary of the call shows that the quid pro quo offered by Trump has as much to do with asking Zelensky to help substantiate the idea that Ukraine was responsible for interfering in the 2016 election as with investigating the Bidens. Trump references Ambassador Yovanovitch, and “the people she was dealing with in Ukraine” as “bad news;” he adds, “she’s going to go through some things. I will have Mr. Giuliani give you a call.” Trump also mentions “[t]he other thing,” in which he elaborates on the Bidens. Zelensky notes that one of his assistants has already spoken with Giuliani and that he looks forward to meeting with Giuliani when he comes to Ukraine.

In short, Giuliani’s mission to discredit Ukrainian officials involved with Manafort’s investigation preceded the July 25 phone call, and the Biden “ask” was added to that effort. As we have previously written, Giuliani also appears to be one of the main channels funneling disinformation about Ukraine into Sen. Johnson’s committee.

But there’s an important element in the timeline that should not be missed. While some have said that Johnson’s investigation “began last year as counterprogramming to the House impeachment process,” that can’t explain the senator’s original motivation. Johnson’s efforts actually began before impeachment and even before Trump’s phone call with Ukraine’s president. The timing indicates that Johnson’s probe, like Guiliani’s efforts, were also undertaken initially to advance the Ukraine conspiracy theory, and thereby discredit Manafort’s prosecution and the Special Counsel investigation more generally.

In fact, around early July 2019, the senator was already exercising poor judgment meeting personally with Telizhenko; and Johnson’s staff spent over 5 hours with the Ukrainian operative to discuss the “‘the DNC issue’ — a reference to his unsubstantiated claim that the Democratic National Committee worked with the Ukrainian government in 2016 to gather incriminating information about Paul Manafort,” the Washington Post reported. Johnson’s meeting followed Giuliani’s interviewing Telizhenko for several hours in May. according to Telizhenko, “Giuliani said that he was representing Trump, that he was the president’s personal lawyer, and that he was working on proving that the DNC had colluded with Ukraine in 2016.”

On May 23, 2019, Sen. Johnson attended a meeting in the Oval Office as part of a small delegation of senior officials who returned from a trip to Ukraine. President Trump directed the group going forward to work with Giuliani on Ukraine, Ambassador Gordon Sondland told Congress. In an interview in Oct. 2019, Johnson responded that he had “no recollection of the president mentioning Rudy Giuliani” at the May meeting. In November, the House Intelligence Committee released the depositions from Ambassador Bill Taylor, who corroborated Sondland’s testimony, and from Ambassador Kurt Volker who said he interpreted the President “not as an instruction but just as a comment, talk to Rudy.” Tim Morrison would later testify along the same lines as Volker. Somehow Johnson was the only one who failed to recall the president’s making any statement about their working or speaking with Giuliani.

* * *

The promotion of the Ukraine-interference conspiracy theory has served multiple objectives over time, including the personal interests of Manafort. It’s unclear if Manafort still seeks a pardon as desperately. In May, Bill Barr’s Justice Department released Manafort to serve the rest of his sentence in home confinement, notably despite Manafort’s failure to qualify for the categories prioritized for release under DOJ coronavirus guidelines. Manafort has about five years left in his sentence. “We don’t have any experience with anyone serving this much time in home confinement,” Kevin Ring, president of Families Against Mandatory Minimums, told Bloomberg News. “Compared to prison it’s so much better, but you are being monitored and you can’t screw up.”

The post Manafort’s Reward: Sen. Ron Johnson and the Ukraine Conspiracy Investigation: Part II appeared first on Just Security.

Senator Ron Johnson’s investigations involving Ukraine have become a conduit of Russian disinformation.

Earlier this month, Johnson defended himself on a local Wisconsin news station saying, “What have I published, what have I reported on, that is not true, that is any form of Russian disinformation? There has been nothing.” Similarly, in his 11-page letter, Johnson asserted, “It is neither me, Chairman Grassley, nor our committees that are being used to disseminate Russian disinformation.”

The senator surely knows better, and his 11-page defense of his actions reveals it. Published on Monday, Aug. 10, the letter itself contains apparent products of Russian disinformation. And while Johnson denies taking information directly from two specific Ukrainians linked to Russia and its disinformation efforts, he makes no mention of his staff taking information directly from one of those individuals’ principal collaborators, which  reportedly occurred over the course of several months.

Fellow Republican Senators — including the previous and current Chairs of the Senate Intelligence Committee Sens. Richard Burr and Marco Rubio — have warned Senators Johnson and Chuck Grassley that their Ukraine investigations could aid the Kremlin. Johnson and Grassley appear committed to going further down that path regardless, taking some of their Republican colleagues down with him.

We provide a roadmap for understanding this disinformation operation currently in progress, using U.S. elected officials as a vehicle.

Key Players in the Russian Disinformation Campaign

1. Senator Ron Johnson, Republican of Wisconsin, Chair of Senate Homeland Security & Governmental Affairs Committee

2. Senator Chuck Grassley, Republican of Iowa, Chair of Senate Committee on Finance

3. Senator Richard Burr, Republican of North Carolina, Chair of Senate Intelligence Committee (Jan. 2015 – May 2020)

4. Senator Marco Rubio, Republican of Florida, Chair of Senate Intelligence Committee (May 2020-present)

5. Rudy Guiliani, Donald Trump’s personal attorney

6. Andrii Derkach, a pro-Russian Ukrainian lawmaker, identified by U.S. intelligence as running a disinformation campaign in conjunction with the Kremlin to damage Biden’s candidacy in support of Trump in the 2020 election

7. Andrii Telizhenko, former Ukrainian diplomatic aide; reportedly identified by the FBI as a conduit for Russian disinformation to damage Biden in the 2020 election

8. Oleksandr Onyshchenko, former pro-Russian lawmaker, spreading disinformation about Biden in 2020 election

9. Ken Vogel, journalist, previously at Politico, now at New York Times

10. John Solomon, journalist/commentator, previously at The Hill

Russia’s many paths to Sen. Johnson

There are three channels of Russian disinformation that have apparently affected Sen. Johnson’s Ukraine-related investigations.

Channel 1. Russian-linked Ukrainian operatives communicating directly with Sen. Johnson and his staff.

Channel 2. Russian-linked Ukrainian operatives spreading disinformation via media outlets, which have been picked up and expressly relied upon by Sen. Johnson.

