Sunday, May 17, 2020

Minimization, Tech Cuts, Unmasking--A Guide

What follows is a thoroughly revised version of my post from yesterday: The Flynn Case: Unmasking, Pen Registers, Tech Cuts. Although I call this a "guide," it's actually tailored specifically to the Flynn case because that's the context in which most of the public discussion of "unmasking" has arisen.


There continues to be an enormous amount of confusion swirling around the leak of Michael Flynn's telephone conversation with Russian Ambassador Kislyak to David Ignatius of the Washington Post. A lot of people have been twisting themselves into conceptual pretzels. All sorts of theories to explain why Flynn was or, as it happens, was not "unmasked" have been advanced--few of which show any understanding or even awareness of FISA procedures and rules. I'll state the bottom line first: With regard to the Flynn/KIslyak conversation itself, "unmasking" is basically irrelevant because there was no need to unmask Flynn's identity in that conversation--for reasons that will be explained. On the other hand, the massive and quite unprecedented amount of "unmasking" that went on in the Obama administration does point to a very serious problem. What it indicates is that high Obama officials, usually often political appointees, were combing through intelligence reports in an attempt to find derogatory information on political opponents. 

To understand "unmasking" it may be helpful to get down to a procedural level. How does that occur, and why? The circumstances in which unmasking is requested by a government official near the top of the food chain would normally be something like this. The official receives an intelligence "product" of some sort in which identifying information regarding a US Person (USPER) is "minimized"--in other words, information in the report is redacted to hide the identity of the USPER because the lower level official who prepared the document judged the USPER's identity to be irrelevant for official government purposes. The higher level official receiving the "product" may disagree--perhaps knowing more about the context of the report--than the lower level preparer. So the official submits a request to unmask the USPER's name. That should be done for an articulable reason, not simply out of curiousity. That's how it's all supposed to work.

The real problem arises when unmasking is not done for articulable official purposes but instead for personal or political reasons--usually as a prelude to leaking the USPER's name to the outside world, which is a crime. A few instances of unmasking by a given official may not appear overly troubling on its face, but when unmasking becomes a pattern of behavior real suspicions can arise that the unmasking official is actively seeking information to leak for political purposes. The suspicion arises because it would be unusual to be second guessing the highly trained preparers of intelligence documents on such a regular basis. That seems to have been the case with Samantha Power. The problem isn't with the unmasking per se so much as with the use that the unmasked information is put to. In the case of Flynn, of course, it was part of an elaborate frame job.

The fact that in administrations prior to the Obama administration unmasking was so rare speaks volumes about the mindset in the Obama administration. However, the difficulty for the investigator of unmasking is to link specific unmaskings to specific leaks by specific individuals. Were you wondering what's taking Durham's investigation so long? If you reflect on the above you'll have some idea. There's a lot of digging involved, and especially with so much activity as we've seen.

As if all this weren't complicated enough, uninformed opinions are regularly advanced to "explain" all this. Dan Bongino and sundance have each came up with what they think is the answer to what should be a non-question: How did the FBI know about Flynn's conversation with Kislyak. It may not surprise you to learn that Bongino and sundance have each came up with different answers. Bongino thinks it came from an illegal use of emergency FISA powers by Obama himself. Sundance thinks it came from a pen register on Flynn's phone.

Me? My answer has always been: it came from a "tech cut". Remember tech cuts? I wrote about them in What does "CR cuts" Mean? 

Cuts? In FBI parlance a FISA order is referred to as "technical coverage". Or, simply, a "tech." E.g., Do we have a tech on so-and-so? Can we get a tech on so-and-so? The typed up summaries of telephone conversations captured in that way are referred to as "tech cuts."

Thus, when Peter Strzok and Lisa Page texted on January 3, 2017, about their concern that James Clapper shouldn't share raw "tech cuts" with the White House, we know what they're talking about:

“[Priestap], like us, is concerned with over sharing. Doesn’t want Clapper giving CR cuts to WH. All political, just shows our hand and potentially makes enemies,” Strzok wrote to FBI lawyer Lisa Page on Jan. 3, 2017 ...

CR means Crossfire Razor--the FBI codename for Michael Flynn. On January 3, 2017, Strzok was saying he and Bill Priestap didn't like James Clapper going to the White House with an FBI "tech cut". Gosh, do you think that was the tech cut of the conversation between Flynn and Kislyak? Yeah, me too.

