The Pernicious Legacy of the Mueller Investigation

by | May 29, 2020

The Pernicious Legacy of the Mueller Investigation

by | May 29, 2020

Director Robert S. Mueller Iii

Anyone who reads newspapers, watches cable news, or frequents social media newsfeeds is well aware that, over the last few years, allegations have snowballed both from the United States government and commercial news media that Russia directly interfered in the 2016 United States presidential election to benefit the Republican candidate, Donald Trump. On April 18, 2019 the long trail of these allegations culminated in what is almost universally considered in our news media as the ultimate guilty verdict: the 448-page redacted report released by ex-FBI Chief Robert Mueller, who was appointed by Congress as a nominally independent investigator.

The purpose of this paper is not to rule out these allegations. If anything, it’s easy to imagine that Russia could have had some motivation to influence our elections given the foreign policy differences between the two candidates; one who voiced support for working with Russia, and the other who likened Putin to Hitler. One also cannot forget that, when our country had analogous interests in the outcome of Russian elections in 1996, there is evidence that we openly interfered to get our preferred candidate elected.

Rather, based on the available evidence, much of it systematically ignored by the U.S. commercial and State media, this paper is simply a citizen’s effort to assess the integrity of a congressionally-authorized investigation—allegedly independent and impartial—that could potentially have a major impact on the relations between the world’s two largest nuclear superpowers. Given that, as of this paper, the U.S. ranks no higher than 48th among countries of the world in freedom of the press, the integrity of American media coverage of the Mueller Report also has to factor into this assessment. Despite what has been implied in the liberal media, critics of Mueller are not just from the far fringes of the political right and left wing. They include seasoned ex-diplomats, professors from reputable universities, alumni of our national security agencies, and respected journalists outside of commercial media.

Among those at the forefront of dissent is a group calling itself the Veteran Intelligent Professionals for Sanity (VIPs) that has included 23 alumni, some highly placed, of the FBI, CIA, NSA, and military intelligence. The most prominent member of this group is William Binney, a Technical Director who has over 30 years of experience at National Security Agency and actually developed some of the software the agency uses to detect cyber intrusions. Much of the narrative in this paper is based on the testimony of the above sources.

Where “Russiagate” Started

Speculation as to how growing demonization of Russia started in the first place will vary depending on the political orientation of the observer. Adherents of the so-called “realism” school of international relations (for example, Harvard University professor Stephen Walt and University of Chicago professor John Mearsheimer) will likely see Russiagate at least in part as just the latest chapter in the history of American interventionism with the objective of dominating and isolating Russia ever since the fall of the Soviet Union. As noted by Princeton and NYU Professor Emeritus of Russian Studies Stephen Cohen, adherents of the political right wing (for example, Fox News) will likely see the genesis of Russiagate in the Democratic Party’s efforts to dig up dirt on Trump in Russia. Conversely, the liberal community (for example, The New York Times and MSNBC) will likely see the starting point of Russiagate in the vigilance of the FBI when it apparently detected possible collusion between one of President Trump’s advisors, George Papadapoulus, and alleged Russian proxies offering dirt on Democratic presidential candidate Hillary Clinton. Libertarians and those on the farther left have even speculated about former CIA Director John Brennan’s role in stirring up conspiracies about Russia to bring down President Trump. A case could also be made that the issue goes back to the 2012 Magnitsky Affair that resulted in U.S. sanctions against Russia based on allegations surrounding the death of a whistleblower in a Russian prison (as of this paper, the narrative regarding this affair is in some controversy).

Where We Are Now

Whatever Russiagate’s origins, and the continuing disagreements between Democrats and Republicans as to the Mueller Report’s claims of collusion and obstruction of justice by the Trump Administration, the entire spectrum of both political parties accepts as fact that Russia hacked into the Democratic National Committee (DNC) computer server during the 2016 presidential campaign. Further, there is bipartisan consensus that Russia recruited Wikileaks, an international organization well known for its disclosure—long under U.S. criminal investigation—of classified documents, to release emails damaging to presidential candidate Hillary Clinton.

Certainly all Democrats and at least some Republicans (mostly those opposed to Trump) accept as fact that Russia also flooded social media with engineered “fake” posts, memes, newsfeeds, and tweets intended to benefit Donald Trump’s campaign. In their view, these manipulations may have actually affected the outcome of the election and at the very least aggravated polarity between American citizens, undermining their faith in “our democracy.”

Lingering Questions

To sidestep accusations of “whataboutism,” I’ll put aside the argument that, since the United States appears to have interfered in the elections of some 80 countries in its history, any similar operations by Russia can be dismissed as just covert business as usual. I’ll also overlook the possibility that the American public had every right to know about the information released in the stolen DNC emails. The fact is that, based on international law and simple ethics, suspicion of undue meddling by a foreign power in democratic elections is a serious matter meriting investigation and, if appropriate, retaliatory action. In this case, however, two questions come to mind:

  1. What specific demonstrable evidence—including forensic analysis—would the United States be able to bring to the table if it were to prove its case against Russia in any respected international tribunal?
  2. If key evidence of election interference is classified and can’t be revealed, to what extent can claims by the U.S. security community be realistically taken at face value?

In keeping with the Mueller Report format, this paper addresses hacking and social media issues separately.

The Russian Hacking Allegations

What Normally Happens when a Hack Is Discovered in Government Computer Networks

The story leading up to the Mueller Report might as well begin on April 29, 2016 when the DNC first discovered a cyber intrusion in its servers and alerted the FBI. At this point standard practice would have dictated that the FBI take immediate possession of the servers and conduct its own forensic analysis to determine the immediate cause of the intrusion and neutralize its threat. But protocol would normally not stop there.

According to Jack Matlock, former U.S. ambassador to the Soviet Union during its last days, the FBI’s role would normally only be an understudy in this kind of investigation unless the cyber intrusion were related solely to domestic law enforcement. At the very least, any cyber intrusion impacting national security would require input from the CIA, the Defense Intelligence Agency (DIA), and the Bureau of Intelligence and Research (INR) of the State Department. With primary expertise in military affairs, the DIA would be the choice to weigh in on whether an intrusion came, as has been alleged, from Russian military intelligence (GRU). On the other hand, the INR’s participation would normally be mandatory in assessing foreign intentions and political activity. When it comes to identifying hacking, the NSA’s expertise would be applicable, since it monitors all data flowing in and out of the United States. All in all, input from the above agencies would both diversify expertise and allow for possible inter-agency disagreement requiring resolution.

Unfortunately, little evidence appears to have emerged that any of the above protocol was in fact followed.

What Actually Appears to Have Happened: The Commercial Sector Takes over

First, under pressure from the DNC, the FBI never took possession of the affected servers but allowed the DNC to delegate forensic analysis to its own hired cybersecurity companies, primarily Crowdstrike. FBI Director James Comey even acknowledged that the FBI violated its best practices by this lapse but justified the decision based on his confidence that Crowdstrike was a “high class entity” that could be trusted to fill in for the FBI. Diverse critics of this assessment, however, have cited the following:

