The Kill Shot Against Gen. Flynn was Not Russia, it was Iran

RussiaGate was concocted. RussiaGate was globally choreographed. But it was never about Russia, the real covert truth and story is Iran.

Lee Smith has confirmed what I knew in my gut to be true. Smith authored titled The Plot Against the President. I read it and Smith was gracious enough to come on my radio show to discuss the book, which you must read. Congressman Devin Nunes knew in his gut the RussiaGate story did not compute either.

A huge high five to Nunes and Smith and on with the story. It is a long one. Once you sit back and read it all, the clue, tips and indicators begin to fall into place. But we must go back several years for context, patterns and the cunningness of politicians and powerplayers.

1. Remember the first set of WikiLeaks cables where it was determined that Hillary had her staff collect as much oppo-research as possible on her adversaries and foreign dignitaries such that she had to go on an apology tour after the cables were published?

2. Remember the scandal that surrounded Sharyl Attkisson and the computer intrusion(s) she experienced during the Obama administration that she is still fighting legally? She too wrote a book titled Stonewalled telling that story.

3. Remember the journalists that collaborated with Edward Snowden, one being Barton Gellman? By the way I have zero use for what Snowden did but there is an interesting part of the story that Gellman tells in The Atlantic magazine. He too was a victim of major computer intrusions perhaps more significant than that of Sharyl Attkisson.

4. Remember when President Obama had to apologize to German Chancellor Merkel and and French President Hollande for surveilling their phones?

5. Remember when Eric Holder had to admit he issued subpoenas for journalists phone and email records?

6. Remember when the Obama administration ‘scooped-up’ the communications between members of Congress and Israeli leaders during the Iran nuclear deal talks?

7. Remember when CIA Director, John Brennan spied on Senator Dianne Feinstein staffers working the on the torture reports, lied about it and then had to admit it?

8. Remember Operation Cassandra that was shut down completely by the Obama White House? The Former DEA Special Agent on this operation and I have become friends in the last couple of years. This was a global investigation into Hezbollah, narcotics and used cars. (This too included Bruce Ohr)

Okay, so the rest of the story. It is a big one but it holds all the truths. Again, a HUGE hat tip to Lee Smith and Devin Nunes.

*** It started in 2009, took of in a big way in 2012 and Oman was the back channel.

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Barack Obama warned his successor against hiring Michael Flynn. It was Nov. 10, 2016, just two days after Donald Trump upset Hillary Clinton to become the 45th president of the United States. Trump told aide Hope Hicks that he was bewildered by the president’s warning. Of all the important things Obama could have discussed with him, the outgoing commander in chief wanted to talk about Michael Flynn.

The question of why Obama was so focused on Flynn is especially revealing now. The Department of Justice recently filed to withdraw charges against the retired three-star general for making false statements to the FBI in a Jan. 24, 2017, interview regarding a phone call with a Russian diplomat. The circumstances surrounding the call and subsequent FBI interview have given rise to a vast conspiracy theory that was weaponized to imprison a decorated war hero and a strategic thinker whose battlefield innovations saved countless American lives. There is no evidence that Flynn “colluded” with Russia, and the evidence that Flynn did not make false statements to the FBI has been buried by the bureau, including current Director Christopher Wray.

So if the Obama administration wasn’t alarmed by Flynn’s nonexistent ties to Russia, why was he Obama’s No. 1 target? Why were officials from the previous administration intercepting his phone calls with the Russian ambassador?

The answer is that Obama saw Flynn as a signal threat to his legacy, which was rooted in his July 2015 nuclear agreement with Iran—the Joint Comprehensive Plan of Action (JCPOA). Flynn had said long before he signed on with the Trump campaign that it was a catastrophe to realign American interests with those of a terror state. And now that the candidate he’d advised was the new president-elect, Flynn was in a position to help undo the deal. To stop Flynn, the outgoing White House ran the same offense it used to sell the Iran deal—they smeared Flynn through the press as an agent of a foreign power, spied on him, and leaked classified intercepts of his conversations to reliable echo chamber allies.

In March 2017, after seeing evidence of the Obama administration’s surveillance of Trump associates, Congressman Devin Nunes said it had nothing to do with Russia or the FBI’s ongoing Russia investigation, or similar Russia probes conducted by congressional committees. Nunes’ contention was difficult to make sense of at the time. Wasn’t everything about Russia and whether or not there was, as Congressman Adam Schiff said, more than circumstantial evidence of collusion?

In fact, as Trump prepared to take office after his 2016 upset victory, the Obama White House was focused on the Middle East. “Russia collusion” was the narrative that Hillary Clinton operatives seeded in the media and fed to the FBI to obtain a warrant to spy on the Trump campaign. After the election, the Obama team took it over and used it to hobble the incoming administration.

That Obama has publicly criticized the Justice Department’s decision to withdraw its case against the retired general shows how personal the anti-Flynn campaign still is for the former president. In leaking his supposedly off-hand comments to Michael Isikoff, a journalist whose work was central in pushing the Trump-Russia collusion conspiracy theory, Obama was effectively taking credit for pushing the larger anti-Trump operation that grew out of the anti-Flynn campaign. While the Russia collusion story was a handy instrument for many to advance all manner of personal and political interests, for Obama the purpose of Russiagate was simple and direct: to protect the Iran deal, and secure his legacy.

Obama and his foreign policy team were hardly the only people in Washington who had their knives out for Michael Flynn. Nearly everyone did, especially the FBI. As former director of the Defense Intelligence Agency, the Pentagon’s spy service, and a career intelligence officer, Flynn knew how and where to find the documentary evidence of the FBI’s illegal spying operation buried in the agency’s classified files—and the FBI had reason to be terrified of the new president’s anger.

The United States Intelligence Community (USIC) as a whole was against the former spy chief, who was promising to conduct a Beltway-wide audit that would force each of the agencies to justify their missions. Flynn told friends and colleagues he was going to make the entire senior intelligence service hand in their resignations and then detail why their work was vital to national security. Flynn knew the USIC well enough to know that thousands of higher-level bureaucrats wouldn’t make the cut.

Flynn had enemies at the very top of the intelligence bureaucracy. In 2014, he’d been fired as DIA head. Under oath in February of that year, he told the truth to a Senate committee—ISIS was not, as the president had said, a “JV team.” They were a serious threat to American citizens and interests and were getting stronger. Former Director of National Intelligence James Clapper and Undersecretary of Defense for Intelligence Michael Vickers then summoned Flynn to the Pentagon and told him he was done.

“Flynn’s warnings that extremists were regrouping and on the rise were inconvenient to an administration that didn’t want to hear any bad news,” says former DIA analyst Oubai Shahbandar. “Flynn’s prophetic warnings would play out exactly as he’d warned shortly after he was fired.”

Flynn’s firing appeared to be an end to one of the most remarkable careers in recent American intelligence history. He made his name during the Bush administration’s wars in Iraq and Afghanistan, where soldiers in the field desperately needed intelligence, often collected by other combat units. But there was a clog in the pipeline—the Beltway’s intelligence bureaucracy, which had a stranglehold over the distribution of intelligence.