Channel 3. Russian-linked Ukrainian operatives providing information via “Team [Rudy] Giuliani.”

In this piece, we will discuss the first two channels together because of how they relate to Johnson’s 11-page denial.

Before doing so, let’s fairly quickly dispatch with the two Ukraine-related conspiracy theories that Sen. Johnson is “investigating.” These are both conspiracies that have reportedly been advanced as part of the Kremlin’s disinformation campaign via Russia-linked Ukrainian operatives.

Debunked Conspiracy Theories Involving Ukraine

1. The Ukraine Election Interference Theory

Johnson’s investigations include a conspiracy theory that Ukraine was involved in election interference in 2016 to defeat Trump, an idea that emanates in large part from an article by Kenneth Vogel in Politico in January 2017. The main thrust of the somewhat circuitous article is that Ukrainian officials were working with the DNC to promote Hillary Clinton.* This bold claim appears to be almost entirely sourced by one person: Andrii Telizhenko. (More on him, below)

Since its publication over three years ago, Vogel’s account has been debunked by several outlets, including fact checks by the Associated Press, BBC, Washington Post (here, here, here), and the New York Times (where Vogel is now a reporter). Even Politico has backtracked on Vogel’s reporting, as others have observed. Nearly two years after his article appeared, Politico reported, “No evidence has emerged to support that idea.”**

In addition, during the impeachment hearings, current and former senior US officials debunked the conspiracy theory involving Ukraine and the 2016 election, under oath. That includes the State Department’s top Ukraine expert George Kent (“no factual basis”), Fiona Hill (“a fiction”), Lt. Col. Alexander Vindman (“I am, frankly, unaware of any authoritative basis for Ukrainian interference in 2016 elections”), Ambassador Marie Yovanovitch (“those elements that you’ve recited don’t seem to me to be the … kind of a plan or a plot of the Ukrainian government to work against President Trump”), and David Hale (in Senate hearings in Dec. 2019 saying he is not aware of any evidence that Ukraine interfered in the 2016 election).

2. The Biden-Burisma Conspiracy

A second conspiracy theory under investigation by Johnson’s Committee involves allegations that Vice President Biden helped sack a Ukraine prosecutor, Viktor Shokin, to benefit Burisma, a firm associated with Biden’s son. Shokin was fired at the request of then-Vice President Biden, who did so with the knowledge and backing of President Obama, members of the U.S. Congress (including Sen. Ron Johnson), and the European Union, all of whom had deemed Shokin too corrupt to promote rule of law reforms that were a condition of U.S. aid. Indeed, the US team explicitly pressured the prosecutor’s office because it had blocked UK and Ukrainian investigations of Burisma.

The claim that the policy stance taken by Biden against Shokin was to benefit Biden’s son is without merit. This claim has been widely debunked by independent fact checkers including PolitiFact, FactCheck, Axios, and several others. During the impeachment hearings, current and former senior U.S. officials also directly debunked the conspiracy theory, including Kent and the Republicans’ witness Ambassador Kurt Volker.

Channels 1 and 2: Russian Disinformation and Johnson’s 11-Page Defense

But let’s focus on Vogel’s Jan. 17 report as a primary example of the first two channels of Russian disinformation. Specifically, let’s focus on Vogel’s primary source for his reporting, Andrii Telizhenko. Who is he?

Telizhenko is a Ukrainian national and former political officer in the Ukrainian Embassy in DC. He has since founded a political consulting firm based in Canada.

In March 2020, the FBI specifically alerted Sen. Johnson and his committee about the counterintelligence threat posed by Telizhenko. According to the New York Times and Politico, the FBI “warned lawmakers in a briefing that it had concerns that Mr. Telizhenko was a conduit for Russian disinformation about the Bidens and claims that Ukraine conspired to help Democrats in the 2016 election,” the Times wrote.

This means that the main “evidence” upon which Johnson relies in making his case — Vogel’s 2017 article — is itself a potential product of disinformation. One would think these warnings would have deterred Johnson, who had to be “pressured” by Republican and Democratic Senators to drop a scheduled vote to subpoena Telizhenko. This was not Johnson’s first warning, as we note in the postscript to this article.

What’s remarkable about Johnson’s Aug. 10 letter is, instead, its explicit reliance — twice in the document– on Vogel’s January 2017 Politico article followed by Johnson’s statement: “What I have provided above is an accurate history … None of it is Russian disinformation.” Casual followers of Johnson may wonder whether he is oblivious or disingenuous as to how he is amplifying Russian disinformation by continuing to champion Vogel’s article.

But there’s reason to believe the senator is not unwitting. In fact, it appears that Telizhenko himself is now one of Johnson’s sources.

After first taking interest in the Politico article which quotes Telizhenko at length, Sen. Johnson personally met with Telizhenko as captured in a photograph that Telizhenko posted on social media in July 2019. Johnson’s staff then met with the Ukrainian for over five hours, according to Telizhenko. An individual close to Johnson confirmed the meeting with committee staff. Telizhenko told Politico that he continued to remain in contact with the committee’s investigators and sent them documents well into 2020. The New York Times also reported that “staff members for the committee have been working with Mr. Telizhenko for months, interviewing him and collecting documents to bolster two separate investigations into subjects that could help President Trump as he heads into a re-election campaign in which Mr. Biden has emerged as his leading Democratic challenger.”

In other letters signed by Johnson, he has not only referred to Vogel’s report but also referred to Telizhenko by name while recounting, at great length, specific allegations the Ukrainian operative made in Vogel’s report. In Sept. 2019, Johnson sent a letter to Attorney General Barr referring to Telizhenko by name three times. In Nov. 2019, Johnson sent a letter to the National Archives which referred to Telizhenko by name four times. In the 11-page letter in defense of his actions, Johnson refers only to Vogel’s report, but Telizhenko’s name is conspicuously absent.

In sum, both Channel 1 and 2 have been in operation, and Johnson must surely be aware of that now. If he isn’t, he may be even more of a threat to his Republican colleagues and to the national security interests of the United States.

