Thursday, November 28, 2019

The Moyer/Clinesmith IMs And Who Got Paid So Much

Yesterday a bit of controversey arose with regard to an exchange of IMs between two now disgraced and former FBI lawyers: Sally Moyer (Attorney 1) and Kevin Clinesmith (Attorney 2). The subject of this IM exchange was raised by IG Horowitz in an OIG report dated June 2018: A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election. For reference purposes the subject of the IM exchange occurs in Chapter Twelve of the report "TEXT MESSAGES, INSTANT MESSAGES, USE OF PERSONAL EMAIL, AND ALLEGED IMPROPER DISCLOSURES OF
NON-PUBLIC INFORMATION", Section C. "FBI Attorney 2 Instant Messages". The Table of Contents lists Section C. as beginning on p. 419, however it may be easier to use the pagination of the entire PDF report document, according to which the relevant IM exchange is discussed beginning on p. 448.

In the OIG report the focus with regard to this IM exchange is with the politically charged and anti-Trump nature of the comments, in the course of which Clinesmith uses the now well known phrase: "Viva le resistance.” However, in our discussion was focused on a different topic that is referenced in the IM exchange: the amount of money an unnamed person was paid while working for the Trump campaign. Thus, for our purposes, here is the relevant passage from the report (I've inserted the surnames for ease of reading):

The third exchange we identified was on November 22, 2016. Clinesmith sent an instant message to Moyer commenting on the amount of money the subject of an FBI investigation had been paid while working on the Trump campaign. Moyer responded, “Is it making you rethink your commitment to the Trump administration?” Clinesmith replied, “Hell no.” and then added, “Viva le resistance.” Moyer responded that Trump was “going to eliminate all of our pensions in order to pay for people like” the person discussed in the instant message exchange, and Moyer and Clinesmith then began a discussion of federal pension and retirement issues.

The question, then, is: Who is this person who was apparently paid a considerable sum of money "while working on the Trump campaign"?

Commenter Mike Sylwester suggested that the person in question was Carter Page, and that the IM commentary between Clinesmith and Moyer arose from the FBI becoming aware in the course of preparing the FISA on Page that Page was a highly paid CIA asset. In that context, the two FBI lawyers were expressing surprise at the amount of money the CIA had paid Page.

I countered that Paul Manafort, as campaign manager (for a time), seemed a more likely candidate to have been paid large amounts by the Trump campaign. I also maintained that the CIA would likely never 1) identify an asset to the FBI except in dire circumstances, 2) would never identify the size of asset payments. To do either of the above would be extraordinarily amateurish tradecraft and would lead to the names of CIA assets being bandied about among nitwit FBI lawyers with absolutely no need to know about such matters.

In addition, there are two other factors that militate against Carter Page as the person in question:

Carter Page acted as an FBI asset in a Russian case that ended up in court in New York. The CIA would never want a highly paid asset to be outed in that way over what, from their perspective, would be a nickel-dime case.
Carter Page, IMO, didn't act like a highly paid asset during the campaign. To cite one example, he declined an invitation from Madeleine Albright to speak, while attending a conference of international bigwigs in Cambridge. If Page were a highly paid CIA asset that would be exactly the type of opportunity for advancing himself in influential international circles that the CIA would expect him to cultivate.

This morning commenter Anonymous supported Mike Sylwester's view by pointing out that Page has never voiced any animus toward Stefan Halper, that Halper was apparently paid by the CIA through the Office of Net Assessment (ONA), and that therefore maybe Halper was a CIA "paymaster" who distributed payments to assets such as Page. Anonymous also pointed out that Manafort seems to have worked as campaign manager gratis. (This leads to other issues. I have long wondered, despite reported explanations, how Manafort was connected to the Trump campaign. Lefty commentators have long speculated that "Russia" was paying Manafort to manage Trump's campaign. The entire Ukrainian angle, however, opens up other avenues of explanation.)

While the reasons I give above are, I believe, sufficient for rejecting Carter Page as the person in question, I would also reject generally the notion that Halper would be used by the CIA as a "paymaster" for a highly valued asset. The primary reason would be that the CIA would reject as terrible tradecraft the identification of one asset to another as an asset. Instead, there are far more secure means of funneling payments to assets--payments for contractual services, etc.

After reviewing the matter, I strongly suspect that the person in question is actually Michael Flynn. Here are my reasons.

First, we can be reasonably certain that the person in question was one of the "four Americans" whom disgraced former FBI Director Comey identified in Congressional testimony as the subjects of the FBI's enterprise CI investigation, Crossfire Hurricane. Those "four Americans" are Carter Page, George Papadopoulos, Paul Manafort, and Michael Flynn. Thus, states that the person in question was "the subject of an FBI investigation."