There's no mystery here at all. None. Moreover, everyone involved would have had clearances far above anything needed to view the tech cuts, it's just that Priestap and Strzok didn't think tech cuts--which are internal documents of the FBI not prepared for external dissemination--should be shared like that.

Neither Bongino's nor sundance's theories make any sense at all. The origin of the transcript can be found in standard FISA coverage of the Russian ambassador--but not of Flynn per se, for whom there was no FISA order.

Now, there are actually additional sources of more information on the Flynn conversation that confirm exactly what I just wrote. Let's start with Andrew McCabe.

Andrew McCabe testified about the Flynn/Kislyak conversation to the House Permanent Committee On Intelligence, on December 19, 2017. As you'll see from his testimonythe FBI produced a tech cut for the conversation. What that fact means is precisely that the FBI got the details of the Flynn/Kislyak conversation off the FISA that targeted the Russian Embassy. You'll also see in the transcript of McCabe's testimony that McCabe says Flynn's name was never masked. Why not? The simple explanation--but I'll also offer the longer version later--is because the FBI's Washington Field Office had a Full Investigation open on Flynn--therefore no masking (more below). Why would that be? Because the Full Investigation--unwarranted as it was--gave the FBI an official reason to leave Flynn's name "unminimized" or, to use the common term, "unmasked." Again, more below.

With regard to sundance's fantasy that the conversation was somehow picked up via a pen register, at least two things need to be pointed out. The first is that the phrase that McCabe uses, "the Agency, who I think had the pen on that response," is easily explained as not pertaining to any pen register at all. While it's true that "pen" is sometimes used as shorthand for "pen register", it can't possibly mean that in this instance. The context alone makes it clear that "pen" does not = pen register here. "The pen on the response" can only mean, the agency that will be writing the response. "The pen register on the response" to a tasking makes no sense at all. The second consideration is simply that, knowing what we now know about how FISA minimization works, and having the assurances of Comey and McCabe that they sent actual "tech cuts" to Clapper and on to the White House (see below), no other explanation than the FISA overhear is needed.

With that lengthy intro, I've pasted in below the relevant part of McCabe's testimony. Appearing with McCabe as his lawyer, by the way, is James A. Baker, General Counsel for the FBI. Baker was basically disgraced former FBI Director James Comey's lawyer for official purposes, and now figures prominently in Durham's investigation. Dem Rep. Eric Swalwell does the questioning.

Note the references in the transcript below to "minimization". That's the more technical term for "masking." It refers to the FISA requirement that the FBI "minimize" or "eliminate" any information picked up on a FISA that isn't pertinent to official FBI business. Flynn's name, of course, was pertinent--or so the person who prepared the tech cut thought. That person wouldn't have known that the Flynn case was totally unpredicated and, therefore, illegal.

Finally, the reason McCabe says that it's a "misnomer" to refer to a "tech cut" as an "intelligence product" is for the same reason that Priestap and Strzok didn't want Clapper sharing tech cuts with the White House--unlike formalized "intelligence products," tech cuts are more in the nature of rough working drafts and aren't intended for dissemination outside the FBI. It's an administrative thing. So:

MR. SWALWELL: One issue that we have had to clear up as well goes to the question 
of the -- whether or not the conversations between Michael and Ambassador Kislyak in late December -- 
MR. McCabe: Yes. 
-- were ever quote "unmasked" and then leaked to the public, and the then Director Comey, in testimony to the committee on March 2, 2016, went into some detail quoting from what he called quote "tech cuts" and ...  
MR. BAKER: 2016, or 2017? 
MR. SWALWELL: I'm sorry, his testimony was on March 2, 2017. 
MR. BAKER: I think you said 2016. 
MR. SWALWELL: But it related to conversations in December of 2016. He [Comey] said specifically about these tech cuts: 'We did not disseminate this take in any finished intelligence, although our people judged it was appropriate for reasons that I hope are obvious to have Mr. [Flynn's] name unmasked." And he was referring to those specific tech cuts. 
"We have received testimony from other senior offcials in the Obama
administration who have said that they themselves never saw any disseminated reporting of those conversations either." 
MR. McCabe: To my recollection, the best of my recollection is that the substance
or [] in finished intelligence products. However, they were shared with a small number of people outside our organization. 
For instance, they came up -- we found them through an effort -- without getting into too long of an explanation -- in an effort to respond to a tasking from []f and so the results of what we found were communicated to the Agency, who I think had the pen on that response. 
MR. BAKER: Excuse me. 
[Discussion off the record] 
MR. BAKER: "SMPs" are standard minimization procedures. 
MR. MCCABE: I'm sorry. I should have said that. The "SMPs" are the
standard minimization procedures that are defined under the FISA Act.
MR. SWALWELL:  Okay, the reason I ask is specific to the investigation of this committee. There has been a prong that emerged as a result of the last parameter that is part of the agreed parameters to the investigation that focuses on possible leaks related to the Intelligence Community assessment, the ICA? 
MR. SWALWELL:  The prong that emerged was an investigation into whether or not there was quote-unquote "improper unmasking" by senior Obama administration officials, and that was premised on the leak of Mr. [Flynn's] name in press reporting, I think beginning in a report by David Ignatius in The Washington Post, and then subsequent reporting. But all of it, this unmasking investigation was premised on what we have learned since, and your testimony is consistent with this, that there was never any intelligence product. 
So no transcript or summary of conversations with Kislyak that were ever masked, and therefore, there were no unmasking requests that could have been made for these nonexistent reports. 
So we just want to make sure that we have for the record a clear as possible understanding of exactly what the product was that was created, how it was disseminated internally or discussed internally, and whether or not there was any unmasking linked to that report? 
If you have anything else to add to that, but that was the reason for why I
was asking the specific line of questioning.
MR. MCCABE: I think your description is accurate. It's probably a misnomer to refer to it [a tech cut] as a product. It wasn't an intelligence product as we use that term. There [] 
I do not believe that that summary was ever masked. I'm also not familiar with any requests that we received to unmask anything. I'm not -- I'm not aware that -- if we got one, it would strike me as unnecessary if nothing was masked.

In addition to the speculation of Bongino and sundance, Andy McCarthy, in his most recent article, states that he no longer believes what I've just described--that Flynn was picked up by the FBI in the course of regular FISA coverage of Kislyak:

"If it were true, there would be a record of Flynn’s unmasking."

The testimony of Comey and McCabe are confirmation directly to the contrary. By stating openly that the Flynn/Kislyak information was embodied in tech cuts, they confirm the origin in a FISA. Sally Yates' Senate testimony is also of interest, because in her testimony Yates tried to explain to Senator Graham about "unmasking" or "minimization"--as discussed in the transcript above. CTH, as usual, gets the significance of Yates' testimony wrong, and unfortunately Yates also is not conversant with the these policies to offer a coherent explanation. Rather, she only understands "minimization" from a practical standpoint--"as a consumer" of intelligence reports. What she says, however, is absolutely true. Here are her exact words, minus the crosstalk with Senator Graham:

Can I try to clarify one point on this "unmasking" thing? ... As a consumer of intelligence, as an example, I would receive intelligence reports from various agencies. Oftentimes the names are already unmasked by the intelligence agency itself. ... But what I was trying to say was, oftentimes we receive intelligence reports where the name of the American citizen is already unmasked, and it's unmasked by the Intel agency because--not based on anybody's request--but because the name of that citizen is essential.

We've already seen why the name of a citizen might be considered "essential," and so be included in a tech cut. But let's go over that in even greater detail. :-(

First of all, "unmasking"--the word we hear from Senators and lawyers and pundits--is actually a term that I was never familiar with while I was working these matters. Rather, we spoke of "minimization", just as McCabe did in his testimony. If you look at any FISA order you'll see that they include page after page of boilerplate "minimization procedures," not "masking procedures." What minimization means is that, say in a tech on a telephone, entire conversations may be "minimized"--deleted--if they're not relevant to the performance of official agency duties. Or, names of USPERs in the coversation may be "minimized"--masked or redacted--if their names aren't relevant in a conversation that may be otherwise relevant. BUT, the names will be included if they are relevant. As in all government functions, there are rules in and guidelines that govern all this. It's a bit like reading an insurance policy, but it's worth it if you want to come to a real understanding of these issues.