In addition to his series of letters relying on Telizhenko and the near miss of the proposed subpoena of the Telizhenko, Johnson has repeated Kremlin talking points in his television appearances. During the impeachment hearings, the senator said President Trump’s concerns were valid. “There’s all kinds of smoke about Hillary Clinton’s campaign, the DNC being involved in the 2016 election,” he told Fox News’ host Mark Levin on Oct. 21, 2019. On Meet the Press that same month, Johnson said Trump had “very legitimate concerns” about Ukraine interference in the 2016 election and went on to describe “pretty good investigative reporting” by Ken Vogel and The Hill’s John Solomon.

(Sens. Johnsons and Grassley have referred to Solomon’s articles alongside Vogel’s Politico report in their letters to Attorney General Barr and to the National Archive, including one with Solomon’s interview of Telizhenko and other Russian-linked Ukrainian operatives. Solomon’s reporting has been widely discredited, and has resulted in editors’ notes retroactively affixed to several of his articles in The Hill.)

In his letter this week, Sen. Johnson wrote that Vogel’s “article was largely ignored by the mainstream media.” That’s also false. The media focused intensely on Vogel’s allegations, fact checked them, and found them false. Sen. Johnson knows this too. In his Meet the Press interview, he came to Vogel’s defense saying the journalist has been “pilloried” for the article.

What’s astonishing is that Johnson is not ashamed to rely on the Vogel article at this point in time. “The Politico article was published nearly two years ago, and it’s revealing that Johnson still is quoting from it,” the Washington Post’s highly-respected fact checker Glenn Kessler observed at one point in this saga. Telizhenko “has never released any documents or other proof of his allegations,” NBC News observed in Dec. 2019. It’s now over three years since Vogel’s article, and the FBI has warned the senator had his staff that a major source of the article is a conduit for Russian disinformation. Yet, Sen. Johnson saw fit to rely on the article in his letter this week.

Channel 3: Giuliani and the Senators

According to in-depth reports Telizhenko, along with two Russian-linked operatives, Oleksandr Onyshchenko and Andrii Derkach — have been working as “collaborators” in conjunction with Rudy Giuliani. Collectively, they comprise, “Team Giuliani,” Onyshchenko said in an interview. Onyshchenko and Derkach each said in interviews that they provided information to Sen. Johnson’s committee, but Johnson denies it. But this specific denial is something of a ruse.

In a world of cutouts and intermediaries, it is beside the point whether Derkach and Onyshchenko provided the information directly to Johnson, or one of the other principals in their group—Telizhenko, who has reportedly been working with Johnson’s staff for months—did so.

This is especially damning given that Derkach has been identified by William R. Evanina the Director of the United States National Counterintelligence and Security Center, as part of the Kremlin’s interference campaign in the 2020 election. “Pro-Russia Ukrainian parliamentarian Andriy Derkach is spreading claims about corruption – including through publicizing leaked phone calls – to undermine former Vice President Biden’s candidacy and the Democratic Party,” the director said in a statement issued on Friday describing Russia’s operations.

Team Giuliani has been active for months. Most incriminating, Giuliani has said that Derkach has been “very helpful” and the president’s attorney admitted they have talked many times about Ukraine. A main topic for their meeting in Kyiv in Dec. 5, 2019 was the creation of an “interparliamentary” group against corruption, Derkach said on Facebook. What exactly does that mean? The U.S. counterpart to the interparliamentary group includes Republican Senators Johnson and Grassley according to Derkach, who told Politico he sent anti-Biden materials to them and other lawmakers as part of the initiative he discussed with Giuliani.

Upon returning from his December trip to Kyiv, Giuliani told the Wall Street Journal that “Trump instructed him to brief the attorney general and Republican lawmakers” and that “he has been in contact with several Republican lawmakers.” The Journal added, “Moments later, Mr. Trump told reporters at the White House that his lawyer would deliver a report to the Justice Department and Congress.”

“Rudy Giuliani is acting as a conduit for a group of Ukrainians with ties to Russia who appear to be trying to feed questionable information to Johnson,” the Washington Post’s Greg Sargent and Paul Waldman recently wrote.

The Wall Street Journal also reported that Giuliani had “dispatched” Telizhenko in advance of his December trip “to gather information from politicians there and ask them to participate in [a] documentary series” about the Ukraine conspiracies. Telizhenko told NBC News that he traveled with Giuliani in Kyiv to help produce the documentary. Derkach participated in the documentary in an interview with Giuliani, which was produced by One American News Network.

At this point, the question of what to believe from the senator about taking information from the Ukrainian operatives is itself open for discussion. The Monday letter is part of ever-shifting, false denials, elusive and contradictory statements by Johnson and his staff that deserves its own analysis.

Post Script: Prior Warnings about Russian disinformation on Ukraine 

Finally, we want to end by saying a bit more about Sen. Johnson’s having been warned before and not heeding those warnings.

It did not require specific warnings in March 2020 about Telizhenko to have waived Johnson and other senators away from the conspiracies involving Ukraine.

In late October or November 2019, the FBI reportedly warned senators that the conspiracy alleging Ukraine interference in the 2016 election was part of a years-long campaign by the Kremlin. As for the Russian channels of spreading disinformation, the FBI reportedly explained that “Russian intelligence officers conveyed the information to prominent Russians and Ukrainians who then used a range of intermediaries, like oligarchs, businessmen and their associates, to pass the material to American political figures and even some journalists,” the New York Times reported.

On Nov. 21, 2019, in a powerful moment during the impeachment hearings, former senior White House official Fiona Hill directly explained how members of Congress’ perpetuating these narratives in defense of Trump enabled the Kremlin’s disinformation operations. On the conspiracy that Ukraine interfered in the 2016 election, Hill said, “This is a fictional narrative that is being perpetrated and propagated by the Russian security services themselves.” “I would ask that you please not promote politically derivative falsehoods that so clearly advance Russian interests … we need to be very careful as we discuss all of these issues not to give them more fodder that they can use against us in 2020,” she stated in her prepared remarks.

It was in a Dec. 5, 2019 meeting that then-Senate Intelligence Committee Chairman Richard Burr privately told Johnson and Grassley that their investigation targeting Biden could aid Russian efforts.

Other experts on the Kremlin’s disinformation agree. “It’s in Russia’s interest to amplify this issue because it wants Ukraine to be undermined,” Nina Jankowicz, a disinformation expert at the nonpartisan Wilson Center, told the Associated Press earlier this year.