Flynn described the problem in a 2010 article titled “Fixing Intel: A Blueprint for Making Intelligence Relevant in Afghanistan,” co-written with current Deputy National Security Adviser Matt Pottinger. “Moving up through levels of hierarchy,” they wrote, “is normally a journey into greater degrees of cluelessness.” Their solution was to cut Washington out of the process: Americans in uniform in Iraq and Afghanistan needed that information to accomplish their mission.

“What made Flynn revolutionary is that he got people out in the field,” says Shahbandar, who served in Iraq under Flynn in 2007-08 and in Afghanistan in 2010-11. “It wasn’t just enough to have intelligence, you needed to understand where it was coming from and what it meant. For instance, if you thought that insurgents were going to take over a village, the first people who would know what was going would be the villagers. So Flynn made sure we knew the environment, the culture, the people.”

Influential senior officers like Gens. David Petraeus and Stanley McChrystal credited Flynn for collecting the intelligence that helped defeat al-Qaida in Iraq in 2007. In 2012, he was named DIA chief. The next year he secured access for a team of DIA analysts to scour through the documents that had been captured during the 2011 operation to kill Osama bin Laden.

“The bin Laden database was unorganized,” says a former senior DIA official. “There had been very little work on it since it was first captured. The CIA had done machine word searches to identify immediate threats, but they didn’t study it for future trends or strategic insight.” Flynn arranged for a team from United States Central Command, based in Tampa, Florida, to come up to Washington. The subject of their investigation was a potentially sensitive one. “We were looking for ties between al-Qaida and Iran,” says Michael Pregent, a former Army intelligence officer who was working on the bin Laden documents as a contractor. “We’re arguing with everyone—NSA, whoever else—telling them what we wanted and they kept saying ‘there’s nothing there, we already went through it.’ The CIA and others were looking for immediate threats. We said ‘we’re DIA, we’re all-source analysts and we want everything to get a full picture.’”

Just as the CENTCOM team was preparing for their trip to Northern Virginia, they were shut down. “Everything was set,” says Pregent. “we had our hotel reservations, a team of translators, and access to all of the drives at the National Media Exploitation Center. Then I get a call in the middle of one of the NCAA basketball tournament games from the guy who was running our team. He said that [CIA Director John] Brennan and [National Security Adviser Susan] Rice pulled the plug.”

The administration was, it appears, clearing space for Obama to implement his big foreign policy idea—the Iran nuclear deal. Another aide, Ben Rhodes, had said in 2013 that the Iran Deal was the White House’s key second-term initiative. Evidence that Tehran was coordinating with a terror group that had slaughtered thousands in Manhattan and at the Pentagon would make it harder to convince American lawmakers of the wisdom in legitimizing Iran’s nuclear weapons program.

What was the information about al-Qaida’s ties to Iran that Flynn wanted his CENTCOM team to get out? According to published news reports, the bin Laden database included “letters about Iran’s role, influence, and acknowledgment of enabling al-Qaida operatives to pass through Iran as long as al-Qaida did its dirty work against the Americans in Iraq and Afghanistan.” One of those letters showed that “Al-Qaeda was working on chemical and biological weapons in Iran.”

After decades of anti-Iran campaigning, Republicans were expected to oppose Obama’s deal, but didn’t have the numbers to stop it in the Senate. What concerned the White House therefore was their own party. Senior Democrats on Capitol Hill were uneasy about the deal, as were large numbers of Jewish voters—more than half of whom identify as Democrats.

Jewish organizations offered two major objections to the deal: First, the outlines of Obama’s nuclear deal suggested that it might legalize a bomb pointed at the Jewish state. Second, in striking an agreement with Iran, the White House might normalize relations with a regime that embodies anti-Semitism.

In return, Obama confronted Iran Deal skeptics in his own party with a hard choice—either support the deal, or you’re out. There would be no room in the Democratic Party for principled disagreement over the keystone of Obama’s foreign policy legacy. Opponents were portrayed in harsh, uncompromising terms: They had been bought off, or were warmongers, or Israel-firsters.

In a meeting of Senate Democrats in early 2015, Obama had his eye on New Jersey Sen. Robert Menendez when he spoke of pressures “from donors and others” to reject the deal. Menendez was offended. He said he’d “worked for more than 20 years to curb Iran’s nuclear ambitions and had always been focused on the long-term implications.”

The way that Obama framed it, it was only the money laid out against the initiative by lobbyists and donors that kept Americans from seeing how excellent his deal truly was. “If people are engaged, eventually the political system responds,” Obama told Jon Stewart. “Despite the money, despite the lobbyists, it still responds.”

Obama kept talking about money, donors, and lobbyists as if a secret cabal was tossing bags of dark foreign cash around Washington. What he was referring to was the American Israel Public Affairs Committee (AIPAC)—an American organization run by American Jews to promote America’s alliance with its most important Middle East ally.

AIPAC’s leadership trusted Obama to do the right thing. They described him as a great friend of Israel and assured themselves he wouldn’t put the Jewish state in danger by giving the bomb to a regime that regularly called for its destruction. But Obama didn’t trust AIPAC or the capacity of the American people to recognize the excellence of the Iran deal, which is why he kept the deal and its contents hidden from public view for as long as possible.

In 2012, the administration began secret negotiations with Iran. At the same time, the administration called off a multi-agency task force targeting the billion-dollar criminal enterprise run by Iran’s Lebanese ally, Hezbollah. The administration told Congress that the nuclear deal would not grant Iran access to the U.S. financial system, but a 2018 Senate report showed how the Obama White House lied to the public and was secretly trying to grant Iran that access. The Obama administration had misled Congress about secret deals it made regarding verification procedures, and then secretly shipped $1.7 billion in cash for Iran to distribute to its terror proxies.

The administration’s promise that the deal would prevent Iran from ever getting a bomb was validated by their communications infrastructure: The messaging campaign brought together friendly journalists, newly minted arms-control experts, social media stars, and progressive advocacy groups like the regime-friendly National Iranian American Council (NIAC). As Obama’s top national security communications lieutenant Ben Rhodes told The New York Times: “They were saying things that validated what we had given them to say.”

One strategy employed by Rhodes’ echo chamber assets was to engage critics in esoteric debates over details of the Iran deal. For instance, how many centrifuges would Iranian reactors be allowed to spin? Had Iran’s supreme leader declared a genuine fatwa against nuclear weapons? Was this or that nuclear site a military facility?

Among the handful of honest reporters covering the deal, most didn’t have enough information, time, or energy to continue fighting a wall of static noise. And that was the point of Obama’s media campaign—to drown out, smear, and shut down opponents and even skeptics. Thus, echo chamber allies purposefully obscured the core issue. The nature of the agreement was made plain in its “sunset clauses.” The fact that parts of the deal restricting Iran’s activities were due to expire beginning in 2020 until all restrictions were gone and the regime’s nuclear program was legal, showed that it was a phony deal. Obama was simply bribing the Iranians with hundreds of billions of dollars in sanctions relief and hundreds of billions more in investment to refrain from building a bomb until he was safely gone from the White House, when the Iranian bomb would become someone else’s problem. The Obama team thought that even the Israelis wouldn’t dream of touching Iran’s nuclear program so long as Washington vouchsafed the deal. They called Israeli Prime Minister Benjamin Netanyahu “chickenshit.”