  1. Relying on an entity already retained and paid by the DNC to conduct “independent” analysis is in itself an obvious conflict of interest. We saw a similar instance leading up to the 2008 financial crisis when bond ratings agencies gave impeccable grades to questionable bonds issued by the very companies that hired the agencies in the first place.
  2. According to security researcher, Claudio Guarnieri, private security firms can identify and expunge cyber intrusions but, unlike government security agencies, they are not in a position to do more than speculate as to the ultimate origins of the cybertrails. Based on the testimonials of cybersecurity experts, tracing a cybertrail accurately to its source is extremely difficult, all the more, since, as shown by Wikileaks’ revelations of the classified CIA “Vault 7” program, the CIA itself is certainly capable of fabricating a trail littered with false fingerprints. As a result, verifiable technical forensic evidence is critical to back up any accusation of hacking by foreign sources.
  3. As reported by Jeffrey Carr, CEO of Taia Global, Inc. (a cybersecurity company), part of Crowdstrike’s claim as to Russian hacking rests on the detected malware, Agent X, that collects and transmits hacked data to computers seeking to steal it. This malware has in fact been associated with Russia in the past, but, according to Carr, Crowdstrike overlooked that its use had spread to other parties including anti-Russian Ukrainians.
  4. Diverse sources have noted that the founder of Crowdstrike, Dmitri Alperovich, can hardly be considered impartial, since he’s been cited as a virulently anti-Putin Russian-born American and a member of the anti-Russia, predominantly neoconservative Atlantic Council (it’s worth noting that the keynote speaker at one of the Atlantic Council’s conferences was the interventionist Elliott Abrams, who was convicted for lying to Congress about his role in the Iran/Contragate affair).
  5. As reported by Scott Ritter, a former Marine Corps intelligence officer and journalist, Crowdstrike’s record is far from that characteristic of a “high class entity.” The organization has in fact been cited for substandard work, contradictory statements, and false claims. Aside from characterizing Russian hacking as one of the most sophisticated operations it had ever encountered and then citing what seemed like obvious signs of sloppiness by the Russians, Crowdstrike made highly publicized claims in December 2016 that it had uncovered Russian hacking into Ukrainian military equipment. Following dissenting analysis by other cybersecurity companies, Crowdstrike was forced to retract these accusations.
  6. Ritter also reported that in 2011, Alperovich, then working for McAfee, had also boldly claimed to have discovered that multiple hackings of private industries were part of an espionage campaign, which he named “Shady Rat,” originating in China. While this claim also generated considerable publicity in the U.S. media and even Congress, independent cybersecurity firms including Symantec conducted their own analysis of Alperovich’s methodology and ultimately characterized it as basically fraudulent and designed simply to promote his reputation.
  7. Ray McGovern, former CIA analyst and Deputy National Intelligence Officer, reported that, at the trial of Roger Stone (a Trump campaign aid accused of colluding with Assange and eventually convicted in November 2019 on a variety of charges, including witness tampering and lying to investigators), Crowdstrike never submitted a final report of its forensic analysis to the FBI and limited itself to three redacted preliminary reports.

Outside of its footnotes, the Mueller Report makes no mention of Crowdstrike.

Second, as reported by the VIPs and Ambassador Matlock, the national security community’s follow-up to Crowdstrike’s claims was not the broad based investigation that it should have been based on standard protocol. Instead, Director of National Intelligence James Clapper apparently hand-picked 12 staff members solely from the CIA, NSA, and FBI for this purpose. While this change of protocol in itself does not necessarily invalidate the integrity of an investigation, history has shown that “hand-picked” operatives are often more than aware of the results their superiors are hoping to find. For an example, we need only look back to intelligence justifying the invasion of Iraq.

Far from being an impartial party, Clapper has political leanings obvious to any viewer of MSNBC, where he has appeared, and his integrity has already been in question given Edward Snowden’s disclosures that Clapper had lied under oath to Congress in March 2013 about the CIA’s involvement in surveillance and torture. As a result, Clapper had to retract his claims in June 2013. It is also worth noting that Ambassador Matlock reported that he had been informed by a senior official that the State Department’s Bureau of Intelligence and Research did, in fact, have a different opinion regarding the hacking but was told not to express it.

The Plot Continues

With this background, we can now return to the unfolding story immediately following the DNC’s discovery of a cyber intrusion. After being hired by the DNC on May 4, Crowdstrike claimed to have discovered the hacking on May 6. It’s common practice for cyber security operatives to use the standard terminology APT (Advanced Persistent Threat) to describe serious cyber intrusions—especially if they’re believed to come from state sources. As Yasha Levine, an investigative reporter, noted, the first step in these cases is normally to analyze the breach’s data trail, which includes such items as source codes, language settings, compiler times, time zones, and IP settings. If the breach follows a pattern similar to that of a prior and well-known threat, the operative may assign a pre-existing APT number and, to add a little color, give the APT a more evocative name.

In this case Crowdstrike’s anti-hacking software, Falcon, detected two intrusions, which appeared to have similar characteristics to two older APTs 28 and 29, both alleged to have been associated with Russia but, as characterized by more than one observer, on extremely thin evidence. Crowdstrike named APT 29 “Cozy Bear” with the claim that it could be traced to the Russian FSB (Russian Federal Security Services) and then named APT28, “Fancy Bear” with the claim that it could be traced to the GRU (Russian Military Intelligence). These allegations are what appeared in the Mueller Report. It should be noted that, as per Binney, Crowdstrike did nothing to neutralize these intrusions until June 10, 45 days after the last DNC email message was copied, on the pretext that taking any action would have alerted the intruders to abort their effort. This rationale has understandably been cited as a gross violation of standard practices to protect confidential data.

The “Fancy Bear” malware was allegedly implanted in three instalments, the last one after Crowdstrike had installed its Falcon software. Falcon claimed to have identified the IP address to which the hacker was sending exfiltrated data but, as per Adam Carter, a British cybersecurity expert, overlooked that the address had been inoperational since an earlier hacking in the German Parliament. It’s worth noting that Binney had been puzzled why NSA couldn’t pinpoint the IP address and only offered “moderate” confidence in the FBI and CIA’s assessments about hacking origins, since NSA would normally have been the best positioned to track hacking back to its source.

In any case, as reported by Scott Ritter, the DNC legal counsel agreed at some point after May 6, 2016, that the intrusion should be disclosed to the American public. Ironically, Crowdstrike felt that the message would have more impact coming from the FBI, but the DNC rejected this suggestion and instead disclosed the alleged hacking to the Washington Post which ran articles on June 14 and 20, 2016. Shortly after the articles came out, a hacking cyberpersona calling itself Guccifer 2.0 came from out of nowhere and claimed to be responsible for the breach. It has been speculated that Crowdstrike was taken by surprise at this development and simply assumed that Guccifer was a front for the GRU based on some Russian “fingerprints” it detected (more clarification on these to follow).

The National Intelligence Community Takes over from Crowdstrike

Following Crowdstrike’s analysis, national intelligence and security agencies issued three successive reports:

  1. On October 6, 2016 the Office of Homeland Security and Director of National Intelligence issued a one page Joint Statement simply expressing confidence that the DNC intrusion could be traced to the Russian government and warning election officials to be vigilant for any future intrusions.
  2. On December 29, 2016 the Office of Homeland Security and the FBI then issued a Joint Analysis Report providing more technical detail regarding allegations and also recommending remedial and protective measures for potential victims to take. Its accusations were limited to pointing out that the release of DNC emails was consistent with methods and motivations of Russian hacking in the past.
  3. On January 6, 2017 the CIA, NSA, and FBI issued the Intelligence Community Assessment (ICA) by repeating the same charges as before but now with a much higher degree of certainty. Even the ICA, however, acknowledged the difficulty of identifying the origin of cybertrails of this kind and clarified that “high confidence” does not preclude error. To put this claim in perspective, Ambassador Matlock reported that, based on his experience, any claim based on irrefutable evidence would be stated as fact, while “high confidence” is what most normal people would call “our best guess.” “Moderate confidence” means “some of our analysts think this might be true.”

Aaron Maté, an independent journalist writing in The Nation, Real Clear Investigations, and other publications, also reported that the speedy ICA production schedule itself seemed to be a red flag. He referenced a statement made by former federal prosecutor Andrew McCarthy, who, while testifying before the House Intelligence Committee, indicated that an assessment characteristic of the ICA’s would normally take months if not a year and that there appeared to be a rush to produce it within a matter of days.