Part of the Kremlin’s effort is to drive a wedge between Ukraine and the United States, part is to sow political discord inside the United States, and another part is, as now confirmed publicly by the US intelligence community, to support Trump’s re-election bid. Johnson has enabled all three.

– – – – – – – – – – – – –

* Added on Sept. 8, 2020: This point deserves unpacking. In 2019, PolitiFact assessed, “The [Vogel] story does not say the DNC authorized Chalupa’s research or worked directly with either Ukraine’s government or the Clinton campaign. Our reporting has come to a similar conclusion.” And Politico’s Melissa Cooke defended the story telling PolitiFact, “The article did not state that the Ukrainian government conspired with the Clinton campaign or the DNC.” (For other statements by Politico’s staff in defense of the story, see here.) However, as we explain in Part 2, the story includes Telizhenko’s explosive statement that Ukrainian embassy officials “were coordinating an investigation with the Hillary team on Paul Manafort with Alexandra Chalupa.” On Jan.11, 2017, the day the story broke, Vogel tweeted, with a link to the story, “There’s NO PROOF Russia worked w Trump to hurt Clinton. There IS PROOF Ukraine worked w Clinton team to hurt Trump,” and also tweeted, “SCOOP: Ukrainian officials worked w/ DNC aide (below w/ Ukraine ambassador+Hillary confidant Verveer) on Trump oppo,” referring to an attached photograph. The story also reported, among other things, that Chalupa “with the DNC’s encouragement” asked Ukraine embassy staff to arrange an interview with President Poroshenko to discuss Manafort. The story included that claim to contrast with a former DNC staffer’s claiming, “We were not directing or driving her work on this.” See also the Washington Post’s analysis (“As a staff writer at Politico in early 2017, [Vogel] co-authored another piece that suggested that the Democratic National Committee had cooperated with Ukrainian efforts to thwart Republican candidate Donald Trump in the 2016 campaign.”).

All that said, as we note in part 2, Vogel also has a body of some of the most important journalism including breaking valuable stories on Russia-linked Ukrainian operatives and their work in the United States.

** Some of these fact checks are complicated because they not only address Vogel’s original story in Politico but also address right-wing commentators and some Republican politicians who have invoked the story to support wider claims not actually found in Vogel’s piece. That said, with respect to the Politico story, the fact checks dispute whether Ukraine officials interfered in the elections or may have tried to “sabotage” the Trump campaign by targeting Manafort with derogatory information (such as through a potentially fake ledger of undisclosed payments to Manafort from a pro-Russia party) [Associated Press; BBC; Washington Post, Oct. 8. 2019]; dispute the description of the involvement of the Ukrainian embassy or concerted Ukrainian actions (while acknowledging public commentaries such as Ukraine’s ambassador’s writing an op-ed) [BBC; Washington Post, Nov. 16, 2019; Washington Post, Dec. 3, 2019]; dispute relationships including exchanges of information between the Clinton campaign and Chalupa [Washington Post, Oct. 8. 2019; see also CNN]; dispute the framing of the story with respect to the DNC or other connections to the DNC [Washington Post, Oct. 8. 2019; Washington Post, Nov. 16, 2019].

Images: Rudy Giuliani and Andrii Derkach, in Kyiv, Ukraine Dec. 5, 2019 posted on Facebook (left); Andrii Telizhenko and Sen. Ron Johnson posted on Facebook, July 11, 2019 (center); Rudy Guiliani and Andrii Telizhenko posted on Facebook, July 18, 2020 (right)

The post How Sen. Ron Johnson’s Investigation Became an Enabler of Russian Disinformation: Part I appeared first on Just Security.

Attorney General William Barr has a lot to answer for.  Roger Stone.  Michael Flynn.  Geoffrey Berman.  Robert Mueller.  The names alone are enough to spark recollection of how Barr has raised profound concerns about his performance at the helm of the Justice Department.  Now he has a chance to explain himself.

With the shocking and still unexplained removal of Geoffrey Berman from serving as head of the U.S. Attorney’s Office for the Southern District of New York, the House Judiciary Committee Chairman said he’s inviting Barr to testify at a hearing on Wednesday addressing the state of affairs at the Justice Department.  We’re not naïve. We doubt Barr will show up.  But it’s important nonetheless to understand just how much he has to answer for, whether it’s on Wednesday or on other occasions—and whether it’s before congressional representatives or journalists. It’s also important to specify what questions should be asked.

Barr has become ever more central to Donald Trump’s presidency. He has reportedly or by his own admission become directly involved in six major investigative and prosecutorial matters that coincide with the President’s personal interests: 1) the Special Counsel investigation into Russia’s 2016 election interference; 2) the whistleblower complaint outlining Trump’s actions with Ukraine; 3) the investigation into the investigators of the 2016 election; 4) the prosecutions resulting from Mueller’s investigation, including Michael Flynn and Roger Stone; 5) the indictment of a Turkish bank in alignment with Trump’s personal and financial interests; and 6) Berman’s abrupt departure. And these prosecutorial matters don’t cover his questionable conduct concerning areas that are arguably not even in his jurisdiction, like his advocacy of the drug hydroxychloroquine as a cure for COVID-19, or bringing in armed and unidentified federal agents, against the wishes of the D.C. mayor, during the recent Black Lives Matter protests in D.C.

Here are a few—well, maybe more than a few—questions for members of Congress and the media to ask him.  This is our third iteration of this list.  Few, if any, of the questions previously on the list have been satisfactorily answered by Barr—while additional ones have arisen.

At the very heart of the concerns about the current Attorney General is his apparent failure as the nation’s top law enforcement officer to apply the law equally to all Americans. His most sacred duties include avoiding dispensing justice disproportionately for the President’s political friends and imposing scrutiny disproportionately to the President’s perceived political adversaries. Many of our questions go to this core concern—the equal application of the law—by asking Barr whether the treatment he gave to Roger Stone, Michael Flynn, Paul Manafort, and others is unusual, and whether he can even name other cases in which he made similar interventions on behalf of any American, let alone Trump’s perceived adversaries. The answer to those and other questions will reveal the degree to which Barr has damaged the Department by the appearance and reality of political interference.

A. Geoffrey Berman’s Departure

1. Do you hereby testify—under penalty of perjury—that your June 19 statement that Mr. Berman had resigned was true when you issued it?