Second, a further reason to narrow the identification down to one of the "four Americans" is that Clinesmith describes the person as having received large payments "while working on the Trump campaign." Here, I jumped to a conclusion in suggesting Manafort, thinking that this meant that the person was paid by the Trump campaign. That supposition, I now believe, was unwarranted. Clinesmith says no more than that the person received large payments while working for the Trump campaign, which leaves open the possibility that the person received payments from outside sources. That leaves all four Americans as possibilities--including Manafort, who may still have been receiving money from Oleg Deripaska or various Ukrainian oligarchs.

Third, and tellingly, Moyer appears to identify the person as someone who will soon be named to an important position in the new Trump administration--one that could command a significant salary:

Moyer responded that Trump was “going to eliminate all of our pensions in order to pay for people like” the person discussed in the instant message exchange, ...

That eliminates three of the "four Americans," because by that time, November 22, 2016, the only one of the four who was in the running for a post of any sort in the Trump administration was Michael Flynn.

The question then becomes, Did Michael Flynn receive large payments of any sort "while working on the Trump campaign"? Of course, that begs the question as to Flynn's exact relationship with the campaign--was he "working on" the campaign, or simply associated with it? I think we can ignore that in considering the IMs, because Moyer and Clinesmith would not have been making fine distinctions--they were making a different point.

The NYT has the answer for us in an article dated March 10, 2017--Michael Flynn Was Paid to Represent Turkey’s Interests During Trump Campaign. I have always believed that Flynn displayed startlingly poor judgment, given that he was actively seeking a top position in what he hoped would be a Trump administration.

WASHINGTON — The candidate he was advising last fall was running on a platform of America First. The client he was working for last fall was paying him more than $500,000 to put Turkey first. 
Michael T. Flynn, who went from the campaign trail to the White House as President Trump’s first national security adviser, filed papers this week acknowledging that he worked as a foreign agent last year representing the interests of the Turkish government in a dispute with the United States. 
His surprising admission, coming more than four months after the election, raised further questions about the rise and fall of a presidential confidant who was forced to resign after 24 days in office for withholding the full story of his communications with Russia’s ambassador. Even now, out of government and out of favor, Mr. Flynn and his contact with foreign figures presented a new headache for a White House eager to move on. 
Mr. Flynn, a retired Army lieutenant general, registered as a lobbyist last year but did not file papers with the Justice Department registering as a foreign agent, providing a fuller understanding of his role, until Tuesday. While he did not work directly for the Turkish government, the firm that hired him, Inovo, is owned by a Turkish-American businessman with links to leaders in Ankara and asked him to work on an issue important to the government. 
The White House said that Mr. Trump did not know that Mr. Flynn was acting as a foreign agent when Mr. Trump appointed him national security adviser, a position that gave him access to classified meetings and materials. But a person briefed on the matter, who insisted on anonymity to describe private conversations, said Mr. Flynn’s lawyer contacted a lawyer for Mr. Trump’s transition team before the inauguration to ask whether Mr. Flynn should register given his work for Inovo. 
The transition lawyer offered no advice, saying it was up to Mr. Flynn. After the inauguration, the person said, Mr. Flynn and his lawyer each raised it again with a White House lawyer, only to be told once more it was up to him. Mr. Flynn had no comment on Friday. His lawyer wrote the Justice Department that Mr. Flynn decided to register retroactively “to eliminate any potential doubt.”


  1. Replies
    1. My fault for not thinking this through yesterday. This whole business of what Carter Page is up to, though, does seem strange.

  2. This raises the question of how Clinesmith and Moyer knew by November 22, 2016, how much money Flynn had earned from his Turkish client.

    1. That one's no mystery. He wrote that op-ed shortly before the election. Since he was the subject of an investigation the FBI would have picked up on that and used national security letters (NSLs, the CI version of admin subpoenas) to obtain the information. Most likely. Other possibilities, of course.

  3. The NYT article is tendentious in its assertion that an American lobbyist for a foreign entity is not putting "America first".

    On the contrary, it's more likely that such a lobbyist is endeavoring to develop some win-win arrangement for the advantage of both the USA and the foreign entity.

    This concept is fundamental. The NYT's reflexive dismissal of that concept in this article's first paragraph is a good example of how the NYT has become more and more tendentious since Trump was elected.

    1. Undoubtedly tendentious, and intentionally so. Still, a guy like Flynn who was openly and even notoriously ("lock her up") bucking for a top national security job should have been smart enough to avoid appearances of that sort.

    2. Tendentious, you say? The NYT has been part and parcel a partisan smear merchant for decades. Their blatancy is so obvious the casual reader might naturally knee-jerk to conclusions opposite the NYT's assertions, from instinct.

      The "America first" critique you cite is straight out of Alinsky's rules. Is any further explanation of the NYT's approach required...