If Obama was just kicking the can down the road, why did he expend so much effort to get the deal? How was it central to his legacy if it was never actually intended to stop Iran from getting the bomb? Because it was his instrument to secure an even more ambitious objective—to reorder the strategic architecture of the Middle East.

Obama did not hide his larger goal. He told a biographer, New Yorker editor David Remnick, that he was establishing a geopolitical equilibrium “between Sunni, or predominantly Sunni, Gulf states and Iran.” According to The Washington Post’s David Ignatius, another writer Obama used as a public messaging instrument, realignment was a “great strategic opportunity” for a “a new regional framework that accommodates the security needs of Iranians, Saudis, Israelis, Russians and Americans.”

The catch to Obama’s newly inclusive “balancing” framework was that upgrading relations with Iran would necessarily come at the expense of traditional partners targeted by Iran—like Saudi Arabia and, most importantly, Israel. Obama never said that part out loud, but the logic isn’t hard to follow: Elevating your enemy to the same level as your ally means that your enemy is no longer your enemy, and your ally is no longer your ally.

Obama demonstrated to Jerusalem the gravity of his intentions every time an administration official leaked reports of Israeli raids on Hezbollah and other Iranian allies in Syria and Lebanon. That put the Israelis on the defensive, and also showed the Iranians that Obama could and would bring Israel to heel. Therefore, Tehran should trust him.

“Obama wants this as the centerpiece of his legacy,” an American diplomat told the press in Vienna where Secretary of State John Kerry and his team came to terms with the Islamic Republic. “He sees himself as a transformative president in the Reagan mold,” said a former Obama adviser, “who leaves his stamp on America and the world for decades to come.”

For all of Obama’s talk of money and lobbies, he was himself creating a large international constituency for the deal. Sanctions on Iran had kept foreign companies out of the country for decades, but the promise of new markets for major industries, like energy and automotive, had European and Asian industry chomping at the bit. The American president not only promised to relieve sanctions, but also to help drum up business by assuring the world that it was safe to invest in Iran. John Kerry was keen to turn the State Department into Iran’s Chamber of Commerce.

Obama’s talk of the pro-Israel lobby only got louder as his negotiators came closer to striking the deal. He was talking about the Jews, and to them. If they didn’t back the deal, the sewers would spill over with traditional anti-Semitic conceits about Jewish money and influence, dual loyalties, Jews leveraging their home country on behalf of their co-religionists, and fomenting war. This wasn’t a fringe White nationalist figure, but a popular two-term Democrat. John Kerry said it outright: If Congress failed to pass the deal, it would put Israel at risk of being “more isolated and more blamed.” There was no alternative to the deal, said Kerry, except war.

Jewish community leaders complained about how the debate over the deal was being framed. “If you are a critic of the deal, you’re for war,” a senior official at a pro-Israel organization told me at the time. “The implication is that if it looks like the Jewish community is responsible for Congress voting down the deal, it will look like the Jewish community is leading us off to another war in the Middle East.”

Nonetheless, Obama kept hammering away at his chosen messaging. In a speech at American University he argued there are only two choices: The Iran Deal or war. The one government that did not think this is “such a strong deal” was Israel.

If the smear campaign targeting Iran Deal opponents as rich, dual-loyalist, right-wing warmongers was the public face of Obama’s push for the deal, there was an even less savory component hidden within the advanced technology of the U.S. Intelligence Community: The administration was spying on its domestic opponents, American legislators, and pro-Israel activists. Noah Pollak—formerly head of the Emergency Committee for Israel, a nonprofit organization that opposed the nuclear agreement with Iran—says, “I was warned that my conversations with senior Israeli officials were possibly being monitored.”

Speaking to me for my 2019 book The Plot Against the President, Pollak said that “the administration did things that seemed incontrovertibly to be responses to information gathered by listening to those conversations.” He continued: “At first we thought these were coincidences and we were being paranoid. Surely none of us are that important. Eventually it simply became our working assumption that we were being spied on via the Israeli officials we were in contact with.”

A 2015 Wall Street Journal story provided details of the administration’s domestic espionage operation. “The National Security Agency’s targeting of Israeli leaders and officials also swept up the contents of some of their private conversations with U.S. lawmakers and American-Jewish groups,” explained writers Adam Entous and Danny Yadron. “That raised fears—an ‘Oh-s— moment,’ one senior U.S. official said—that the executive branch would be accused of spying on Congress.”

The names of Americans are minimized in transcripts of intercepted foreign communications to protect their privacy. For instance, an American swept up in an intercept might be referred to as a “U.S. Person.” It is not illegal or even necessarily improper for U.S. officials to deminimize, or “unmask,” their identities and find out who “U.S. Person” is, provided there are genuine national security reasons for doing so.

The story the Journal tells is evidence Obama officials knew what they were doing was wrong. In the account shaped by the Obama team, responsibility fell on the shoulders of the National Security Agency, responsible for the bulk of America’s signals intelligence. White House officials “let the NSA decide what to share and what to withhold,” according to the Journal story. “We didn’t say, ‘do it,’” a senior U.S. official said. “We didn’t say, ‘don’t do it.’”

Any use of NSA intercepts to target Jewish organizations and anti-Iran Deal legislators would not be an innocent mistake. Obama aides would know they were abusing surveillance programs ostensibly pointed at Israeli officials if they used them to know which US lawmakers and pro-Israel activists were planning to oppose the deal, what they were saying, and who they were talking to. Indeed, it appears that to get in front of the possibility that their domestic spying operation would be exposed, Obama officials leaked it to friendly reporters in order to shape the story to their advantage: OK, yes, we heard, but only by accident. And in any case, it was the NSA that passed it on to us.

In June 2015, a month before the deal was struck in Vienna, Michael Flynn was on Capitol Hill testifying about Iran and the deeply flawed deal on the table. He described Iran’s destabilizing actions throughout the region, how the regime killed American troops in Iraq and later Afghanistan. He warned about Iran’s ties to North Korea, China, and Russia. Flynn emphasized that Iran’s “stated desire to destroy Israel is very real.” He said Obama’s Iran policy was one of “willful ignorance.”

As the 2016 election cycle approached, a number of Republican candidates solicited his advice—including Ben Carson, Carly Fiorina, and Ted Cruz. In a sense, the retired general chose Trump as much as Trump chose him. At the time, the candidate’s understanding of what he called “the swamp”—a confederation of bureaucrats, elected officials, consultants, and contractors enriching themselves at the expense of the American taxpayer, was mostly theoretical. From Trump Tower in New York City more than 200 miles away, Washington sure looked wasteful. But Flynn had detailed knowledge of how the Beltway worked.

The two hit it off and Flynn traveled with the candidate regularly. He was vetted for the vice presidency, but Trump decided instead on Mike Pence, a congressman from Indiana who could help win both the evangelical and the Midwestern vote. Still, outside of Trump’s own family, Flynn was his closest adviser. The foreign policy initiatives he articulated were the president-elect’s and when he spoke to foreign officials, he was speaking for Trump.

Flynn not only made it clear that he wanted to undo the Iran Deal, he also broadcast his determination to find the documents detailing the secret deals between Obama and Iran, and to publicize them. With Flynn on the march, the outgoing administration was keen to shield the JCPOA. Obama diplomats consulted with their European counterparts and gave the clerical regime more sanctions relief, even after the Senate agreed with a 99 to 0 vote to renew the Iran Sanctions Act. Kerry called his Iranian counterpart to tell him not to worry.