So, to the specifics. Below are excerpts from general guidelines on minimization from DNI (pp. 9-10). These correspond to what McCabe refers in his testimony to as "SMPs"--standard minimization procedures. Check it out--I've edited it to limit it to portions that would be clearly relevant to Flynn. Again, bear in mind that James Comey isn't the guy making these decisions--the people actually preparing the tech cuts make the decisions, after being trained in minimization procedures:

Section 6 - Foreign Communications of or Concerning United States Persons 
(b) Dissemination 
A report based on communications of or concerning a United States person may be disseminated ... to a recipient requiring the identity of such person for the performance of official duties but only if at least one of the following criteria is also met: 
(2) the identity of the United States person is necessary to understand foreign intelligence information or assess its importance, e.g., the identity of a senior official in the Executive Branch; 
(3) the communication of information indicates that the United States person may be: 
a. an agent of a foreign power; 
e. acting in collaboration with an intelligence or security service of a foreign power and the United States person has, or has had, access to classified national information or material;

After reading this, is there any doubt in your mind that Flynn's name would NOT have been minimized?

  • He was an incoming senior official in the Executive Branch who had previously held other senior positions in the Executive Branch; 
  • he had a security clearance; 
  • he was under a Full Investigation by the FBI as a possible agent of a foreign power or as acting in collaboration with a foreign power's intel service. 

There's no doubt in my mind that when that tech cut of Flynn's conversation with Kislyak arrived on Comey's desk or Yates' desk, Flynn's name was in it, unminimized. "Unmasking" requests are only made when the USPER name in the tech cut or other intel product has been minimized. Flynn's name was never minimized. Yates was trying to make an important point to cut through all the uninformed nonsense about "unmasking", but unfortunately she herself didn't have a handle on the whole "thing" about minimization.

So when Comey speaks of giving a "tech cut" re Flynn to Clapper, Flynn's name is unminimized. When Clapper recevied the tech cut he didn't need to "unmask" Flynn--not in that instance. Nor did anyone else with whom the tech cut was shared (contrary to Priestap's and Strzok's concerns about sharing internal docs not prepared specifically for dissemination).

McCarthy is wrong to expect unmasking in Flynn's case.

However, that's not the end of the story. We know, in fact, that while there was no unmasking with regard to the Flynn/Kislyak conversation, there was a great deal of unmasking regarding Flynn otherwise. That means that Flynn's name was being "masked" in other official intelligent products in contexts in which Obama officials really wanted to find out the identity of the person involved. A lot of those instances probably had to do with foreign communications or calls by Flynn to the United Nations (a separate issue that I won't go into here). High Obama officials in the closing days of their administration were frantically combing through intelligence reports and materials in search of derogatory information--not only on Flynn but on many other incoming Trump officials. What information was "unmasked" and who used it in illegal leaks is the jigsaw puzzle that Durham is working on--along with so much else.


  1. Thank you for clearing that up! I was confused as to why Flynn's name was being requested for "unmasking" when his name was already available. The key is that the requests by Biden and the WH chief of staff were for other documents not the infamous Flynn/Kislyak conversation.
    Do we know what the exact documents that Biden for example was requesting? Is that still classified? Also- do we know for a fact that Flynn was the target of a Full Investigation or is that still deduction/conjecture?
    Thanks for all you do to educate!

    1. You're welcome. Re the 'umasking' by Biden and others, I have to assume that Durham or some other leak investigator is trying to track those down to try to connect the requests to specific leaks. Obviously we can't know the specifics matters the unmasking requests pertained to at this point, although it may come out later. You can imagine the amount of work involved, since the Flynn unmaskings were a small part of the overall spying.

  2. Some might ask, why were Comey, McCabe, and Yates so open and even eager to explain all this about tech cuts. The reason is because adherence to guidelines pretty much creates a presumption that all was done legally.

    We aren't going to catch these people for failing to dot their i's or cross their t's. They're too smart for that.

    However, adherence to protocol in the unmaskings does at least point to the areas that need to be investigated. The sheer number of unmasking requests is a clue that something else beyond mere curiousity was going on. And that's one of the things that Durham's time and effort has been consumed with.