2. On what basis did you seek Mr. Berman’s resignation, especially when he clearly continued to have the trust of the Trump administration given the senior leadership roles at the Justice Department he’d been offered at the time?

3. With whom in the White House or Justice Department did you discuss the decision to seek to oust Mr. Berman before you met with him on Friday, June 19?

4. On what legal grounds did you initially announce that you could and would install the U.S. Attorney for the District of New Jersey as Mr. Berman’s successor? Did you consult the Justice Department’s Office of Legal Counsel, and regardless how did you reconcile your approach with the OLC opinion by (now Justice) Samuel Alito, which concludes that the Office of the Attorney General could not select a successor under the relevant statute? What led you to change course and provide for Mr. Berman’s deputy, Audrey Strauss, to become his successor instead?

5. Before you made your statement on June 19 saying that Mr. Carpenito would replace Mr. Berman, what had you told Mr. Carpenito about Mr. Berman’s views on remaining in his position? Did you tell Mr. Carpenito that Mr. Berman had decided to step down?

6. What additional assurances, beyond your letter of June 20 to Mr. Berman, can you give that you will allow Ms. Strauss to serve in office until a Senate-confirmed successor is in place?

7. On June 20, you wrote a letter to Mr. Berman indicating that President Trump had sought his departure—that is, fired him. But, soon thereafter, President Trump said publicly that he was “not involved” in the matter and that it was entirely in your hands. Which was it?

8. Without publicly identifying any particular investigation, are you aware of any matters whose investigation is being overseen by the Southern District of New York involving President Trump or his business, charities, or other such entities linked to him personally?

9. Have you ever discussed any of these cases with the President?

10. Have you ever sought to have the Southern District of New York not pursue a criminal investigation or prosecution that Mr. Berman wanted to pursue?

11. Would it have been inappropriate for you to try to have Mr. Berman stop the Southern District’s criminal investigation or prosecution of Turkey’s Halkbank? Under what circumstances would it have been inappropriate? (For more on Halkbank, see #55 below.) Would it have been inappropriate for you to try to have Mr. Berman stop the Southern District’s criminal investigation or prosecution into Rudy Giuliani? Under what circumstances would it have been inappropriate?

12. Regardless of whether the president had good reasons to nominate Jay Clayton to head the Southern District, why would you take the unusual step of removing Mr. Berman before the Senate confirmed his successor?

13. Are you of the opinion that because a sitting president is immune from indictment, federal prosecutors should not investigate the president while he is still in office for any matters such as insurance fraud?

14. You testified before the Senate that Robert Mueller should have made a recommendation for or against indictment of President Trump. Does the same apply to federal prosecutors (including the Southern District) as well? If they were to conduct a criminal investigation of the president, should they also reach a formal conclusion as to whether he is indictable for the relevant criminal offenses? (see also #58 below)

B. Michael Flynn’s Prosecution

15. Are you aware of any other case in which the Justice Department, after obtaining a guilty plea from a defendant and without a court identifying any error, sought to dismiss the charges to which that defendant pleaded guilty?

16. The analysis of materiality provided by the Justice Department in its motion to dismiss the charges against General Flynn and in subsequent court filings is novel. Have you applied it to any other pending cases?  [The answer should be “no.”]  Have you analyzed methodically to which other pending cases that analysis applies? Or another way of pursuing this same issue: A week before the Justice Department filed its motion to dismiss the charges against Flynn, the Department submitted a brief in another case setting forth the standard definition of materiality, which differed dramatically from what was said in the Flynn case. How do you explain this discrepancy?

17. The Justice Department’s abrupt decision to drop the charges against Flynn prompted the career prosecutor who’d been handling the case to withdraw from the matter, much as the Department’s abrupt change in a sentencing recommendation for Stone caused the career prosecutors who’d been handling that case to withdraw (and, for one of them, to leave the Department entirely). Why do you think that is?  What does it say to you when decisions being made in a very small number of cases involving the President’s close associates are prompting these very unusual reactions from the Department’s career workforce?

18. How would you characterize the FBI’s counterintelligence mission? If the FBI becomes aware of a close associate of the president—such as his national security advisor—having lied to another close associate of the President—such as his vice president—about his interactions with foreign powers, do you think that the FBI should simply remain a passive bystander, or do you regard some further action as appropriate?

19. It’s clear, from his own words, that President Trump doesn’t believe that General Flynn should be punished for what he did. The President has the authority to make that so through the pardon power.  Why did your Justice Department seek to dismiss the charges to which General Flynn had already pleaded guilty—an unprecedented step, as noted above—rather than simply advise the president about the proper way to achieve the result he’s seeking in the matter?

C. Roger Stone’s Sentencing

20. Do you hereby testify that everything you said in your interview with ABC News on February 13 is true and accurate – including your description of the events related to the Roger Stone sentencing and your more general statement that “the president has never asked me to do anything in a criminal case”?

21. You redacted significant portions of the Special Counsel Report which had to do with Roger Stone, specifically those portions that pertained to the President’s knowledge of releases by Wikileaks, including that Mueller “established that the Trump Campaign expressed an interest in the Wikileaks releases, and that former Campaign member Roger Stone was in touch about those releases, claiming advance knowledge of more to come.” Why did you redact this part of the Special Counsel Report?

Even after Stone was sentenced, your department still did not unredact the above information. Why not?

22. Before Stone’s sentencing, have you ever (as Attorney General now or previously, or as Deputy Attorney General before that) overruled line prosecutors on a sentencing recommendation that was within the guidelines range?

23. Have you ever prosecuted a case? [The answer will be “no.”] On whose prosecutorial expertise did you rely on coming to your conclusion that the recommended sentencing range in Stone’s case was too high?

24. In general, what justifies overruling line prosecutors on a sentencing recommendation within the guidelines range? What standard do you apply, and is it written down anywhere? Isn’t it against your Justice Department’s policy not to seek a sentence within the guidelines range and indeed not to seek the maximum for Stone?

25. Given that you’ve criticized district attorneys around the country for advocating for lower sentences, what makes the Stone sentence one that you regarded as too high rather than too low? How do you justify overturning the career prosecutors’ sentencing recommendation and asking the judge to depart from the guidelines in this case, especially given (1) the universally accepted emphasis on the role of the guidelines in providing uniformity in sentencing and (2) the inescapable facts that the defendant in this case is a close friend of the President and associate of his own presidential campaign?