Notably, Russia weighed in on the Obama team’s side. It would be “unforgivable,” according to the Russian Foreign Ministry, if the incoming Trump administration forfeited the JCPOA. The White House agreed to let Russia export more than 100 tons of uranium to Iran—enough to make more than 10 bombs, according to some estimates. “The point was to complicate any effort to tear up the deal,” says a senior U.S. official involved in the fight over the JCPOA. “It gave Iran an insurance policy against Trump.”

By early December 2016, only weeks after Trump’s surprise election, the anti-Flynn campaign was well underway. A December 3, 2016, New York Times article portrayed Flynn as a martinet who brooked no disagreement, and insisted his subordinates corroborate the intelligence assessments he sought. In his worldview, wrote the Times, “America was in a world war against Islamist militants allied with Russia, Cuba, and North Korea.” The piece carried the bylines of Matthew Rosenberg, Mark Mazzetti, and Eric Schmitt, with additional reporting by Adam Goldman and Michael S. Schmidt—reporters who would share in the Times’ 2018 Pulitzer Prize for national reporting on the Russiagate conspiracy theory.

Parts of the Times story were then recycled in a joint statement signed by progressive advocacy groups allied with the Obama White House in the Iran deal fight, like MoveOn.org and J Street, demanding Trump withdraw his appointment of Flynn. Among other concerns, the statement cited Flynn’s work on behalf of Turkish interests and, incongruously, his ostensibly negative views on Muslims, as expressed in his book—as well as his position on Iran.

A one-time USIC lawyer and editor at the national security bureaucracy blog Lawfare, who was destined to become a leading Russiagate conspiracy theorist, highlighted sections from Flynn’s book on social media. “Shocking,” tweeted Susan Hennessey. It had only been a year and a half since the Obama team had steamrolled congress to win the JCPOA and now their communications infrastructure had swung into action again to protect the Iran Deal from the Trump White House.

It was in this early December 2016 period when the Iran deal spying and media operation merged into Russiagate. The structure of the two operations was identical—only some of the variables had changed. Opponents were no longer tagged as Israel-firsters, now they were Putin assets. The message, however, was the same. Opponents are not simply wrongheaded, or mistaken, or even dumb—rather, they are disloyal; agents of a foreign power.

Clandestine spying targeting Flynn began no later than Dec. 2. That day, DNI James Clapper and U.N. Ambassador Samantha Power unmasked Flynn’s name from a classified U.S. intercept of communications between Russian officials. It seems the Obama officials were interested in a Trump Tower meeting Flynn and Jared Kushner held with Russia’s U.S. Ambassador Sergey Kislyak. The envoy then reported his meeting to Moscow, communications that U.S. officials appear to have leaked to Pulitzer Prize-winning Washington Post reporters Greg Miller, Ellen Nakashima, and Adam Entous, who had moved over from The Wall Street Journal.

Leaking information from classified intercepts is a felony. Concerned U.S. officials’ use of the press to illuminate government crimes and abuses is a keystone of the American political process. However, the many times that Flynn’s name was illegally leaked from intercepts during the transition period and the first several weeks of the new administration shows that the classified information passed to journalists was not whistleblowing but was instead an aspect of the political surveillance operation targeting the Trump team.

According to a recently declassified document, there were 39 Obama officials who unmasked Flynn’s identity a total of 53 times. Power led the list with seven unmaskings of Flynn—a small part of her sum total of more than 330 unmaskings between 2015-16, making her, according to former Congressman Trey Gowdy, the “largest unmasker of U.S. persons in our history.”

Power was one of 30 Obama officials who unmasked Flynn between Dec. 14-16. The list includes Clapper, Brennan, FBI Director James Comey and Treasury Secretary Jacob Lew, as well as six other Treasury officials including Patrick Cronin, the director of the Office of Intelligence and Analysis—Treasury’s intelligence shop. It appears they were interested in a Dec. 15 meeting in which Flynn, Kushner, and Steve Bannon hosted the crown prince of the United Arab Emirates, Sheikh Mohammed bin Zayed al-Nahyan.

Obama’s former National Security Adviser Susan Rice also unmasked Flynn for this meeting, though she’s not on the declassified Flynn unmasking list. She said that she was irked Emirati leadership had come to the United States without notifying the Obama White House. Rice’s description of her emotional state may well be accurate, though it doesn’t explain why she requested the identities of presidential transition officials.

But it’s not hard to figure out why she and 30 other Obama officials wanted to know about that meeting. Spying on the Trump team’s conversations with Arab officials would tell them how the next administration’s Middle East policies would affect Obama’s, especially the JCPOA. Seven Treasury officials spying on the same meeting suggests they wanted to know about Trump’s plans for Iran sanctions. Sure, John Kerry told the Iranians not to worry about sanctions, but what could the Obama team do to counter Trump if he was planning to restore them?

On Dec. 22, Flynn spoke with Russian Ambassador Kislyak about the vote scheduled to take place at the United Nations the next day. The Obama team had coaxed Egypt into introducing U.N. Security Council Resolution 2334, holding that Israel was occupying the territories it had taken in the June 1967 war. Israel, according to 2334, was in “flagrant violation” of international law. Under the terms of the resolution, even the Western Wall of the Temple Mount was an illegal Israeli settlement.

President-elect Trump got Egyptian President Abdel-Fattah el-Sissi on the phone on Dec. 22 and convinced him to withdraw the proposal. But the transition team knew someone else would sponsor the resolution. Flynn was speaking with foreign officials from Israel, Egypt, and Senegal—which at the time held one of the rotating positions on the security council. Flynn later told the FBI that he knew the math and at least five countries had to abstain to block the resolution and he didn’t think his calls would affect the final vote. He compared the exercise to a battle drill, to see how quickly he could get foreign officials on the phone.

The FBI knew that Flynn had called Kislyak, too. It’s not clear when the bureau learned of the call but they asked him about it during his pivotal Jan. 24 interview. Flynn said he didn’t try to influence the Russian envoy, but just wanted to know where the Russians stood.

The next day UNSCR 2334 passed 14-0, with Samantha Power casting a vote to abstain, forsaking America’s customary role of blocking anti-Israel actions at the U.N. Obama had reinforced his regional realignment strategy by balancing opposing forces—weakening Israel and empowering the Palestinians. That’s the generous reading. It was the 44th president’s parting shot at America’s most important regional ally.

Within the week, Obama aides were zeroing in on Flynn. The outgoing White House claimed it wanted to know why Putin announced on Dec. 30 that he would refrain from responding to the expulsion of dozens of Russian diplomats. The FBI said it had an answer—the bureau had a record of a phone call between Kislyak and Flynn from the day before Putin made his decision public.

Former FBI Deputy Director Andrew McCabe writes in his 2019 book, The Threat, that he was alerted to the information by an analyst and passed it on to Comey, who told Clapper, who briefed Obama. Comey corroborated McCabe’s account in congressional testimony, while Clapper swore under oath that he did not brief the president.