  3. Connecting dots. If some senior official in the Obama Administration leaked the Flynn/Kislyak telephone conversation to the Washington Post, and used a telephone or internet connection to do so, then NSA has that EC in their archive. All savvy DC insiders know this and consequently they prefer to use intermediaries or, in some instances, a lunch meeting to pass the information. An intermediary can often be identified if you have a good lead on who the leaker is (they tend to use the same trusted person routinely). And many high level lunch conversations are remotely monitored by foreign intelligence services operating in DC. It's very hard to keep secrets in DC. That's why the observation of flop sweat is such a useful tool in LEO investigations.

    1. Right. Thus my caveat about careless leaking. How professional were the Obama people about their leaking. We don't know--some may have been pros, others not so much. The fact that the James Baker at ONA was so open about his communications with David Ignatius is a bit remarkable. Did he leak the Flynn convo? If so, it might be easier to get to the bottom of it. We'll just have to see.

  4. Given the above explanation, why would every Flynn communication not be un-minimized? In other words, given the FI on Flynn, why the need to unmask a Flynn communication?

    1. That's an excellent question. Actually, McCarthy, although he fails to understand the FBI procedures in CI cases like this, gets at that issue. I don't want to go too deeply into this, because for now it doesn't concern us. However, the way in which Flynn's conversations were captured makes a difference with regard to minimization. The FBI's FISA targeting can vary with the nature of the target and can be influenced by what amount to diplomatic agreements. Also, when these communications are targeted by other agencies, they don't necessarily know that the FBI has a full investigation open. I can't speak to internal procedures at those other agencies.

      Nevertheless, what I've written works for the Flynn/Kislyak situation.

    2. Let me expand, just a bit. The tech cuts - and other agency equivalents - are prepared by professional career employees who follow the rules. They're rules told them to minimize Flynn's name in the contexts in which they came across it. The higher up political appointees wouldn't have told those career people, 'Hey, stop doing that!' because that would have expanded the risk of what they were doing re Flynn. So they resorted to unmasking, rather than risk a whistleblower. So you can see what an excellent opportunity the Flynn/Kislyak conversation turned out to be. No 'unmasking' footprints, due to the comparatively unique situation.

  5. MW: I would also like to thank you for taking the trouble to explain minimization/unmasking details and how the Kislyak call could have been intercepted by FBI under the auspices of a FISA on Kislyak. I, like many others, have had a hard time sorting this out, and this detailed exposition helps immensely.

    A few additional thoughts:

    1) I would assume "leakage" to news media is but one reason for unmasking requests by Obama officials. Blackmail material is another (not so much on Flynn, perhaps, but on others in the Trump Transition, or even members of Congress.) The other motive for FBI to scrutinize Flynn 's Kislyak calls is that they were clearly desperate to find something to keep the CR investigation alive, given the WFO had already determined there was no "there" there, and had started the close-out process on the Flynn investigation relative to Russian Collusion, when Strzok and the 7th Floor intervened to keep it open. Since they had no derogatory info on Flynn after several months of investigation, the were desperate to find anything they could to justify an "interview" of Flynn, which could produce a process crime, which is exactly what Mueller did, albeit with the aid of several rounds of creative editing of the interview 302. But Strzok and the rest who were out to get Flynn by any means possible were in such a hurry they failed to create an investigative predicate for the interview, as is pointed out in the DOJ motion to Dismiss -- there was nothing in Flynn's calls with Kislyak that are relevant to whether or not Flynn was working for the Russians in relation to Election Collusion, which was the only investigative matter in CR at the time of Flynn's calls, and the FBI interview; and hence there is no possible legal basis to claim anything Flynn told the agents in the interview about the calls could be "material" -- and hence even if he lied to them on purpose, he cannot be guilty of the 1001 charge. They didn't even add a Logan Act matter to Flynn's open investigation so that can't be the legal predicate for the interview, either.

    2) am I correct in assuming that high level people such as those who requested unmasking of Flynn (or anybody, for that matter) in foreign intercepts (VP, POTUS COS, RICE, and various ambassadors, are unusual, for the reason that these officials are not intel analysts themselves -- who might need the unmasking to better understand the content of the call -- but rather are consumers of intel products produced by the analysts? High level political officials asking for unmaskings doesn't make much sense, especially in large volumes, since their job is to formulate policy, not do the analysis of raw intel. The large volume of unmaskings by high level Obama Officials seems to be a "smoking gun" of nefarious misuse in and of itself.