As noted by Daniel Lazare, an independent reporter writing in Consortium News, the ICA allocated some 7 of its 13 pages vilifying RT, the Russian state-owned media newsfeed, for its role in both spreading disinformation to sow discontent in the U.S. and also producing videos highlighting defects in the United States. I can add that this theme was amplified in 2018 by our entertainment media in the highly popular Showtime espionage series, Homeland, in which a Russian-fabricated video is portrayed as having needlessly provoked a gun battle between the FBI and right-wing survivalists that killed innocent people including children.

In search of corroborating evidence to validate the ICA’s claims, anyone taking the time to browse through RT will of course find a) bias and some outright propaganda not unusual for state-owned networks (The Voice of America, Radio Free Europe, and Radio Marti come to mind) and b) some tabloid trash designed to attract viewers. At the same time, especially in its wide variety of interview and news analysis programs, RT features reputable international journalists reporting and commenting insightfully on diverse global issues. As accused, much of the commentary does in fact focus on the United States’ less admirable features (many of which are systematically ignored by our commercial media), but the content of the programs is more often than not totally valid.

For the cold warriors still among us, it can be agreed that in the Soviet days, no self-respecting American short of an outright communist would be caught dead working for Pravda, the hallmark of Russian propaganda. However, rarely mentioned in the commercial media is that RT seems to be an acceptable platform for a variety of benign American media personalities (Larry King, for one) as well as journalists who left U.S. news networks they felt were inhibiting their ability to pursue truly investigative reporting (Chris Hedges from The New York Times and the late Ed Schultz from MSNBC come to mind).

For all the above reasons, claims by our intelligence community that the sole purpose of RT’s reporting is to corrupt American citizenry with undue negativity about our country and sow discord is flat out insulting to Americans and would be greeted with incredulousness in any international court of justice, especially given the highly biased, selective, and at times even false reporting that can be found in U.S. commercial media.

Beyond the above reports, Mueller indicted 12 Russian intelligence agents on July 13, 2018, charging them with interference in the American presidential election by hacking into the DNC server and distributing the stolen emails to Wikileaks. This indictment provided more detail—much of which made its way into the final Mueller Report—as to how these intrusions were alleged to have taken place. As noted by both Aaron Maté and former FBI Special Agent Coleen Rowley, however, the unequivocal charge in the indictment that Russian GRU officers “stole thousands of emails” was watered down to “officers appear to have stolen thousands of emails” in the final Mueller Report.

The Infamous Steele Dossier

The above dossier needs to be included in this paper, since it appears to have played a significant role in the growing charges against Russia in 2016. While acknowledging it as unverified and in some cases erroneous, the Mueller Report otherwise barely touches on the circumstances surrounding it.

As reported by journalists Joe Lauria in Consortium News and Jackson Lears in the London Review of Books, the legal counsel for Hillary Clinton’s campaign, Mark Elias, was paid in April 2016 to hire Fusion GPS, a commercial research and strategic intelligence firm (which oddly Mueller was unable to identify in his congressional testimony) to conduct “opposition research” that might connect Trump with Russia. Seeking what it considered the most informed source, Fusion contracted with Christopher Steele, a former British MI6 intelligence officer, who claimed to have contacts in the Russian government and ultimately provided the DNC with 17 reports between June and December 2016 allegedly from these sources.

The dossier eventually made its way into CNN’s hands but was not published, since, as noted above, its questionable sourcing included unverified claims and outright falsehoods (for example, allegations that Michael Cohen, Trump’s lawyer, had met with the Russians in Prague). After the dossier surfaced in the White House, however, Buzzfeed, the news and entertainment website, released it on January 10, 2017, drawing criticism from some observers for what they considered a lapse in journalistic ethics given the dossier’s flawed content.

As was noted even in the commercial media in December 2019, the dossier nevertheless formed the basis of the FISA (Foreign Intelligence Surveillance Court) authorization for the FBI to investigate Carter Page, a Trump advisor, for links with the Russians. It also does no credit to House Intelligence Committee Chairman Adam Schiff that he referenced the dossier as if it were an authoritative source in his opening remarks at a March 20, 2017 congressional hearing about Russian election interference.

Mueller’s First Two Prime Suspects: Guccifer 2.0 and DCLeaks

According to the Mueller Report, the GRU had set up a website by April 19, 2016, referred to as DCLeaks, before Guccifer appeared on the scene. This site was alleged to be the release point of various stolen documents from the DNC, many of which were encrypted so they couldn’t be made public until the timing was deemed by the GRU to be strategically appropriate.

At the same time, without appearing to offer forensic evidence, the Mueller Report claims that Guccifer was a stealth online persona designed by the Russians to appear as a rogue Romanian (named after the original Romanian Guccifer who was jailed in 2016) but who was actually a front for the GRU to hack into the DNC. This persona was alleged to have employed “spearphishing” (a technique that normally uses an email to divert the recipient to a website poised to install malware) to break into the DNC server and exfiltrate (extract) confidential files that were ultimately released to Julian Assange, Wikileaks editor and publisher.

Mueller’s claims as to Guccifer’s identity and role have been challenged by a variety of observers, first and foremost, the VIPs, for the following reasons:

  1. Binney’s forensic analysis of public data issued by Guccifer suggests that it intentionally added the Russian “fingerprints” noted above including a) characters in the Cyrillic alphabet and b) references to the founder of the dreaded Cheka, the forerunner of the KGB. Common sense alone of course questions whether these obvious giveaways would in any way be commensurate with an attempt at covert activity.
  2. Based on Adam Carter’s consultation with a linguist, it also appears that Guccifer’s speech contained errors uncharacteristic of any Russian speaker, and, as even acknowledged by a mainstream media outlet, The New Yorker, the documents Guccifer released with the intention of proving that it was the hacker turned out to be unrelated to the DNC and largely benign compared with those that Wikileaks.
  3. Further, Binney detected what he considered suspicious features in the data itself, indicating that Guccifer had applied an algorithm to make a single file appear as two different files released on two different dates, July 5 and September 1, and changed the hourly stamp on each file.

In Binney’s assessment, all the above considerations made it difficult not to conclude that Guccifer was in fact a fraud.

Hack or Leak? Internet Transmission or Thumb Drive?

One of Binney’s major arguments against the Mueller Report’s hacking claims was that the transmission speed of the alleged data infiltration was too fast for the Internet. To test this belief, Binney analyzed publicly available files released on July 5, 2016 (including such varied data categories as author, title, time, etc.) that Guccifer claimed to have hacked. To verify transmission speed capabilities achievable in 2016, Binney and an associate conducted a number of transmission tests from remote locations to the U.S. The fastest speed obtainable was from Britain to New Jersey and amounted to 12 megabytes per second. The speed that Guccifer actually achieved was close to 50, which, according to Binney, is fully in keeping with leaks to external storage devices like a thumb drive. Binney cites the above evidence to suggest that the DNC email disclosures were not due to remote hacking but to a local leak.

As reported by Politico, it should be noted that, when transmission speed issues were brought up at the above-cited trial of Roger Stone, prosecutors pointed out that file data flagged by Binney could have been released by Russian intelligence officers after the hack took place. Binney did acknowledge the possibility—remote as it was—that there could have been a Russian agent with access to the computers, who, with the help of outside hacking, was able to access the emails and download them into an external storage device. At the same time, this scenario not only appeared unlikely but also contradicted the self-certain claims in the Mueller Report and has been unsupported by any offered evidence.