Clapper may be telling the truth. The unmasking list shows that Obama officials were listening in on Flynn’s conversations in real time. It’s possible Obama didn’t need Clapper to tell him about the call. According to former Deputy Attorney General Sally Yates, Obama knew about the Flynn-Kislyak call no later than Jan. 5, when he was discussing it in an Oval Office meeting. She says Comey was the only other official present—which contradicts Susan Rice’s account. Obama’s former National Security Advisor said she and Vice President Joe Biden were also there.

This week, acting DNI Richard Grenell declassified a previously redacted passage from an email Rice sent to herself on inauguration day 2017 regarding the Jan. 5 meeting. The newly unredacted section showed that Obama was fully read into the anti-Flynn operation.

According to the Rice email, Obama asked if the FBI director was saying that they “should not pass sensitive information related to Russia to Flynn.” Obama knew at the time there was no evidence that Flynn had any untoward relationship with Russia—the FBI had been investigating the allegations for more than four months and found “no derogatory information” on Flynn.

On Jan. 7, the DNI official who gave Obama his daily intelligence briefing requested to have Flynn’s name unmasked, making the information accessible to numerous Obama officials with whom the briefing was shared, and thus expanding the pool of possible sources.

Adam Entous was offered the leak of the Dec. 29 call early on. “I didn’t know what to make of it,” the writer, now at The New Yorker, told a Georgetown audience. “There were divisions within the newsroom. At that point, I’m at The Washington Post. There are divisions about this: Why is it news that Michael Flynn is talking to the Russian ambassador? He should be talking to the Russian ambassador.”

Then the leak was offered to Entous’ Post colleague David Ignatius. “This is something a columnist can do, unlike me as a news reporter,” said Entous. “He was able to just throw this piece of red meat out there.” Indeed, it’s how the Obama team intended to bloody the waters. On Jan. 10, according to Flynn’s lawyer Sidney Powell, Clapper told Ignatius to “take the kill shot on Flynn.” Ignatius published the leak in his Jan. 12 column, describing Flynn’s Dec. 29 conversation with Kislyak. “According to a senior U.S. government official,” wrote Ignatius, “Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials … What did Flynn say, and did it undercut the U.S. sanctions?”

The story ignited the Trump-Russia collusion narrative, which was intended to damage Flynn while disguising the nature and purpose of the campaign. The criminal leak of a classified intercept was evidence that the Obama White House was spying on the transition team, and for the same reason they’d spied on lawmakers and pro-Israel activists—to know the plans of Iran deal opponents.

To conceal their illegal surveillance of the incoming NSA and other Trump officials, Obama aides repurposed Hillary Clinton’s Trump-Russia collusion narrative, which had fed dozens of pre-election news reports and won the FBI a warrant to spy on the Trump campaign. Now the media had the Trump White House on the defensive, identifying likely “points of collusion” everywhere, while covering up Obama’s spying operation.

The outgoing administration caught another break when the transition team made an unforced error. Days after the Ignatius story broke, Vice President Mike Pence said on TV that Flynn had assured him there was no talk of sanctions. Either Pence had misunderstood, or Flynn didn’t explain himself clearly enough. Later Flynn took responsibility for the mix-up. He was sorry he’d put Pence “in a position,” and he “should have said, ‘I don’t know. I can’t recall,’ which is the truth.” Flynn further elaborated on the call with Kislyak: “It wasn’t about sanctions. It was about the 35 guys who were thrown out.” Flynn said that he told the Russian envoy when they come to office, “’We’ll review everything.’ I never said anything such as, ‘We’re going to review sanctions,’ or anything like that.”

There was no promise to relieve sanctions on Russia and tamper with Obama’s policy before Trump came to office, never mind collusion. But the discrepancy between Pence’s statement and the transcript of Flynn’s conversation with Kislyak gave Comey and McCabe a window of opportunity. On Jan. 24, they sent two FBI agents to interview Flynn at the White House. They came back and reported that they didn’t think Flynn lied. That didn’t matter either. The FBI edited the record of the interview.

Meanwhile, Flynn continued to do the job the president had chosen him for. After Iran conducted a ballistic missile test and its Yemeni proxies attacked a Saudi naval ship, he announced in the White House press room: “As of today, we are officially putting Iran on notice.” Former Obama aides fumed: The Trump administration had no choice but to stay in the JCPOA. Then they flipped through the dog-eared pages of the Iran Deal playbook and pushed into the press rumors regarding the loyalties of a combat veteran who served his country in uniform for more than three decades. Had Michael Flynn sold out his country to Russia?

On Feb. 9, Entous finally got his chance to publish the leaked intercept of the Kislyak call. He and Washington Post colleagues Greg Miller and Ellen Nakashima found nine current and former U.S. officials to confirm that Flynn had discussed sanctions with the Russian. It went unremarked that the article provided evidence of yet another leak of Flynn’s name from a classified intercept, and thus proof of a massive spying operation targeting the Trump team.

Trump had been warned. Obama was serious when he told him not to bring on Flynn. The new president’s hand was forced, and the national security adviser left the White House on Feb. 13. Within the year, prosecutors from Robert Mueller’s special counsel investigation threatened to charge Flynn’s son with lobbying violations if he didn’t plead guilty to making false statements to the FBI.

By then, Russiagate was in overdrive—one of the most destructive conspiracy theories in U.S. history was well on its way to poisoning minds around the country. It appeared to cast an even deeper spell on the elite urban classes whose peers in the press and government had fueled it in the name of “resisting” Trump. And yet only a small fraction of those who imagined themselves to have the inside story of the Trump team’s secret collusion with Russia to defeat Clinton understood the origins of the fantasy world they had been engulfed by.

Russiagate was not a hoax, as some conservative journalists call it. Rather, it was a purposeful extension of the Obama administration’s Iran Deal media campaign, and of the secret espionage operation targeting those opposed to Obama’s efforts to realign American interests with those of a terror state that embodies the most corrosive forms of anti-Semitism.

It’s not hard to see why the previous president went after Flynn: The retired general’s determination to undo the Iran Deal was grounded in his own experience in two Middle Eastern theaters of combat, where he saw how Iran murdered Americans and threatened American interests. But why Obama would choose the Islamic Republic as a partner and encourage the tactics typically employed by third-world police states remain a mystery. (reprinted in full from The Tablet)

 

 

 

Pigs Do Fly, This is From the Boston Herald Editorial Board

I kept asking, wondering and hoping that someone that manifested Schiff’s lies or the operation(s) of the FBI and the DoJ during this nightmare to come forward and admit it all was a concocted charade. I never expected it to come from the Boston Herald Editorial Board Staff. Yes, pigs DO fly. And a hat tip for manning up.

Sure would be fun to talk to a member or two of the Board and ask them what was the defining moment for them and what do they know that is not out just yet in the public domain…further….will the Boston Herald write yet another op-ed with each new release of transcripts or documents?

It would be fun for President Trump to invite the Editorial Board to the White House for a beer summit…right? RIGHT?

Boston Herald declares bankruptcy, agrees to be sold

BH: House Intelligence Committee Chairman Adam Schiff has been feeding the American people misinformation for years. He used his position — replete with access to information and people in the know — to distribute wild accounts of Russian collusion with the Trump campaign.