    3) There is the curious fact mentioned in the Flynn Statement of Offense (IIRC) that FBI intercepted the calls between Flynn (in the Dominican Republic) and a member of the PTT in FL before Flynn talked to Kislyak on the 29th of Dec. The question I have is on what basis did FBI intercept calls between Flynn and a member of the PTT in FL -- neither of them are foreigners, nor a known FISA target. Did they get these calls under the "2 hop rule" of the Kislyak FISA?

    1. This area is somewhat arcane for most people. As you saw, only the two bureau people really had a handle on it--even Sally Yates was pretty fuzzy, as she admitted, although she knew that Senator Graham was off base.

      1) Use of what was gathered would have been limited by the facts--and imagination. The 7th floor was looking for anything that could be used against Flynn, but they couldn't share that intent even with Pientka at WFO (or so it appears at this point). The fact that Trump and Flynn were so clean musta been terribly frustrating.

      2) Exactly. And that's why the large volume of unmaskings is probative in a conspiracy case like this.

      3) I can only speculate here, but I'd look in the direction that the Flynn/PTT situation worked off the Carter Page FISA somehow--since there doesn't appear to be a nexus to Kislyak in terms of the actual phone connections. However, there is a nexus in the content and context, and that may be how it worked. If so, we can get an idea of how useful that Page FISA was. To be sure, we need more detail.

      CAVEAT: The "2 hop rule" is after my time, so I'm not totally clear how it would work in practice. The fact that there were so many unmaskings of Flynn (let alone others) would seem to indicate that "2 hop" wasn't as blanket in application as we often read.

    2. What I mean in #3, Flynn may well have said something to Kislyak like, "I'll get back to you after discussing with others." I can't be sure, but that may have been used to justify going after the Flynn/PTT call--even though there was no real grounds for investigating what was a totally appropriate call in the first place. There could be some investigation going on in that regard, but we're not likely to know any time soon.

    3. The Flynn/PTT call is BEFORE he talks to Kislayak; it was a result of Kislyak texting Flynn on the 28th asking Flynn to call him to discuss the Russian diplomats being PNG'd. Flynn calls PTT in FL with POTUS-elect to get information and instructions on what to communicate to Kislyak, whom he calls later.

      What is unseemly about this is somehow the FBI intercepts a call between two Americans high up in the Trump transition team, without a warrant on either one. If done under the pretext of the two hop rule applied to the Kislyak FISA, they are using a FISA on a foreigner, which has a fewer evidentiary requirements than one on USPERs, to listen in on a call between two USPERs.

      This seems like a reverse-targeting scam, to take advantage of the lower requirements to get a FISA on Kislyak, to intercept the PTT call,
      via Flynn's contact with Kislyak.

      Doing it through the Page FISA seems even more contrived; unlikely Page and Flynn ever talked directly, so at best Flynn would be at least 2 hops from Page, and thus the PTT would be 3 hops out, unless Kislyak had 1 or 2 hop contact with PTT.

      Hard for me to see how this was legitimate.

    4. Trust me on this--it was perfectly legitimate, whichever way it worked. It was done under FISA. There's no doubt about that. What WASN'T legit was opening the investigation on Flynn, which led to his name being unminimized and all the rest of frame job on him.

      Saying it's legit doesn't mean it's right in a "free" society. This was the bipartisan consensus of our elected representatives--who didn't think there should be a public discussion of such matters.

      Here's a good Dyer article from two years ago, in which she specifically goes into the use of the FISA on Russians:

      Again, IMO you're not gonna catch these people violating the rules without a hard-to-disprove excuse. You have to uncover the underlying dishonesty, which is why I keep harking back to "predication." You may not like the way FISA works, I may not like it, but it's the law for now. You need to go back to the reasons they gave for using the FISA law--predicatioon for doing so. That's what Barr has repeatedly said, and he's right. You can bet Durham is doing the same.

    5. When I say "FISA on Russians" I mean specifically Russians communicating with Americans. You can see easily enough why CI people would like this, but OTOH you can see how it could be abused from the example of the Russia Hoax.