To maintain fairness, it also needs to be noted that there was some dissent within the VIPs as to whether the cited transmission speeds in fact precluded hacking. These dissenting views were given some coverage in the September 1, 2017 edition of The Nation magazine that featured opinions from various sources considered as expert. At the same time, in response to several of his challengers, Binney presented counter arguments and stood by his claims. No further evidence came forth refuting him.

Apart from transmission issues, Binney also noted that the Guccifer data used a simple filing system called a File Allocation Table (FAT) that rounds each time stamp of a message up to the nearest even number. Again, as per Binney, this system is only used in external storage devices, while data transmitted through the Internet would only show random odd and even time stamps.

Given the tremendous global implications of Russiagate and Mueller’s conclusions, the debate in The Nation only underscores the critical importance of open ended analysis of evidence from expert sources rather than from solely a private cybersecurity company with glaring vested interests and questionable past performance. Despite vague references to the contrary coming from the intelligence community, observers have apparently failed to find evidence that any of these agencies ever conducted their own forensic analysis of data.

Mueller’s Third Prime Suspect: Julian Assange

Prominent among the accused in the Mueller Report for collaborating with the Russians in the release of emails stolen from the DNC is Julian Assange, the editor and publisher of Wikileaks. One of the most persuasive pieces of evidence in the Mueller Report is its reproduction of intercepted communication between Assange, DCLeaks, and Guccifer. At first glance, this communication, cited on various pages of the report, appears to prove collusion. When lined up chronologically and submitted to additional scrutiny, however, the thread has been characterized by several observers as raising troubling questions.

First, as reported by Aaron Maté, intercepted communication between Guccifer and DCLeaks took place on a Twitter account, a highly unlikely social media platform for espionage professionals given how easily monitored it is.

Second, as reported by Mueller, Assange announced on June 12, 2016 that he had “upcoming leaks” related to Hillary Clinton. But this announcement took place before cited communication between Assange and both of the alleged Russian fronts, and Assange received nothing from these counterparties until July 14. While Mueller notes that the FBI may have had limited access to this correspondence because of Assange’s efforts to hide it, the lack of evidence for earlier communication between the above parties still raises questions.

Most importantly, Mueller reports that Assange released 30,000 documents on July 22, 2016, only four days after he allegedly received them from Guccifer. In the sections of the report in which Assange is quoted (under the heading “Dissembling”) it was not mentioned that he categorically denied ever having released any of the documents that were received from Guccifer on July 18. His reason was that he already had the desired documents, and there was no time to validate the accuracy of the material, especially considering the questionable source. However one may fault Assange for unsavory personality traits and visceral antipathy to Hillary Clinton, it has been pointed out that Wikileaks’ journalistic reputation rests solely on the accuracy of its released documents. The discovery of any fabrication would have ended Assange’s career, and it therefore defies credibility that he would have released 30,000 documents for the most part sight unseen.

As noted by the VIPS, Assange’s attorney had been in negotiation with the Department of Justice on March 17, 2016 and offered to share evidence regarding the leaks but was rebuffed by Mark Warner, the Vice Chair of the Senate Intelligence Committee. However suspect Assange’s credibility may have been at that point, could there have been any harm in meeting with him on the chance that admissible evidence might be forthcoming? Similarly, Craig Murray, former British ambassador to Uzbekistan and an associate of Assange, claimed to know the source of the DNC disclosures but was never interviewed.

Mueller Finally Makes His Case in Public

For most Americans, Mueller’s much anticipated appearance to present his report and respond to questions before Congress on July 24, 2019 was all about Trump’s culpability or exoneration regarding Russian collusion and obstruction of justice. In keeping with the intent of this paper, however, I focus only on what evidence Mueller provided at that hearing beyond what was already in his released report regarding evidence of direct Russian interference in our election. Largely true to his word, Mueller added very little new information at the hearing and only raised questions by what he avoided in his presentation and responses to questions.

Based on reporting by Joe Lauria, Mueller’s case was not helped by his dodging legitimate questions as to whom he failed to interview in his investigation and why. For example, Joseph Mifsud was a somewhat mysterious Maltese academic with alleged Russian connections who approached George Papadapoulos—a foreign policy advisor to Trump—with an offer of dirt on Hillary Clinton. Mueller refused both to explain why Mifsud was not charged despite his having lied in testimony to the FBI and also to address allegations that Mifsud might have been a U.S. asset for the State Department and FBI. As reported by Daniel Lazare, Mueller’s silence also applied to other alleged Russian “assets” who appeared to have U.S. government connections, including Felix Sater, Henry Oknyansky, and Konstantin Kilimnik.

Lauria also reported that Mueller was guilty of a false accusation in characterizing Wikileaks’ release of DNC emails as a violation of the law, since the emails were not classified, and Wikileaks was never accused of stealing them.

Finally, Mueller refused to discuss anything associated with the Steele Dossier, which was of course implicated in the December 2019 revelations of FBI flaws in the Russian collusion investigations.

Closing Observations Regarding Russian Hacking Allegations

None of the above narrative of course proves that Russian hacking didn’t take place nor denies that there is circumstantial evidence that it in fact did. However, the above does raise questions as to whether the Mueller Report, its related investigations, and its associated media coverage were commensurate with minimal standards of impartiality and thoroughness, especially when it came to addressing dissent. If Russia were a defendant in a courtroom, would it matter how airtight the prosecutor’s case was if no defense attorney were allowed to participate?

Allegations Regarding Russia’s Attack on Our Social Media

What We Know for Sure

Only a cyber security expert can credibly weigh in when it comes to hacking allegations, but an average citizen with common sense can certainly assess the validity of many of the accusations leading up to Mueller’s claim that the Russian government orchestrated social media interference, at worst altering the course of our election and at best aggravating political polarization to the detriment of our democracy. At this point we can overlook the technicality that the U.S. is not a democracy but a republic and skip over the possible claim that domestic threats to our democratic institutions are far worse than anything coming from abroad.

Everyone agrees that a shadowy organization with the comically deceptive name of Internet Research Agency (IRA) acted as a “troll farm” polluting our social media with tens of thousands of newsfeeds, posts, memes, and tweets that fabricated the identity of the parties originating them. At issue is what the IRA’s intent was and what effect its intrusion had on either election outcomes or social conflict among our citizens. In other words, is there substantial evidence precluding the possibility that the IRA’s social media campaign was nothing more than a clickbait scheme to exploit gullible Americans and take their money?

The Story behind the IRA

The most thorough reporting I encountered that challenges the prevailing narrative about the IRA’s likely intentions in its social media manipulation comes from the investigative website, Moon of Alabama. This source has a long history of insightful and well-documented analysis of world current events and has been attributed with more than sufficiently credible sourcing to be taken seriously by even the watchdog website Media Bias/Fact Check. Much of the copy below draws from MoA.

The owner of the IRA, Yevgeny Prigozhin, has been characterized by several sources, including The Wall Street Journal, as a somewhat sketchy food service entrepreneur who was awarded contracts with the Russian military and school system. His career in manipulative social media apparently started when parents, outraged by his substandard school cafeteria food, wrote scathing comments on schools’ websites. In response, Prigozhin thought to hire people to impersonate parents and flood the comment threads with testimonials praising the food.

Viral Attack or Clickbait?

The above strategy apparently proved remarkably successful and, as per more than one observer, would have logically provided the motivation to expand into international clickbait operations. In fact, it’s been pointed out that there’s nothing in the Mueller Report ruling out the possibility that the IRA’s intrusion had little to do with elections and a lot to do with fleecing the American public. For example, most of the IRA’s alleged legal violations would seem to be in line with the following standard practice for clickbait:

  1. Research niche target markets including puppy lovers, evangelists, minorities, the LGBT community, etc. and determine the kinds of posts that would attract viewers and encourage them to share the posts.
  2. Find Americans or create phony identities to serve as fronts for PayPal accounts to transfer money to Russia.
  3. Engineer such social events as political rallies to further expand interest and build more viewers.