The effect was to frighten and alarm millions of Americans, sowing division between neighbors, toxifying our discourse and raising anxieties.

The Trump administration spent time and resources fighting off the fallacy that cursed them since day one and deprived the American people of a president who could devote his time and energy to the policies they had elected him to enact.

Just a year ago, Adam Schiff was on CNN, MSNBC, ABC, Fox News — anyone who would have him — talking about Trump/Russia collusion “in plain sight.”

Even after the Mueller report clearly indicated that there was no provable collusion or coordination between the Russian government and the Trump campaign, Schiff continued to propagate the lie.

Chris Wallace of Fox News pressed Schiff on the claims, playing the congressman a highlight reel of his assertions of collusion.

Schiff shot back, “What more clear intent to collude could you have than the Russians offering dirt on Hillary Clinton as part of what was described as an effort to help Mr. Trump in the campaign and Don Jr. saying if it’s what you say, I would love it?”

“Intent to collude.”

That after years sounding the alarm about “damning evidence” of collusion with Putin that was “more than circumstantial.” This scandal was “beyond Watergate,” Schiff, privy to all of the sensitive intelligence, told us.

We found out this week that Schiff always knew there was no evidence of collusion. By day he would interview former Obama administration officials including Director of National Intelligence James Clapper, Ambassador to the UN Samantha Power, national security adviser Susan Rice and Attorney General Loretta Lynch, who would tell him there was nothing, and by night he’d jump on a newscast assuring Americans that he’d seen evidence of something.

But there was nothing.

The canard Schiff continued to promulgate was supercharged, though, by the media, who went wall to wall with their coverage. Relics from Watergate were dragged out onto “Breaking News” sets and we were told how serious the matter was.

Hysterical anti-Trump media personalities took to social media to scold anyone who doubted the Russia conspiracy, lecturing us about putting “country over party.”

The coordination between Schiff and the media was pernicious.

As Lee Smith wrote in the New York Post, “The tragic fact is that once-prestigious press organizations, including CNN as well as MSNBC, the New York Times and the Washington Post, weren’t fooled by the collusion hoax. They were an essential part of it.”

Adam Schiff is a vile actor. Democrats must follow their own mantra and put their country over party and eject the snake in their midst.

There are bipartisan endeavors — like infrastructure legislation, economic recovery and the battle against the pandemic — that have undoubtedly been hindered by the malevolence of the congressman from California who abused his power by weaponizing his position in order to bring down a duly-elected president.

We will continue to bear the poisoned fruit from his actions for years and it will happen again in a different form unless there is a reckoning, once and for all.

Congress Attempting to Issue New Code of Conduct Rules for Judges

This has been building for quite a while and was noticeable if anyone watched any Senate confirmation hearings for judge candidate nominees. Senator Sheldon Whitehouse, (D-RI) is one of the loudest drivers of this change.

House Judiciary Committee ranking member Rep. Jim Jordan, R-Ohio, is launching an investigation into a draft advisory opinion by the Judicial Conference’s Committee on Codes of Conduct which, if approved, would prohibit federal judges from being members of the right-leaning Federalist Society or left-wing American Constitution Society (ACS).

Jordan’s concern with the draft advisory opinion is that membership in these groups had previously been allowed, and while under the draft opinion this would no longer be allowed, membership in other groups including the American Bar Association (ABA) would continue to be permitted. The committee said their concern with the Federalist Society and ACS is that membership could lead to people questioning a judge’s impartiality when it comes to issues on which those groups have taken positions.

Federalist Society Introductory Meeting | Announce ...

Humm, the judges can participate in events held by those organizations, they just cant be active members? It was not too long ago that Senator Dianne Feinstein also had a huge issue with Judge Amy Barrett’s fidelity to Catholic theology. Other senators joining with Senator Feinstein were Senator Durbin (D-IL) and Senator Hirono (D-HI).

It is interesting that Trump Judge nominee and confirmed, Judge Ralph Erickson of the U.S. Court of Appeals for the Eighth Circuit, who chairs the committee behind the draft opinion. That opinion to change the code of conduct is found here. (important read)

Simply put, Judge Erickson has enlisted a panel to challenge the Federalist Society.

The proposed rules change is the latest salvo in a campaign to cast the Federalist Society as too political, and thereby politically risky, for judiciary participation. The Wall Street Journal editorial board labeled the proposal “judicial political mischief masked in high sounding rhetoric,” a step that is spurring a backlash among “judges and others” who should denounce it as “undermining legal education in America and perhaps violating the First Amendment right of association.”

Conservative activists put it more bluntly, calling the rules change a transparent attempt to neuter the Federalist Society. The motivation is obvious, these activists say, after the Senate has confirmed a record number of Trump-appointed judges, many of whom are Federalist Society members or have participated in the group’s events.

“This rules change was probably instigated and driven by people who are upset with the transformation that is taking place in the federal judiciary, and since they are on the left, they are accustomed to addressing problems by trying to censor the other side,” a longtime Federalist Society member told RealClearPolitics. “And that’s exactly what this is — an act of censorship.”

Carrie Severino, the chief counsel and policy director for the conservative Judicial Crisis Network, said the new rule would create a different standard for judges than they have been held to in the past and severely limit their civic participation.

“Obviously there are situations that do require recusal – if someone is involved in a political campaign or directly advocating for a political position,” she said. “But simply being in a group that believes in certain principles — they are misconstruing the Federalist Society by calling it a group that takes political positions.” Read more here.

 

 

 

Pensacola NAS Shooter Tied to AQAP

Department of Justice
Office of Public Affairs

Monday, May 18, 2020

Attorney General William P. Barr and FBI Director Christopher Wray Announce Significant Developments in the Investigation of the Naval Air Station Pensacola Shooting

Saudi gunman and at least 3 victims reported dead at NAS ... photo

Today, Attorney General William P. Barr and FBI Director Christopher Wray announced significant developments in the FBI’s investigation of the December 6, 2019 shooting at Naval Air Station Pensacola that killed three U.S. sailors and severely wounded eight other Americans.  On January 13, 2020, Attorney General Barr announced that the shooting was an act of terrorism and publicly asked Apple to help the FBI access the locked contents of two iPhones belonging to the deceased terrorist Mohammed Saeed Alshamrani.  The company declined to do so.

Attorney General Barr announced that the FBI recently succeeded in unlocking the phones of Alshamrani, who had attempted to destroy them while launching his attack.  The phones contained important, previously-unknown information that definitively established Alshamrani’s significant ties to Al Qaeda in the Arabian Peninsula (AQAP), not only before the attack, but before he even arrived in the United States.  The FBI now has a clearer understanding of Alshamrani’s associations and activities in the years, months, and days leading up to the attack.

“Thanks to the great work of the FBI – and no thanks to Apple – we were able to unlock Alshamrani’s phones,” said Attorney General Barr.  “The trove of information found on these phones has proven to be invaluable to this ongoing investigation and critical to the security of the American people.  However, if not for our FBI’s ingenuity, some luck, and hours upon hours of time and resources, this information would have remained undiscovered.  The bottom line: our national security cannot remain in the hands of big corporations who put dollars over lawful access and public safety.  The time has come for a legislative solution.”