    6. This is also why I say that getting sucked into the unmasking rabbit hole re the Flynn case--in addition to being wrong in the specific Kislyak case--distracts from the big picture which is where the prosecution will have to happen.

  6. Thanks for this Mark, very helpful.

    Near the beginning of all this when I heard that Samantha Power had done all these unmaskings, it seemed odd because as UN Ambassador she seemed peripheral to Flynn. Now, I get that she and all involved were major consumers of this stuff. Further, if it can be established that there was an all-hands effort to get Flynn (and others) through damaging leaks, and who led that effort, we'll see some (a lot?) Of indictments.

    Sorry if that's all self-evident. Guess it's all a matter of who flips on who. Is RICO necessary to connect all this?

    1. Yeah. The UN is a different situation. Flynn was undoubtedly working with UN diplomats, but the UN is treated differently than the Russian Embassy. Thus, all those Samantha Power unmaskings. Which is probably diplomatically embarrassing for the US to see made public.

      Forget RICO. That's intended for organized crime, not for corrupt misuse of public office that doesn't get into more traditional criminal areas. Stick with conspiracy (to deprive of civil rights and to deprive Fed Gov of honest service), false statements, perjury, obstruction.

  7. The bottom line, is one way or another the Flynn/Kislyak conversation was scooped up under FISA and for the reasons outlined above Flynn's name was left unminimized. The use of the term "tech cut" by the FBI guys tells you that.

  8. Safe to say you've already seen Stephen McIntyre's nice thread on this and yesterday's posts?


    1. Yes, thanks, Brad. Two comments:

      1) Kingmaker is a good example of reading without understanding. The sections he cites have to do with presidential authority for an emergency FISA (per Bongino), but I specifically point out that this was a quite garden variety FISA. The idea that Comey and McCabe would have testified openly to an illegal act by Obama that Nunes then totally ignored is just silly.

      2) The part that McIntyre brings about the PDB ref in McCabe's book is interesting and very telling. The take from what McCabe writes is that the professional CI staff knew about the conversation and understood that it wasn't a thing--it was normal and appropriate just as Barr has said. The 7th floor, Comey and McCabe, saw a chance to frame Flynn anyway.

      Of course McCabe's book is very self serving and has to be taken with a grai of salt.

    2. "[C]onversation ... wasn't a thing--it was normal and appropriate just as Barr has said. The 7th floor, Comey and McCabe, saw a chance to frame Flynn anyway."

      Every part, every angle of the "Trump-Russia" fraud was manufactured from normal or staged circumstances presented as nefarious. They believed they could get away with it because Hillary was going to win in a "landslide" and nobody would ever know. But it failed and they've had to contort themselves into human pretzels ever since November 2016.

      The "Russian disinformation" fallback in which they and their NeverTrump surrogates have taken cover doesn't even make sense against "the Russians wanted Trump to win". So the "kompromat" lie and the rest of the unfounded, evidence-free garbage in the "Steele dossier" that was harmful to Trump was Russian disinformation put out by the Russians who wanted Trump to win? M'kay.

  9. And for those who don't read climateaudit's whole thread, this one quick reply is worth looking at:

  10. Ok, last one, I promise :)

    1. In that regard, an example of what happens with the fixation on "unmasking" without understanding what it's really about:

      CTH: "President Trump Discusses Unmasking of Flynn and Obama’s Political Surveillance – ie. “Obamagate”President Trump Discusses Unmasking of Flynn and Obama’s Political Surveillance – ie. “Obamagate”

      Problem: Never once does Trump refer to "unmasking".

      The real crime is the investigation itself. Once you understand that, then every subsequent action--even lawful ones--is potentially an act in furtherance of the conspiracy to deprive Flynn of his constitutional rights.

  11. “The real crime is the investigation itself.”

    It seems so simple to understand that -the centrality of predication- but I guess it’s easy for a lot of people to get sidetracked by one detail or another.

    The giveaway, I’ll maintain till I die, is the refusal of the players to willingly reveal what the predication really was, when it all really began, and what all they really did. Their trying so hard to hide everything tells me they themselves don’t believe the investigation was legit, so if they don’t believe it was, why should I?

    1. That's the thing. As we saw from the WFO opening and closing ECs, there was no predication. They just wrote down a bunch of nonsense and called it "predication." And there was nobody there to second guess them because FBIHQ was totally on board with that.