In fairness to Mueller, his report did claim that some IRA employees had verified that their intent was to influence the election, but there were neither specifics offered nor speculation as to why the IRA would have invested so much of its resources in initiatives that had nothing to do with the election. It’s of course reasonable to assume that Prigozhin, a staunch Putin supporter, would have been averse to posting anything that could aid Hillary Clinton’s campaign, but it also appears that, despite a preponderance of posts implicitly favorable to Trump, the political affiliations reflected by the IRA posts covered a wide range.

Needless to say, the most effective targets for clickbait would be groups holding mutually hostile views and likely to be provoked by inflammatory posts. But to conclude that the intent of the posts was to “sow discontent” and “undermine our democracy” seems not only farfetched but also an insult (maybe some would say partially deserved) to the American people for the following reasons:

  1. There is already an avalanche of toxic and inflammatory social media in our midst compared with the miniscule presence of IRA posts, and, second, it’s hard to imagine that, given the divisive passions already rampant in our society, any meme or image would prompt anyone to make a radical change in their pre-existing political views.
  2. It can be convincingly argued that Americans who’ve relinquished any responsibility to check out sources of dodgy and juvenile posts and instead take them at face value are the real problem.
  3. Would Russian intelligence, which would seem to rely on sophisticated techniques developed over decades, delegate a major social media campaign to a discredited food service entrepreneur? Would Russian intelligence rely on highly juvenile, crass, and often primitively designed posts (for example, Jesus comforting an adolescent boy trying to stop masturbating) to sway an election involving over 100 million people?

Beyond the above considerations, it has been pointed out that knee-jerk outrage over Russian posts could open the door to criminalizing any controversial opinions expressed by foreigners in our social media.

Assessing the Likely Damage to Our Elections and “Democracy”

Probably the most commonly referenced piece of verified data used to prove potentially damaging Russian interference in our elections is that, as disclosed by the Facebook general counsel in congressional hearings, the IRA released some 80,000 posts and news feeds in Facebook that reached 126 million Americans over two years including the period of the 2016 presidential election. This fact has been cited again and again in newspapers, cable news media, the Mueller Report, and most conspicuously in the congressional Mueller hearings by Jackie Spier, congresswoman from California, who characterized the intrusion as “an attack.”

At face value, the data is of course alarming, especially as the recipients of the fabricated items add up to the total number of voters in the election. A review of the transcripts of the same hearing also reveals, however, that a) 126 million Americans “may have received” these posts, b) there’s neither an indication of what percentage of the received posts are generally viewed by the average Facebook user nor how many of the 80,000 had anything to do with the election (only 7% of the posts apparently mentioned Clinton or Trump), and c) most significantly, the total number of news stories circulated during this time period amounted to a jaw-dropping 33 trillion or so, which means that the IRA posts amounted to .0000000024% of the total news stories.

The Mueller Report also alleged that the IRA created 3,814 Twitter accounts reaching 1.4 million people during the election campaign, but even the report conceded that more than 90% were not election-related, and the 15,000 tweets that the IRA released contrasted with 189 million coming from all sources.

A revealing postscript to the above narrative took place on February 16, 2018, when Mueller indicted 13 people and three companies associated with the IRA. Hardly expecting any of the defendants to appear, Mueller’s team was apparently taken by surprise when one of the companies, Concord Management Consultants, showed up on May 18 and, after hiring a Washington lawyer, asked for its day in court. Initially, Mueller apparently attempted to brush off this challenge by claiming that the defendant had not been properly served, and when that effort fell short, prosecutors tried to limit Concord’s access to evidence owing to its “sensitivity.” But a hearing was ultimately held under seal on May 28, and by July 1, 2019 the presiding federal judge, Dabney Friedrich, issued a ruling directing Mueller to cease and desist in claims of any connection between the IRA and the Russian government simply because there was no legally admissible evidence to support the claim. In fact, Mueller’s proof was limited to references to an article in The New York Times and photos of Prigozhin shown together with Putin.

It is a sign of the hysteria surrounding this issue that, despite a clear reference to this ruling by one of the Republican congressman in the Mueller hearings on July 24, 2019, the ruling was systematically ignored by all the Democrats, first and foremost Jackie Spier, who continued to accept the claims as fact.

Adding to the cyber intrusions, the Mueller Report cites numerous divisive rallies and protests fomented by fake posts. It appears, however, that these events were for the most part sparsely attended, sometimes by fewer than 10 people.

Closing Observations Regarding Social Media Intrusions

As was true for the hacking controversy, the above evidence does not preclude either that the IRA’s social media intrusion was in fact intended to influence the presidential election or that it could have conceivably had enough impact to sway election results in closely contested states. At the same time, even if it could be shown that the IRA’s intent was to help Trump, research released in October 2019 by American, Danish, and Norwegian academics focusing at least on Twitter intrusions did not find any evidence that they had any effect on the election. Putting that data together with Judge Friedrich’s ruling and a measure of common sense, it’s hard to imagine Mueller’s allegations getting far in any reputable international court of justice.

Trust with Verification?

The above pages should provide at least some reasonable responses to the first question raised in this paper regarding the persuasiveness of the evidence the U.S. can provide to prove its case to the world. The second question regarding appropriate trust for the validity of classified information can be addressed much more briefly.

It seems fair to say that U.S. intelligence and security agency assessments of any threat to our country should be taken with a high degree of seriousness. At the same time, given at least some of these agencies’ long history of deception, covert operations, and in some cases, outright atrocities, can any truly investigative reporter take such assessments on faith without demonstrable forensic evidence? For that matter, can any member of Congress briefed on classified intelligence regarding cyber intrusions, but otherwise lacking knowledge of cybersecurity, really be qualified to weigh in definitively on these matters either, especially if that member has connections to the interests of the military-industrial-security complex?

I have yet to hear it remarked in our commercial media that, after years of strongly criticizing and even demonizing our security and intelligence agencies for their excesses, the liberal community has suddenly come to regard these same sources as champions of truth and justice, not only because they seem to have aligned more closely with the Democratic Party’s interventionist drift but also because they happen to be largely opposed to President Trump. The large number of alumni of these agencies who appear either as guests or regular contributors on liberal cable news outlets only reinforces this observation.

It therefore seems reasonable to give high credence to our security and intelligence community when it provides sufficient disclosure of evidence to stand in a hypothetical court of law. It does not seem reasonable to accept the community’s redactions when they are basically saying to the public, “You’ll just have to trust us.”

Mueller’s Allies and America’s “Open Society”

Freedom of the Press?

Volumes have already been written about the integrity of our country’s print and digital news media, but, as noted early in this paper, a “citizen’s assessment” of the Mueller Report can’t avoid directing major scrutiny to the media for its largely unquestioned support of the report’s Russian interference allegations with only rare acknowledgement of any legitimate dissent.

When acknowledgement does take place, it most often appears as a disingenuous façade of journalistic ”balance.” For example, a couple of years ago I was surprised to see that Professor Emeritus Stephen Cohen, a strong critic of Russiagate, was briefly interviewed on MSNBC off prime time by an anchor, Ali Velshi. While Velshi deserves credit for extending due respect to Professor Cohen’s policy positions and even subsequently sharing them with a panel of MSNBC regulars, the panel almost immediately changed the subject, and, as further discussion wore on, Professor Cohen’s interview might as well have never taken place. Similarly, as a daily reader of The New York Times, I can barely remember instances of this newspaper acknowledging Russiagate dissent other than when it attributed it to such obviously fringe sources as 4chan or the online message board Reddit.