    3. NYT being,practically speaking, a Bolshevik Party organ it isn't possible for them to construe any economic activity other than state benevolence as capitalist malevolence.
      On the otherhand I personally do not beleive in win-win situations. Sooner or later somebady bags the marbles and takes them home.

  4. It's a bit of a challenge thinking through all these different verbal nuggets, given how much commentary (hearsay, rumor, and contemporaneous information) is woven through official reports and media reporting. I was having trouble piecing through the cited IMs as the dates jumped around--immaterial as the dates were to spelling out the unethical and unprofessional conduct.

    I was actually struck by the incoherence of Clinesmith's rationalization of his conduct as quoted verbatim in the OIG report. The verbal tics were indicia of a guilty mindset, having been queried to explain his conduct.

  5. Replies
    1. Cassander: "Could this have been Flynn? Hasn't there been speculation that there was a FISA on Flynn as well?"

      Credit where credit is due.

  6. For what it's worth, failing to register as a foreign agent, ie foregn lobbyist, was just a fine only enforced crime that occurred soo often and much that it was considered a non-crime.

    I could easily see that both Flynn, his representatives, and Trump and his representatives would not have thought twice about this.

    Ya see, until Trump, obscure crap is was that, pedestrian, not worth anyone's effort, but when you are trying to have a coup without arms, you make the de facto non-crime a real crime, precedent be damned.

    1. The official position of the DoJ was that FARA should be enforced not by prosecution but by encouragement--remind people to register.

    2. That's why even now, FARA is only used as a criminal predicate where a criminal predicate is needed for some other purpose--not as a standalone prosecutable violation.

    3. In this case, FARA was a handy flipper-pickerupper… Nail them on a FARA offense, then give them an opportunity to make their life easier by flipping on the big fish. (Winky, winky…)

  7. Think of it this way ...

    In Texas all traffic violations, save for speeding and opem container, are arrestable offenses to the state. These are then afforded the full constitutional protections accorded to everyone.

    However, the extreme vast majority of traffic offenses, moving and non-moving, result in a ticket, a promise to appear before said, local court.

    De facto, Texas has made a subset of arrestable law into non-arrestable law.

    All the you you can still be handcuffed and brought to a magistrate forthwith no matter what.

    This makes such things a driver or officer moods, feelings, etc morr importat than the transgression itself.

    The same has happened to President Trump.

    1. Copy editor!

      "All the while, you can still be handcuffed..."

      "This makes such things as driver ..."

      "... etc more important ..."

    2. No matter what, Happy Thanksgiving, Go Cowboys, peace out.

  8. Manafort’s name comes up. Few seem to recall what was going on when he was brought in for one discrete task: To manage the delegates to the RNC nomination convention. Ted Cruz was pulling fancy tricks and there was fear he could grab even some supposedly committed Trump delegates. As I recall Manafort was known for having done similar work for Ford, Reagan and others. PDJT made him overall campaign manager at that time. Lewandowski was out - he had been a very good grassroots manager but something different was needed for this new phase in the campaign.

    This is all from memory. Sometimes Fawlty….

    Happy Thanksgiving, Mark and all… Glad I found your interesting blog...

    1. Even with Manafort, the crime was mundane to the point that the FBI refused to prosecute... until ... Trump.

      Get it? Taking down a Presidential campaign and then a presidency was goal #1.

  9. Yes, thanks Bebe, and Happy Thanksgiving to all readers and commenters.

  10. This scandal should cause several reforms.

    One such reform would be the reduction of the importance of FARA negligence in the justifications of FISA warrants.

    In the case of Flynn, he owned a lobbying business that publicly represented foreign entities. I am not aware of any evidence that his representation of the Turkish client in question was essentially secret.

    Rather, his client was a Turkish businessman, not the Turkish Government. In this situation, Flynn's decision not to register according to FARA was reasonable.

    Flynn's decision might be challenged under FARA, but his decision should not be considered as key evidence justifying a FISA warrant against him.

    This consideration must be spelled out in the FISA regulations. If a suspect's decision to not register under FARA can be explained as a reasonable decision or as mere negligence, then the decision should not be presented as a major justification for a FISA warrant.

    The FARA and FISA regulations should be amended so that criminal prosecution requires concrete evidence of criminal intent.

    1. I think you've hit on a key point. That's exactly what I was referring to above when I described how FARA is used--I believe--as the required criminal predicate under FISA, even when the FARA matter may not have any bearing on the type of agency for a foreign power that FISA is concerned with. I'm very much aware of that issue because while I was still working I attempted to do exactly that, but was turned down--even though in that case the FARA violation had a direct bearing on the large issue of agency for a foreign power in intelligence matters. As you say, there is no indication that that was the case at all in Flynn's case, and so I have to regard it as a serious abuse.