26. Do you believe that, when as here a case involves a personal associate of the president, there may be an appearance of partiality in your intervention? Did you consider delegating this decision to a non-political official at the Justice Department?

27. Can you provide this committee with specific instances, since you have been the Attorney General under President Trump, where you have intervened in a sentencing recommendation on a case that did not personally affect or involve the president or someone he knows personally?

28. Senator Lindsey Graham said that the revised sentence was in fact within the guidelines range because the victim allegedly didn’t feel threatened. But the guidelines range depends on whether the threat included violence, not whether the person threatened did or didn’t feel threatened; and, given that Stone’s threat did include violence, the original sentence was the one actually within the guidelines range. So isn’t Senator Graham simply incorrect?

29. The revised sentencing recommendation asks the judge to take into account Stone’s age and health. However, the guidelines allow health to be considered only for “an extraordinary physical impairment” such as “in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.” And age can be a consideration only if it creates conditions that are of “an unusual degree and distinguish the case from the typical cases covered by the guidelines.” What extraordinary or unusual conditions does Stone have that meet these tests set out in the guidelines?

30. Isn’t it against the policy of the U.S. Attorney’s Office for the District of Columbia not to give a specific recommendation to the court, and hasn’t the judge said she wants a specific recommendation? So how is it consistent with that policy and direction for you to say in your ABC News interview that you personally decided not to give a recommendation? When has that happened other than in Stone’s case?

D. Handling of the Ukraine Whistleblower Complaint

31. Do you hereby testify that everything said in Department of Justice statements about your involvement in the President’s and Rudy Giuliani’s actions toward Ukraine are true and accurate – including the following:

(i) “The President has not spoken with the Attorney General about having Ukraine investigate anything relating to former Vice President Biden or his son. The President has not asked the Attorney General to contact Ukraine — on this or any other matter. The Attorney General has not communicated with Ukraine on this or any other subject. Nor has the Attorney General discussed this matter, or anything relating to Ukraine, with Rudy Giuliani.” (Justice Department Statement, Sept. 25, 2019)

(ii) “Mr. Bolton also said that after the president’s July phone call with the president of Ukraine, he raised with Attorney General William P. Barr his concerns about Mr. Giuliani, who was pursuing a shadow Ukraine policy encouraged by the president, and told Mr. Barr that the president had mentioned him on the call. A spokeswoman for Mr. Barr denied that he learned of the call from Mr. Bolton; the Justice Department has said he learned about it only in mid-August.” (New York Times, Jan. 28, 2020)

(iii) “The Attorney General was first notified of the President’s conversation with Ukrainian President Zelensky several weeks after the call took place, when the Department of Justice learned of a potential referral. The President has not spoken with the Attorney General about having Ukraine investigate anything relating to former Vice President Biden or his son. The President has not asked the Attorney General to contact Ukraine — on this or any other matter. The Attorney General has not communicated with Ukraine — on this or any other subject. Nor has the Attorney General discussed this matter, or anything relating to Ukraine, with Rudy Giuliani.
A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election. While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.”
(Statement of Kerri Kupec, Spokesperson, Department of Justice (Sept. 25, 2019), as emailed by the Department of Justice to the House Permanent Select Committee on Intelligence).

32. When you saw that your name was included in the call memorandum at the center of the Ukraine whistleblower’s complaint and in the complaint itself, did you consider recusing yourself from anything related to the complaint? Whom did you consult about a potential recusal? What led you to decide not to recuse?

33. There is a longstanding rule, still in effect, that requires that possible election-law violations, like the one raised by the whistleblower’s complaint, be referred by the Justice Department to the Federal Election Commission. Why didn’t you order such a referral in this case? If you weren’t aware of this rule, you are now, thanks to this question—so will you be making the required referral?

34. Why was it appropriate for a whistleblower complaint that addressed behavior by the President and his National Security Council lawyers to be shared with the White House?

35. What role did you play in overseeing the Office of Legal Counsel opinion that concluded the whistleblower complaint should not be provided to Congress, despite the finding by the intelligence community’s inspector general that the complaint was required by law to be shared with Congress?

36. Did you consider that separation-of-powers concerns might warrant advising the House and Senate Intelligence Committees of the existence of a complaint filed with the ICIG, even if you believed that the substance of that complaint did not warrant forwarding it per relevant law? If not, how do you believe your interpretation of the law could have been adjudicated, given that it encroached on the interests of a coequal branch of government?

37. The Council of the Inspectors General on Integrity and Efficiency sent your head of the Office of Legal Counsel, Steven Engel, a letter roundly rejecting his legal analysis and requesting that he withdraw or modify his opinion. Has he done so? If not, is it your position that the Department of Justice can unilaterally overrule an IG’s conclusion that a whistleblower complaint involving the President is a matter of “urgent concern,” without informing Congress?

38. Have there been other whistleblower complaints forwarded to you that your department has concluded do not warrant forwarding to the appropriate members of Congress?

39. What would you say to members of Congress who publicly use the name of individuals alleged to be whistleblowers, given the legal protections afforded to whistleblowers and the emphasis on the anonymity available to them?

E. Investigating the Investigators: The Durham Investigation and More

40. After the Justice Department inspector general issued his report on the 2016 counterintelligence investigation, U.S. Attorney John Durham issued a statement casting doubt on the report’s findings (a stark departure from typical practice) and commenting on Durham’s own ongoing criminal investigation (another stark departure from typical practice)? What communications did you have with Durham before he issued his statement? Regardless of any communications with Durham then, do you regard his statement as appropriate, and if so why? You also made statements about Durham’s ongoing investigation in interviews with the press. Have you ever commented on an ongoing criminal investigation before?

41. Reports indicate that Durham is considering criminal charges based on his reassessment of the work of intelligence community analysts in 2016. What precedent does the Department have for considering criminal charges against intelligence community analysts based on later second-guessing of their analysis? If there’s no precedent, what standards will be applied to this novel approach?