The above examples suggest why the U.S. ranks so low in the world when it comes to freedom of the press. It’s certainly not that our country lacks admirable constitutional protections for free speech; rather, it’s that the combination of a) corporate media ownership and subsidies, b) media funding from large corporate advertisers, and c) government influence virtually controls almost all of American mainstream print and digital news sources. In this environment, newsfeeds can pass fact checking with flying colors and still be advancing falsehoods simply by virtue of information omitted.

Emblematic of the media hysteria directed toward Russia is also the number of news items that have been retracted, refuted, or at least strongly questioned. On March 23, 2019 Matt Taibbi, a journalist with The Rolling Stone, listed examples of such news stories (in some cases shown as actual headlines below) featured in such commercial media outlets as The New York Times, The Washington Post, and CNN:

  1. Russian operations hacked a Vermont utility
  2. Trump campaign aides had repeated contacts with Russian intelligence
  3. Email pointed Trump campaign to WikiLeaks documents
  4. After Florida school shooting, Russian ‘bot’ army pounced
  5. Some of the emails released by Wikileaks were forgeries
  6. Maria Butina, suspected secret agent, used sex in covert plan
  7. Paul Manafort met with Julian Assange in the Ecuadorian embassy
  8. Tulsi Gabbard, a Democratic Party presidential candidate, is backed by the Russians

Like the Mueller Report, most of the media appears to be functioning as the prosecutor to the exclusion of the defense attorney.

Guardian Angels or Propaganda Factories? Democracy, Progress, Values, and Integrity on the March

In addition to media bias, a disturbing if not surprising trend serving to reinforce unquestioned belief in Russia’s nefarious attacks on “our democracy” is the proliferation of seemingly non-partisan, independent think tanks, advocacy groups, and websites—all with lofty, progressive-sounding names promoting democratic values—that function as facades for blatantly anti-Russian and often interventionist policy positions. Representatives of these groups appear regularly on liberal cable news programs and newspaper columns, while, as noted above, rarely seen are any legitimate dissenters. Below is by no means a complete list of these “guardian” entities.

National Endowment for Democracy – A federally funded organization established in the 1980s to provide what has been characterized as a more respectable face for the kind of international covert activities, including elections interference, that had given the CIA a bad name.

Alliance for Securing Democracy – A security advocacy group with the specific mission of countering Russian subversion of “our democracy.” Its members include the neoconservative Bill Kristol, and the CIA has been cited as a source of funding. This organization is housed under another similar group, the German Marshall Fund of the United States.

National Democratic Institute – an allegedly non-partisan organization that claims to work with partners in developing countries to increase the effectiveness of democratic institutions. It is funded in part by the NED and the notorious USAID. A member of the NDI, Michael McFaul, former ambassador to Russia and a Putin critic, once contested the Russian President’s charge that the NDI had CIA connections but failed to mention that it functioned as an arm of the Democratic Party funneling millions of dollars toward what many observers have characterized as a U.S.-orchestrated regime change in Ukraine.

Center for American Progress – an advocacy and research organization with strong connections to the Hillary Clinton presidential campaign that blamed Russia for turning the election against the Democrats.

The Atlantic Council – A veritable who’s who of security state, military, and corporate interests. Past members include Henry Kissinger, James Clapper, Samantha Powers, and Rupert Murdock. The organization is funded by Arab Gulf oil producing countries, NATO, and the weapon industry. The Atlantic Council sponsors Bellingcat, allegedly a citizen’s investigative organization that has in fact been accused by a wide variety of observers of spreading significant disinformation, much of it directed against Russia.

Integrity Initiative – A charity funded by the British foreign office, NATO, and rightwing donors whose stated purpose is to expose the Russian threat to Western democracies. The organization has been accused of spreading disinformation and apparently recently lost its charity status.

Oxford University Computational Propaganda Project and Graphika – research organizations with funding from tech companies, media, and government agencies. Most significantly, they were commissioned by the U.S. Senate Intelligence Committee to study alleged Russian intrusion into U.S. social media and concluded that Russia launched a sustained effort to manipulate the American public and undermine democracy. Graphika has state and military connections.

New Knowledge (now known as Yonder) –a research and cybersecurity organization with links to the German Marshal Fund and the Alliance for Securing Democracy and funded in-part by venture capital. The organization’s activities have included alleging Russian influence in Tulsi Gabbard’s 2020 campaign, and they drew widespread scrutiny for staging a false flag operation that implied the Kremlin was working to defeat the Democratic candidate in the 2017 Alabama special election for the U.S. Senate.

Propornot (contraction of “Propaganda or Not”) – a shadowy website featured on the November 24, 2016 Washington Post front page, which gave credence (later retracted) to the website’s claims (based on alleged “expertise”) that some 200 newsfeed websites (which it listed by name) were unduly influenced by Russia, either wittingly or unwittingly. Many of these websites were in fact nothing more than sources of dissenting views to prevailing narratives in our media regarding domestic and foreign policy issues, and at least several of the websites were taken off the list after they protested.

European Values – a security think tank in the Czech Republic funded by various European government sources and the embassies of the United States and Israel. One of its major programs is Kremlin Watch, which “aims to expose and confront instruments of Russian influence and disinformation operations focused against Western democracies.” Similar to Propornot, European Values has also cited newsfeed websites allegedly under Russian influence. Not long after the Washington Post Propornot feature, European Values released a report, The Kremlin’s Platform for ‘Useful Idiots’ in the West, that criticized some 2,000 “idiots,” including respectable journalists and politicians, for appearing on RT.

The Open Society?

In 1945 the philosopher Karl Popper wrote a book, The Open Society and Its Enemies, in which he took to task the philosophers Plato, Hegel, and Marx for being, in his view, latent authoritarians who laid the groundwork for future totalitarian regimes on both the right and left. While there are reasons to disagree with much of Popper’s interpretation, certainly a truly “open society” with guaranteed rights exemplified by those currently in our Constitution, including freedom of speech, is a time honored ideal central to the cherished beliefs of most all Americans. It’s nevertheless telling that one or two of the philosophers that Popper demonized believed that, for all their admirable qualities, “pluralistic” systems like ours are also vulnerable to becoming facades behind which increasingly powerful interests exert more and more control without the public even being aware of it. While in no way invalidating the legitimacy of the democratic model, neither are these risks are imaginary if one looks at developments in our country.

Mandatory for any open society is a truly well-informed public with constant exposure to diverse news reporting and analysis without the necessity of exploring the obscure corners of the internet to get a full story on public policy issues. The Mueller Report and its unquestioned support by practically the entire American mainstream journalistic universe (at least when it comes to charges of Russia’s “attack” on our freedoms) do not appear to fit well into that scenario. It can be further added that even access to dissenting websites has been progressively suppressed by the manipulation of algorithms in search engines, as evidenced by the increasing difficulty of such reputable forums as CounterPunch to meet fundraising targets. Of course, it can’t be overlooked that some of the politically motivated attacks on the Mueller Report, especially those coming from the Trump administration, can also be regarded as a threat to the open society. Trump’s portrayal of the entire news media outside of right-wing outlets as “the enemy of the people” is a direct attack on freedom of the press.

At the same time, the self-aggrandizing claims of the liberal media to be guardians of “the truth” (as shown, for example, on full page ads in The New York Times) ignore that approaching the real truth requires that all credible evidence along with its historical context be examined before a conclusion is reached, especially on subjects with potentially major impact on world peace. As noted above, scoring well on “fact checking” is not enough, and one of the dangers in liberal media bias is that it’s more subtle and easily overlooked than the tirades coming out of the right-wing media.

It’s ironic that, at a time when accessible, well-sourced information is almost limitless on the internet, so much of the American public is retreating into isolated bubbles of self-justifying news narratives. It’s also ironic that some news sources like The New York Times that have their own obvious problems with impartiality are sponsoring educational programs for detecting “fake news.”