“I could not be prouder of the relentless dedication of the men and women at the FBI who worked for months under difficult conditions to access these devices,” said Director Wray.  “Their skill and persistence, and the sustained investigative efforts by FBI Jacksonville, the FBI’s Counterterrorism Division, and our many other federal, state, and local partners, have been nothing short of extraordinary in this case.  As we continue to seek answers around the December 6th terrorist attack that killed three American service members and wounded others, I want their families, and all Americans, to know that protecting the United States from those who seek to do us harm remains the FBI’s foremost priority.  Our work against the threat of terrorism never rests.”

Investigators sought and received court authorization to search the contents of Alshamrani’s iPhones within one day of the December 6, 2019 terrorist attack.  Unable to unlock the phones because of their security features, and having exhausted all readily available options, the FBI approached Apple for its assistance in early January 2020.  The company declined to assist.  FBI technical experts succeeded in accessing the phones’ contents over four months after the attack, revealing highly-significant evidence, including:

  • Alshamrani and his AQAP associates communicated using end-to-end encrypted apps, with warrant-proof encryption, deliberately in order to evade law enforcement.
  • Alshamrani’s preparations for terror began years ago.  He had been radicalized by 2015, and having connected and associated with AQAP operatives, joined the Royal Saudi Air Force in order to carry out a “special operation.”
  • In the months before the December 6, 2019 attack, while in the United States, Alshamrani had specific conversations with overseas AQAP associates about plans and tactics.  In fact, he was communicating with AQAP right up until the attack, and conferred with his associates until the night before he undertook the murders.

The evidence derived from Alshamrani’s unlocked phones has already proven useful in protecting the American people.  In particular, a counterterrorism operation targeting AQAP operative Abdullah al-Maliki, one of Alshamrani’s overseas associates, was recently conducted in Yemen.

Exhibit 1

Exhibit 2

Exhibit 3

Response by DoD Secretary Esper:

Today, the Department of Justice and the Federal Bureau of Investigation announced additional findings about the shooting on Dec. 6, 2019 at Naval Air Station Pensacola. This was a tragic day for our military and our deepest condolences are still with the friends and families of Ensign Joshua Watson, Airman Mohammed Haitham, Airman Cameron Walters, and with the eight others wounded in this terrorist attack.

The new information provided by Director Wray and Attorney General Barr underscores the threats to our nation posed by al-Qa’ida and its affiliates and highlights the necessity of the security measures we take every day to protect the American people, our interests and our friends – as well as those that defend our nation.

”The Department of Defense is incredibly grateful for the diligent work by the FBI team investigating this horrific attack that took the lives of three American patriots,” said Secretary of Defense Dr. Mark. Esper. ”Based on the FBI findings, and in addition to already executed protective measures, the Department will take further prudent and effective measures to safeguard our people.”

In response to this terrorist attack, the Department of Defense took immediate action, ordering a stop to all International Military Student operational training at U.S. installations and directing a review of all vetting and security procedures. In January Secretary Esper went to Pensacola and met with Navy leadership, and with flight training students and first responders to hear first-hand the accounts of those on the scene. Within two weeks of the tragedy, the Secretary approved an extensive list of findings and recommendations and directed immediate implementation across all the military Services. These include additional measures for background checks and new physical security procedures, specifically:

  • New restrictions on IMS possession and use of firearms and ammunition.
  • New control measures for limiting IMS access to military installations and U.S. government facilities.
  • New standards for training and education on detecting and reporting insider threats.
  • Establishment of new vetting procedures that include capabilities for continuous monitoring of IMS while enrolled in U.S.-based training programs.
  • Acknowledgement of willingness to abide by these standards, committing to full compliance with all U.S. laws on-and off-duty.

We continue to work with the FBI as they uncover more information pertaining to the terrorist, his links with al-Qa’ida, and the methods he used to conceal this from us. At the same time, we continue to review our procedures to identify any additional vetting and security measures we can adopt.

Despite this tragic event, our military partnerships and the international military student program remain strong and are a vital component of our National Defense. Security cooperation directly contributes to U.S. national security and foreign policy objectives by helping allies and partners improve their defense capabilities and enhance their ability to participate in missions alongside U.S. forces. We will continue to work closely with them to counter the threats of international terrorism and protect our freedom.

Mexico Comes Demanding Documents of Fast and Furious, Now?

MEXICO CITY, May 11 (Reuters) – Mexico’s foreign minister on Monday posted a video online detailing a diplomatic note to the U.S. embassy requesting answers about a gun-running sting under the Obama presidency, keeping a spotlight on the controversial issue.

Live: Trump threatens tariffs on Mexico over immigration ...

In the video, Foreign Minister Marcelo Ebrard cited former U.S. Attorney General Eric Holder as saying Mexican authorities knew about the 2009-2011 scheme known as ‘Fast and Furious.’

Representatives for Holder did not immediately reply to a request for comment. Nor did the U.S. embassy in Mexico City.

It was the first time Ebrard or President Andres Manuel Lopez Obrador had made direct reference by name to a key U.S. figure connected to the program since the issue resurfaced in Mexico a week ago.

In a bid to curb cross-border gun smuggling, the U.S. scheme allowed people to illegally buy arms in the United States and take them to Mexico so that the weapons could be tracked and lead law enforcement officials to crime bosses. Some of those guns were subsequently blamed for the fatal shootings of both Mexican and U.S. citizens.

The current Mexican government has zeroed in on the program to highlight possible corruption under previous Mexican administrations amid a debate over how much they knew about the U.S. operation.

Holder, who served as U.S. Attorney General under Barack Obama between 2009 and 2015, had previously issued a statement via the U.S. embassy in Mexico contending that “Mexican authorities” knew about the program, Ebrard said.

“The (Mexican) government requests that it be provided with all the information available regarding the ‘Fast and Furious’ operation,” Ebrard said in the video posted on Twitter.

Lopez Obrador first brought up the gun-running program last Monday when answering questions about Genaro Garcia Luna, a former Mexican security minister who was arrested in the United States in December on drug trafficking offenses.

Garcia Luna served under former President Felipe Calderon from 2006-12, spearheading a crackdown on drug cartels. Lopez Obrador has used his arrest to argue that corruption was rampant in past Mexican governments.

Some critics of Lopez Obrador contend that he has done U.S. President Donald Trump a favor by raising questions about Garcia Luna as the U.S president prepares to fight a November election against Joe Biden, who was vice president from 2009 to 2017 under Obama.

Lopez Obrador’s supporters say he has focused on the issue to illustrate hypocrisy among his domestic adversaries.

Calderon, a longstanding political rival of Lopez Obrador, said last week there was no agreement between Mexico and the United States to permit illicit entry of arms.

‘Fast and Furious’ followed earlier sting operations that began under Obama’s predecessor, George W. Bush. (Reporting by Drazen Jorgic and Sharay Angulo; Editing by Dave Graham and Jane Wardell)

****  Judge rules DOJ must share documents from Fast and Furious ... photo

Americans paying attention to the unresolved Obama era scandals would like to know all the truth too. So as a refresher, here is the last status of the investigation.