42. Reports indicate that you’ve installed DOJ prosecutors to review the work of other DOJ prosecutors who successfully obtained a guilty plea from former National Security Advisor Michael Flynn, even as the case remains ongoing and the prosecutors on the case need to appear before a federal judge for Flynn’s long-awaited sentencing. What precedent is there for this type of second-guessing of prosecutors even as a criminal prosecution remains ongoing, especially in the absence of any apparent improprieties or misdeeds? What standards did you apply when determining that this particular case deserved this unusual scrutiny? Even if you cannot discuss an ongoing review, under what conditions would you bring in an outside prosecutor to review an existing or prior criminal case for wrongdoing rather than the Inspector General?

43. The same reports indicated that you have or are planning to have DOJ lawyers second-guess other cases of particular interest to the president. What other cases are those? What standards did you apply and will you apply to identifying them? What historical precedent is there for this approach?

44. Does your theory of essentially unlimited and unreviewable executive power apply to presidents who have previously occupied the Oval Office? If so, didn’t President Obama clearly have the authority to investigate allegations of election interference by a hostile foreign intelligence service, including evidence that the service may have been in contact with a presidential campaign—in which case isn’t Durham’s entire investigation moot, and perhaps even inappropriate?

45. Has the President every communicated with you about his view on the speed of the Durham investigation, including (1) when Durham will conclude his work and/or (2) how that timing relates to Election Day 2020?

46. On June 21, you told Fox News that, with respect to the Durham investigation, “what happens after the election may depend on who wins.” That seems a pretty candid acknowledge that the investigation is politically tinged—after all, Attorneys General generally assume that the Justice Department’s investigations won’t be affected by election results precisely because they regard those investigations are not  Aren’t your remarks an acknowledgment of your own awareness that the investigation is so political in nature that it very well might not survive into a different administration?

47. George J. Terwilliger III, a deputy attorney general under President George H.W. Bush, correctly stated , “There’s a long-standing [Justice Department] policy of not doing anything that could influence an election.” In a recent radio interview, you inappropriately suggested that the department’s policy of non-interference in elections applies only to indictments against candidates or their close aides. Can you assure Congress and the public that you will abide by the long-standing policy in the run up to the November elections? Do you acknowledge that the Durham investigation (including the issue of unmasking) has been explicitly—though misleadingly—framed by the president and some Republican members of Congress as though it implicates Joe Biden, such that the related investigations is certainly covered by the policy of non-interference in elections? (see also Part F below)

F. New Policy for Opening Campaign-Related Investigations

48. Is there any precedent for requiring the personal approval of the Attorney General himself for the FBI simply to take the initial step of opening an investigation?

49. Is there any precedent for requiring FBI notification to the Assistant Attorney General simply “upon opening an assessment” or “taking exploratory investigative steps”?

50. The Senate Intelligence Community recently published the third volume of its report on 2016 Russian election interference, and its central conclusion is that too little was done in 2016 to investigate the very real penetration of American democracy that the Kremlin achieved through the vulnerabilities offered by the Trump campaign. The natural additional conclusion is that, in the future, more must be done; yet your new policy would make it harder to do more. Why do that?

51. Your Criminal Division concluded that Trump’s request to President Zelensky to open an investigation of Joe and Hunter Biden did not constitute solicitation of a campaign contribution warranting any further investigation. Is there an OLC opinion on that? If not, how did you arrive at that legal conclusion?

52. Are there circumstances under which the same behavior could be legal if done by the president, but illegal if done by a “regular” presidential campaign? For example, if President Trump were to solicit directly from a foreign intelligence service the hacking of a rival presidential candidate’s emails, would any possible criminal or civil liability that would attach to a regular presidential campaign disappear because Trump is the president?

53. You told ABC News, “If [the President] were to say, you know, go investigate somebody because – and you sense it’s because they’re a political opponent, then an attorney general shouldn’t carry that out, wouldn’t carry that out.” What standard exactly is it you’re proposing to apply in such circumstances? Would it be met by a request by President Trump to you to investigate Joe or Hunter Biden right now? (See also # 47 above).

G. Miscellaneous

54. Manafort: For whom else other than Paul Manafort have you or your Deputy Attorney General interceded to change prison conditions? What was your personal role in that decision? Did you have any communication with the president or White House staff about Manafort’s transfer to Rikers before the Justice Department’s leadership intervened on Manafort’s behalf?

55. Halkbank: Did you have any communications with the President or White House staff about the criminal investigation of Turkey’s Halkbank? Did you try to avoid criminal indictment of the bank in the Southern District of New York? Why would the President or you try to avoid a criminal indictment of the bank given the serious allegations that it engaged in a multi-billion dollar scheme to violate U.S. sanctions against Iran?

Do you hereby testify that everything said in Department of Justice statements about the Halkbank investigation are true and accurate – including the following:

“While the Department of Justice has not reviewed Mr. Bolton’s manuscript, the New York Times’ account of this conversation grossly mischaracterizes what Attorney General Barr and Mr. Bolton discussed. There was no discussion of ‘personal favors’ or ‘undue influence’ on investigations, nor did Attorney General Barr state that the President’s conversations with foreign leaders was improper,” the statement said. “If this is truly what Mr. Bolton has written, then it seems he is attributing to Attorney General Barr his own current views — views with which Attorney General Barr does not agree.” (Justice Department Statement, Jan. 28, 2020)

56. Hush-Money Payments: Did you have any involvement in the Southern District of New York’s decision to close the investigation of hush-money payments that implicated the president?

57. Crossfire Hurricane: Do you have any reason to dispute Inspector General Michael Horowitz’s testimony in which he stated, “We did meet with Mr. Durham. … He said during the meeting that the information from the friendly foreign government was, in his view, sufficient to support the preliminary investigation”?

58. Possible Investigation of Trump: Is it your view that, if the Justice Department cannot indict a sitting president, the Department cannot criminally investigate a sitting president? Does that mean your Justice Department will not investigate President Trump even if there is evidence that he very likely engaged in criminal conduct, and even if investigation now may be necessary to preserve that evidence for possible future prosecution when he is out of office? (see also #14 above).

The post Specific Questions for Congress (and News Media) to Ask Attorney General Barr appeared first on Just Security.

Trends may shift, but the underlying drivers for domestic violent extremism such as perceptions of government or law enforcement overreach, socio-political conditions, racism, anti-Semitism, Islamophobia, and reactions to legislative actions—remain constant.

How does this intersect with Russia’s goal to interfere in the 2020 election?