To avoid applying a double standard, I of course can’t escape that my own biases and the sources for this paper may be subject to their own “bubbles” and that there may be refutations of at least some of the evidence presented above. I can, however, hope that this paper will at least serve as a case study documenting the critical importance of allowing dialog and well-sourced dissent their rightful place in public discourse worthy of the open society that Popper defended.

Addendum: May 27, 2020

Since the completion of the above paper in early March 2020, Russiagate has been largely dormant and understandably pre-empted by the coronavirus pandemic. In recent weeks, however, there have been new Russiagate developments important enough to merit further reporting.

The Crowdstrike Transcripts

The most important of these developments relates to Crowdstrike, the private cybersecurity company whose claims appear to have formed the basis for the Mueller Report’s charges that Russia hacked into the Democratic National Committee computer server in 2016. Yet, as was noted earlier, the company’s name does not appear anywhere in the Mueller Report other than in a few footnotes referencing an article written by the company’s founder. More than two years after the Report was released, however, Crowdstrike’s role in the Russiagate investigation became abundantly clear when, on May 7, 2020, the House Intelligence Committee released 53 declassified transcripts of Russiagate-related interviews it held between 2017 and 2018. One of these happened to be with Shawn Henry, Crowdstrike’s president.

In what came across as evasive and barely articulate testimony, Henry clearly admitted that Crowdstrike had only uncovered suggestive evidence rather than anything concrete to implicate Russia in hacking the DNC server. Further, he acknowledged that, while the stolen DNC data was “set up to be exfiltrated,” there was no evidence that “it actually left” the server. As per Ray McGovern, “exfiltrate” means either transferring data out of a computer through hacking or copying it onto an external storage device. Given this distinction, Henry’s statement suggests that the data did in fact go to a storage device because if it had gone through the internet, Crowdstrike would have been able to track its departure. More detail about Henry’s testimony are found in articles by Ray McGovern and Aaron Mate here and here.

As to the identity of the suspected hackers, Henry again relied on suggestive evidence when he said, “There are other nation-states that collect this type of intelligence for sure, but…what we would call the tactics and techniques were consistent with what we’d seen associated with the Russian state.” The transcript also revealed that a) Perkins Coie, the law firm that hired Crowdstrike to investigate the intrusion into the Democratic National Committee server was one and the same that hired Fusion GPS to pursue the largely discredited Steele Dossier and b) Henry had previously served in the FBI Cyber Division under Robert Mueller.

It has been pointed out that Henry’s admissions were a possible explanation for why the language in the 2017 Intelligence Community Assessment (ICA) that the Russian GRU officers “stole thousands of emails” was watered down to “officers appear to have stolen thousands of emails” by the time it got to the final Mueller Report.

Of course even suggestive evidence is enough to raise suspicion of Russian hacking and warrant further investigation, but the troubling implications of the transcripts are obvious. As noted earlier, I’ve found no indications that U.S. intelligence agencies had any forensic evidence of hacking other than what Crowdstrike provided to the FBI in redacted reports. Unless the House Intelligence Committee had access to a smoking gun that is yet to be disclosed, Committee Chair Adam Schiff’s unequivocal claims of Russian guilt over the years would seem to be at odds with the forensic evidence that Crowdstrike presented to the committee.

This apparent disconnect also raises some suspicion as to why Henry’s testimony remained hidden for so long, since it could have at least corroborated some of the Mueller Report’s critics. Based on public records and official correspondence, the circumstances leading to the delay in the transcripts’ release are somewhat complicated, but they appear to boil down to a dispute between the White House and the House Intelligence Committee, which had come under Democratic control after the November 2018 mid-term elections.

Going back to September 2018, the Committee had agreed to release the transcripts as soon as the Office of the Department of National Intelligence (ODNI) completed its declassification review of their contents. The dispute began when, having itself cleared all the transcripts, the ODNI informed the committee in March 2019 that the 10 transcripts containing testimony from members of the Trump administration were being withheld. The reason for this delay was that the Executive Office of the President wanted to check the transcripts for possible conflict with executive privilege.

The ODNI attributed this request to standard protocol, but, in a letter to the ODNI, Schiff maintained unequivocally that the recorded testimonies were solely the property of the Intelligence Committee. His position was that, since the transcripts had been cleared by intelligence agencies, any further review by the White House would be an unwarranted intrusion into the committee’s investigations. It wasn’t until May 4, 2020 that ODNI Acting Director Richard Grenell released the 10 transcripts after the White House withdrew its request

I’ve been unable to find clear guidelines as to which branches of government outside of intelligence agencies would have been entitled to advance review of the transcripts, and it’s possible that Schiff is justified in blaming the White House for the 11-month delay. At the same time, I also haven’t seen any compelling explanations as to why the Henry transcript couldn’t have been released in March 2019, since it was never requested for review by the White House.

It’s worth noting that a search on The New York Times website for coverage of the above transcript yielded no results and that a broader internet search revealed coverage that was almost exclusively from right-wing news outlets.

The Prosecution of General Flynn

The second major development that merits reporting relates to the prosecution of General Michael Flynn, President-elect Trump’s incoming National Security Advisor during the post-election transition period in late 2016 and early 2017. While not directly related to alleged Russian hacking or social media manipulation, the Flynn affair is worth exploring, since it raises issues associated with the FBI’s practices during the Russiagate investigations.

Background

In one of several phone calls, Flynn spoke with Sergey Kislyak, the Russian ambassador to the United States on December 29, 2016. Unbeknownst to Flynn, the call was intercepted by the NSA, presumably in keeping with its surveillance of Kislyak.  Among the requests Flynn made on the call was that Russia refrain from retaliating to sanctions that the Obama administration had just imposed for alleged interference in the 2016 presidential elections. On January 24, 2017 Flynn was interviewed by the FBI and ultimately charged with lying to the agent who questioned him. However, a plea bargain was reached on December 1, 2017 based on Flynn’s commitment to cooperate with the FBI and admit that he had lied during the interview.

In June 2019 Flynn changed his legal team and withdrew his guilty plea, citing what he considered inadequate prior legal counseling and also improper FBI conduct based on new information. In February 2020 Attorney General Willian Barr appointed a lawyer to review Flynn’s case, and on May 7 the Department of Justice filed a motion to dismiss the case altogether based in part on the claim that Flynn’s lying was immaterial to any “legitimate FBI investigative basis,” especially given that the FBI had earlier recommended that the investigation be closed. As of this addendum, the case is on hold pending response from the case’s presiding judge Emmet Sullivan.

Flynn’s “Unmasking”

Following the interception of the 2016 phone call, one of the first controversies to arise regarded the justification for the disclosure or, as it came to be known, “unmasking” of Flynn’s identity as a participant in the call. “Masking” occurs when, for example, a national security agency surveilles a foreign terrorist and intercepts email correspondence between the terrorist and an American citizen. To avoid possibly unwarranted incrimination of the citizen, the agency will normally not disclose the citizen’s identity when it issues reports about this communication to other branches of government. However, if any of the recipients (normally other security agencies but in some cases political leadership) of the report feel they have compelling reasons to know the citizen’s identity, they can request that the citizen be “unmasked.” If the reporting security agency agrees with the applicant’s rationale, it will comply with the request.

The issues surrounding Flynn’s possible unmasking through this process are too complicated to address fully in this paper, but the controversy began when Flynn’s identity as a party to Kislyak’s phone call was revealed to the public on January 20, 2017 in a Washington Post article by David Ignatius, who cited a senior U.S. government official as the source. The controversy only intensified on May 13, 2020 when Richard Grenell released a document listing some 27 names of officials—including Vice President Biden and the U.S. Ambassador to the United Nations, Samantha Powers—who had requested Flynn’s unmasking between November 2016 and January 2017. Grenell’s cover letter indicated that he could not confirm whether these officials actually had been granted their requests, and it has been pointed out that, given their timing, at least some of the requests may have been related to issues unrelated to Flynn’s phone call with Kislyak.