May, 2016:

JS: Last week, Judge Amy Berman Jackson issued an important opinion in Oversight Committee v. Lynch, the subpoena enforcement litigation related to the House Oversight and Government Reform Committee’s investigation into Operation Fast and Furious. Media outlets generally reported it as a win for Congress and loss for the Executive. In an acute sense, that is true — Judge Jackson ordered the Justice Department to produce sensitive materials that reflect deliberations about how to respond to congressional requests and media inquiries. However, the opinion is a much more complicated ruling that reinforces some longstanding executive branch legal arguments that Congress has perennially disputed. In the longer term, this opinion may actually be a win for the executive branch, despite being ordered to hand over documents the President designated as privileged.

Background

The case arose from DOJ’s refusal to turn over to Congress a number of disputed documents pursuant to President Obama’s formal assertion of executive privilege. The underlying congressional investigation sought information related to failed gun trafficking investigations led by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that came to be collectively referred to as Operation Fast and Furious. Starting during the fall of 2009, ATF agents in Arizona began setting up a series of sting operations targeting gunrunners who were moving large quantities of firearms across the Mexico border. But, inadequate surveillance, technology failures, and poor judgment led ATF to allow many of the guns it was using in the stings to “walk.” A number of those lost weapons ended up in the hands of drug cartels and showed up at various crime scenes on both sides of the US-Mexico border, including at the scene of the murder of Border Patrol Agent Brian Terry in December 2010. Just last week, within days of Judge Jackson’s opinion, news outlets reported that one of the guns at issue in Operation Fast and Furious was found at El Chapo’s hideout.

However, the document dispute has very little to do with the allegations about ATF’s problematic investigative tactics. With the exception of a few documents related to wiretaps, grand jury materials, and confidential information in open investigative files, Congress received almost all of the underlying documents related to Operation Fast and Furious.

Instead, the most significant dispute in the case relates to Congress’s allegation that DOJ officials lied to Sen. Chuck Grassley (R-Iowa) in February 2011. Congress then aggressively sought all documents related to the Department’s communications and deliberations about how to respond to the congressional investigation and media inquiries, for before and long after the alleged misrepresentation to Grassley. The administration eventually accommodated the Committee by providing access to all the documents that had led to providing Grassley inaccurate information. Those documents demonstrated good faith but a lack of diligence by responsible officials in both Phoenix and Washington, DC. However, Congress forged ahead with a sprawling meta-investigation that raised significant institutional concerns within the Executive about the collapse of “separation” in the separation of powers. (At that time, I was Associate Counsel to the President and was involved in White House negotiations with the Oversight Committee over various congressional requests related to Operation Fast and Furious.) The document stalemate served as the primary basis for a House vote of contempt of Congress against then-Attorney General Eric Holder in June 2012. That same month, the House authorized this civil enforcement lawsuit.

Short-Term Loss for the Executive

At the top line, last week Judge Jackson ordered DOJ to produce all the documents it had designated as protected by the deliberative process privilege. In the absence of an appellate reversal, the Oversight Committee will obtain its prize: some 5,342 unique documents reflecting executive branch deliberations about how to respond to a hostile congressional committee and how to respond to media requests. To be sure, the Committee will seek to make hay of those deliberations and any impolitic remarks they contain.

DOJ had argued the production of documents revealing deliberations about how to respond to Congress would chill fulsome responses to Congress. The court quotes DOJ’s longstanding position that disclosure “would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch’s ability to respond independently and effectively to congressional oversight.” I have previously argued that branch independence is critical in response to oversight requests.

Judge Jackson’s order relies on her holding that Congress’s oversight need outweighs DOJ’s confidentiality interest on the facts in this record. Specifically, she suggests the need for deliberations to be confidential was substantially weakened by prior subject matter disclosures by the public report of DOJ’s Office of Inspector General (OIG). She finds “whatever incremental harm that could flow from providing the Committee with the records that have already been publicly disclosed is outweighed by the unchallenged need for the material.”

Ironically, DOJ has long relied on the OIG report to bolster its argument that Congress could obtain the information elsewhere, which is one of the factors to be considered in the leading DC Circuit opinion on privilege, In re Sealed Case (Espy).

The court’s analysis seems to suggest that an executive branch entity must challenge the legitimacy of Congress’s investigative interests at the categorical subject-matter level rather than at the incremental request level. By characterizing Congress’s interest as an “unchallenged need,” Judge Jackson uses DOJ’s ready concession that Congress had legitimate oversight interests in problematic gun trafficking investigations against it. DOJ didn’t challenge Congress’s investigation as illegitimate, but it certainly argued that Congress has almost no legitimate interest in peering into DOJ’s process of drafting letters to Congress. At the individual request level, DOJ vigorously challenges Congress’s need. The opinion reflects a court that appears to have prudential concerns about assigning relative values to inherently political determinations about the needs and interests of coordinate branches.

However, oversight disputes do not play out at the categorical level. They play out in the give-and-take of phone calls, letter requests, subpoenas, media availabilities, depositions, and transcribed interviews. Further, unlike judicial proceedings, there are no referees, protective orders, evidentiary rules, or motions to quash during that investigative process. By the time an interbranch dispute reaches the courts, all of those fights have happened and positions have hardened. A categorical approach is a meat axe where a scalpel is needed.

That is why I took some issue with the court’s prior ruling that that the matter is justiciable. To me, justiciability requires judicious review of the reasonableness of requests, the chilling effect of a particular disclosure, and the incremental nature of harms. So, as I wrote in October 2013:

If a court is going to resolve an important dispute between Congress and the President, wouldn’t congressional need, withholding grounds, and accommodation alternatives be the essential inquiry? … The notion that the underlying facts about controversial ATF investigative tactics have come to light and remedied should bear on analysis of Congress’s need to intrude on Executive Branch deliberations.

Likely of little solace to the executive branch, Judge Jackson cabined her rationale to “the specific and unique circumstances of this case.” In addition, the court specifically noted that its “ruling is not predicated on a finding that the withholding was intended to cloak wrongdoing on the part of government officials or that the withholding itself was improper.”

Longer-Term Win for the Executive

Of more comfort to DOJ, Judge Jackson has now ruled in favor of the Executive Branch, and against Congress, on the two most contested issues that are likely to have enduring precedential effect.

First, as I have discussed previously, the court’s August 2014 ruling held the Executive Branch may assert a deliberative process privilege in response to a congressional subpoena. Congress had argued that the deliberative process privilege was grounded in common law alone and therefore inapplicable to a separation-of-powers dispute. In Judge Jackson’s prior opinion, “the Court reject[ed] the Committee’s suggestion that the only privilege the executive can invoke in response to a subpoena is the Presidential communications privilege.”

Second, in last week’s opinion, Judge Jackson specifically held that the deliberative process privilege also applies to deliberations about how to respond to media inquiries or congressional requests. Congress had argued that the privilege is confined exclusively to policy deliberations. Rejecting that argument, the opinion notes “the Court holds that documents withheld by defendant that reveal the Department’s internal deliberations about how to respond to press and Congressional inquiries into Operation Fast and Furious are protected by the deliberative process privilege.”

As a practical matter that protection dissolved in the face of the court’s prior disclosure and incremental harm analysis. But the holding is a significant doctrinal win for the Executive branch. Many DOJ attorneys will have an impulse to appeal this ruling in order to shield the ordered disclosures, but perhaps the executive branch’s two substantial legal victories will caution against it.