First, the big picture: While there has been much discussion about Russia’s use of disinformation as a weapon to interfere in Western elections, it is only one piece of Russia’s larger use of political warfare. Russia’s full active-measures toolkit—one that goes back to the Soviet Union’s KGB—includes subversion, espionage, sabotage, propaganda, deception, provocation, spreading of rumors and conspiracy, weaponization of social media, and even assassination and promotion of violence. These tools are used together to weaken the Kremlin’s enemies and advance Russia’s political and foreign policy interests. As we discussed in our last article, Russian disinformation will be used to exploit an already polarized U.S. society and to manufacture outrage. Of course, as anger in the U.S. grows, the threat of political violence also builds, providing the Russian government another opportunity to use a familiar tactic to divide the country.

We know from 2016 that Russia’s disinformation campaign applies pressure precisely on the most politically divisive issues that will most effectively drive Americans apart. But as Special Counsel Robert Mueller detailed, some of its efforts went beyond encouraging passive consumption of divisive material to encouraging people to take action. For example, Russia manipulated Americans to participate in protests on opposite sides of emotionally charged issues—like immigration, or Black Lives Matter—at the same time and same place, likely with the hope that the confrontations might turn violent. In the lead up to the 2018 midterm elections, the FBI uncovered Project Lakhta, a disinformation campaign that had as one of its talking points encouragement of “civil war” in the event that President Donald Trump was impeached as a result of Mueller’s findings. This exhortation has alarmingly been echoed at times by Trump supporters and Fox News commentators. Trump himself has pushed the notion that the country could fall into civil war if he is removed from office. On cue, Russian state media repeated this, no doubt thrilled that their agitations had entered the mainstream.

So, what would the next iteration of this effort look like? A look at Russia’s actions in Europe and past practice suggests the United States should prepare for the worst. Russian military intelligence has been involved in destabilization efforts across Europe, including assassinations and insurgencies.

Russian intelligence has a history of building relationships with many far-right groups, in order to exploit their anger and drive violence. As Michael Carpenter wrote in The Atlantic, Russian President Vladimir Putin exploited fight clubs, motorcycle clubs, neo-Nazi soccer hooligans, anywhere and everywhere you find angry white men ready to fight. Carpenter wrote, “These groups serve as the perfect unwitting agents to accomplish Moscow’s twin goals of destabilizing Western societies and co-opting Western business and political elites.”

The October 2016 parliamentary election in the small Balkan country of Montenegro serves as a stark warning. According to government documents, the GRU planned to assassinate the prime minister and place the country in the hands of pro-Russian opposition politicians. The plan called for GRU officers to use WhatsApp and other messaging apps to spread disinformation claiming the vote was rigged, with the aim of inciting the public to take to the streets in protest, at which point a group of mercenaries – dressed in stolen Montenegrin police uniforms – would open fire on the crowds. Chaos would ensue. The prime minister would be assassinated, and the pro-Russian opposition would then swoop in to fill the leadership vacuum.

To hide the fact that the GRU was behind the operation, Russian intelligence officers hired far-right groups to carry out the coup on their behalf. In the end, Montenegrin authorities foiled the plan, reportedly after receiving information from Western intelligence services. Two alleged GRU officers were later convicted for their involvement and sentenced to 15 and 12 years in prison.

Another example, as Elizabeth Grimm Arsenault and Joseph Stabile documented recently for Just Security, is the Hungarian National Front, a neo-Nazi paramilitary group that has done more than play a role in Russia’s disinformation apparatus. The group has participated in paramilitary training directly with Russian military intelligence officials who were in Hungary under diplomatic cover. As one Finnish observer put it, Russia’s training support to the group fits the pattern of Russia supporting “fringe groups in an effort to destabilize or simply disorient the European Union.”

More recently, at least one member of a GRU group was tracked to Spain, where authorities are investigating if he has connections with an anonymous online group that organized thousands of people to take over the Barcelona airport during political protests last October, resulting in the cancellation of more than a hundred flights.

Again, the pattern is clear to anyone who follows Russian intelligence modus operandi closely. They have rallied masses of people to take action, with violence as a goal.

While no data has been released publicly about ties between Russian intelligence and extremist groups in the United States, we should not underestimate the possibility that such ties exist and that these groups could be used to further polarize society and to scare off protesters, demonstrators, and eventually voters. We know Russian intelligence has aimed to infiltrate conservative groups in the United States, including the National Rifle Association (NRA) and evangelical groups. Putin has an image of himself as the embodiment of masculine and conservative values. His topless photo shoots are a laughable component of this, but he has used this kind of propaganda to insinuate “Russian values” into conservative groups across the globe. The Kremlin trys to appeal to far-right sensibilities in the U.S., portraying Russia as a white, Christian, anti-immigrant and anti-homosexual country. Maria Butina, who presented herself as a Russian gun rights advocate, tapped into this as she courted Republicans through the NRA and at events like the National Prayer Breakfast.

In addition, just last month, a BBC investigation found that the leader of The Base, a white nationalist group in the United States that the FBI is investigating for terrorism, is currently living in Russia, from where he runs the group. The FBI has said The Base is a “racially motivated violent extremist group” that “seeks to accelerate the downfall of the United States government, incite a race war, and establish a white ethno-state.”

According to the BBC, last year, the group’s leader, Rinaldo Nizzaro, who is currently based in Saint Petersburg, “was listed as a guest at a Russian government security exhibition in Moscow, which ‘focused on the demonstration of the results of state policy and achievements.’”

We would not be surprised to learn that rallies, like the recent pro-gun gathering in Richmond, had gotten a boost—in money, in people, in messaging—from people with connections to Russian intelligence. These groups are primed for exploitation and Russian intelligence has a history of doing just that.

The American public needs to be aware of the tactics our enemies are likely to utilize as we barrel toward November. The more we understand their actions and our vulnerabilities, the better we can control how we consume and share information and how we react to those trying to bring out the worst in us.

Image: An alt-right sympathizer (L) knocks the hat off an opponents head as alt-right activists, anti-fascist protestors, and people on all sides of the political spectrum gather for a campaign rally organized by right-wing organizer, Patriot Prayer founder and Republican Senate candidate Joey Gibson in Portland, Oregon, August 4, 2018. Photo by Thomas Patterson/AFP via Getty Images

The post Why the 2020 Election Will Be A Mess Part II: Beyond Russian Disinformation appeared first on Just Security.