In any case, among the arguments made to justify disclosing Flynn’s identity are, first, that he was obviously colluding with Russia, an adversary, to undermine pre-existing U.S. policy and, second, that he was in violation of the Logan Act prohibiting unauthorized private citizens from negotiating with foreign powers regarding disputed matters.

Among opposing arguments are that, first, as a transition team member, Flynn was not out of line contacting a foreign leader, especially to defuse a potentially explosive situation affecting the incoming administration; second, that his position as incoming security advisor pre-empted his status as a private citizen; and, third, that the Logan Act has never been used as the basis for a prosecution.

Flynn’s Interrogation and FBI Best Practices

In the wake of newly disclosed information, questions about FBI practices throughout its investigation and the prosecution of Flynn are, if anything, even more controversial. In the days following the DOJ’s motion to drop the case, The New York Times coverage of this issue was largely limited to emphasizing Flynn’s character flaws and citing a variety of legal experts who condemned the DOJ’s decision. Links to some of the Times’ articles during this period can be found in Patrick Lawrence’s May 11 article in Consortium News.

On May 15, however, the Times finally saw fit to publish an article acknowledging possible overreach in the FBI’s prosecution of Flynn and addressed the following developments:

  • In 2016, FBI Director Comey took it upon himself to send agents directly to interrogate Flynn despite unresolved deliberations at the time being conducted by acting Attorney General Sally Yates as to whether the White House legal team should be consulted first. Comey’s action apparently angered Yates, and Comey later acknowledged that he probably wouldn’t have taken his action under normal circumstances. Citing legal experts, however, the Times indicated that this lapse was not sufficient to invalidate the case against Flynn.
  • On April 29, 2020 U.S. District Court Judge Emmet G. Sullivan unsealed eleven pages of FBI emails and handwritten notes that raised troubling questions about how the FBI planned to conduct Flynn’s interview. Given that the FBI was already in possession of the transcripts of the phone call between Flynn and Kislyak, the unsealed notes show some ambivalence within the FBI as to its most defensible approach in this matter. The notes’ key statements, presumed to be by Bill Priestap, then assistant director of the FBI’s Counterintelligence Division, were,  “What’s our goal, truth/admission or get him to lie so we can prosecute him or get him fired?…We regularly show subjects evidence with the goal of getting them to admit their wrongdoing.” As it turned out, the FBI decided to take what critics consider the low road and “get him to lie” by withholding the transcripts from him. In addition, the FBI discouraged Flynn from bringing White House attorneys to the meeting, and, contrary to standard practice, Flynn was not alerted prior to questioning that lying about the phone calls would be a prosecutable crime.

While acknowledging flaws in the FBI’s conduct, the Times indicated that, based on testimony from legal experts and former law enforcement officials, the FBI had complied sufficiently with the rules surrounding voluntary interviews and that it was standard practice for the FBI to test subjects accused of telling lies and wait to see what they would say.

By having withheld the above-cited unsealed documents, the prosecutor assigned to Flynn’s case violated protocol required by the presiding judge to disclose evidence that could be useful for the defense. These documents were only shared with Flynn’s defense team after Attorney General Barr appointed an outside prosecutor to investigate the situation. The Times indicated that, despite this violation, some former law officials disagreed that the notes would have sufficed to exonerate Flynn.

Much stronger criticism of the FBI’s conduct, however, comes from Coleen Rowley, a retired FBI special agent who was named one of Time Magazine’s persons of the year in 2002 because of her exposure of the FBI’s pre-9/11 failures. In a May 18, 2020 article in Consortium News, she draws from her own long-standing experience with the FBI to contrast the agency’s conduct in the Flynn case with the protocol emphasized in the earliest days of her FBI training.

In her account, Flynn was asked to have a “friendly chat” on January 4, 2017 in which he was told that he would not need a lawyer present. Rowley underscores that the intent of the applicable Title 18 US Code 1001 relative to FBI interrogations is that, to encourage honest responses to questions, suspects should be cautioned in advance not to lie. She adds that lying to the FBI in itself would almost never be prosecuted, simply because most suspects will at least bend the truth if not outright lie if only to avoid embarrassment.

Another FBI policy violation that Rowley brought up was the way the interview was recorded. Unlike most state and local law enforcement authorities, the FBI does not make use of audio-recorded transcripts. Instead, it relies on a form (FD-302) to be filled out by questioners giving an account of the conversation that can be used in court. While this form has been criticized by defense lawyers as inviting abuse, Rowley emphasizes that, to ensure the highest possible accuracy, agents are trained to limit themselves to verbatim transcripts free from editing by supervisors, especially those not present at the interview.

It turns out that this protocol was violated after FBI Agent Peter Strzok conducted the interview, and agent Joe Pientka took notes. As reported by Rowley, text messages show that Strzok and his FBI colleague and paramour, Lisa Page, who was not present at the meeting, edited the 302 form following the interview. It’s also worth mentioning that Strzok, who is virulently anti-Russian, was later fired for texting inflammatory messages about President Trump.

Rowley also notes that, based on her experience, an FBI agent’s court testimony as to what a defendant said is considered more useful to the prosecution than simply a recorded interview simply because in the event of conflicting testimony, the jury would be more likely to believe the FBI agent. She also added that, had Strzok and Pientka asked for Flynn’s consent to be tape recorded, he would have been immediately alerted that the interview was far from a “friendly” discussion regarding counter-intelligence about Russia. While Rowley makes it clear that she is not “a fan” of Flynn, she adds that “wrong is wrong.”

A final note relating to FBI protocol in Flynn’s prosecution was that, while, in its article, The New York Times acknowledged that Flynn’s lawyers advised him to plead guilty because of concern over the consequences of doing otherwise, it did not mention that the FBI threatened to prosecute his son if Flynn didn’t cooperate.

This paper is of course in no position to weigh in legally as to whether the DOJ’s motion to drop the Flynn case was justified, and there is certainly a substantial community of legal authorities who strongly believe it was not. At the same time, it appears that both the FBI’s conduct in the Flynn matter and the House Intelligence Committee’s handling of the Henry transcript only add to questions about the overall integrity of the Russiagate investigations.

Social Media Manipulation during the 2016 Election

A third development worth reporting is that, as of March 16, 2020, the Department of Justice dropped all charges against Concord Management, the one defendant that actually asked for its day in court after Mueller indicted 13 people and three companies associated with the IRA for manipulation of social media during the 2016 presidential election. In brief, the basis for the ruling was that the case promoted “neither the interests of justice nor the nation’s security.” Two of the stated reasons for this ruling, however, were that Concord a) had been “eager and aggressive in using the judicial system to gather information about how the United States detects and prevents foreign election interference” and b) as a foreign entity, had “no exposure to meaningful punishment in the event of conviction.” As reported by The New York Times, “department officials denied that the decision to drop the charges was intended to dismantle Mr. Mueller’s work, noting that prosecutors are still pursuing charges against the 13 Russians and the Internet Research Agency.”

Several issues surrounding the above ruling come to mind. First, neither the dismissal motion nor The New York Times article mention that, in a June 2019 hearing related to Concord, the presiding judge ruled that there was no legally admissible evidence to support Mueller’s charges against Concord. Second, an indictment seems hardly valid if it prohibits the defendant from standard due process because of anticipated national security issues. Third, the rationale that a defendant is immune from punishment only adds to the belief that the indictment was issued because it was assumed that the trial would never take place.

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