  12. One problem with your theory. It assumes Kislyak spent the holidays in DC. Even McCarthy says he doubts it but can find no reporting either way.

    I keep asking why is no one speculating about this call being picked up via the Page FISA?

    Of course, that has a problem, too. They wouldn't have to unmask anything on Flynn, unless, to your point, those other unmasking requests were for non-FBI reports

    1. That's not a problem with my "theory." McCarthy admits that the Russian Christmas holiday is actually a week into January. Here's part of a comment I wrote:

      McCarthy is only guessing, and he says so:

      "I do not know that for a fact, but I’d be surprised if it weren’t true."

      Contra: This US--NOT Russian--holiday season was far from ordinary, because it was during the transition to a new POTUS from a different party and it was a time of special tension in US-USSR relations, fomented by Obama. I'd be very surprised if Kislyak abandoned his post, and especially because it was NOT a Russian holiday.

  13. Mark, why did Stzrok and Page kvetch that Clapper et al were using the wrong narrative re "incidental collection", if according to your theory that is exactly what it was, and that it was not illegal?

    1. First, this isn't a "theory". I'm simply recording what these FBI insiders said happened. In FBI parlance a traditional FISA (i.e., NOT 702 collection) is referred to as a "technical source" or "tech." The first level product of a tech includes summaries of the take written up in the form of "tech cuts" or "cuts"--think of "cuts" as the traditional FISA version of a FD-302. The fact that Comey, McCabe, Priestap, and Strzok all referred to "tech cuts" and to "minimization" is a clear indication that we're dealing with a traditional FISA operated by the FBI according to an order from the FISC. The overhear of Flynn was, in fact, "incidental" collection in the technical sense, since we're told that there was no FISA directly targeting Flynn. In point of fact, since there was no FISA directly targeting Flynn, any collection on Flynn in this context--Flynn located in the US--would have been totally illegal unless it were connected to some other authorized collection. The open descriptions of the FBI officials of "tech cuts" shows that, one way or another, they considered that they were on solid legal ground as far as the actual collection went and that the collection was done incidental to an existing FISA order. The use of what was collected might be a different matter.

      Second, good question. The very use of the term "narrative" seems odd in a context that is controlled by statutory law: FISA. In such a context you would expect testimony heavily laced with technical terminology from the statute. I believe that Strzok's objection to using the technically correct term, "incidental", had to do with a desire to avoid common misperceptions--such as are displayed by Senator Graham talking to Yates. Since Yates wouldn't confirm what everybody knew, i.e., the US has FISAs on Russian establishments in the US, Graham ends up going down the rabbit hole of "unmasking", even though Yates tries to correct him and steer him back to traditional FISA, without naming it.

      Traditional FISA is totally non-controversial. What IS controversial is "702 collection," and nowadays the term "incidental collection" is strongly associated with "702 collection." All you have to do to see that is do a search along the lines of "fisa incidental collection" and your results will be top heavy with references to "702 collection." It's quite possible that Strzok wanted Yates to explicitly steer Graham away from using the term "incidental collection" to avoid the perception that the FBI's Russian FISA that picked up Flynn had anything to do with "702 collection."

      Another related possibility is that Strzok wanted Yates to go more aggressively on the offensive--again, to avoid misunderstanding based on the term "incidental." Stephen McIntyre usefully points out that "incidental" is NOT the same thing in the FISA context as "accidental." That would explain the use of the word "narrative." To prevent misperceptions re traditional FISA, confusing it with 702, Strzok may have wanted Yates to use the McIntyre-style distinction: there was nothing incidental/accidental about picking up Flynn because traditional FISA is intended to pick up agents of (here) Russia communicating with Russian officials. That approach would be "narrative," as opposed to an appeal to the technical language in the text of the FISA statute.

      One way or another, you can't get away from the FBI's clear description of a typical FISA operation. If there had been anything illegal going on at the collection stage they would not have testified about it so openly to the GOP controlled HPSCI, since any lie would have opened them up to perjury. The confidence they exhibit in their testimony also shows that the FISA in question was not the Carter Page FISA.

    2. Thank you, Mark. Your explanation makes a lot of sense.

      Appreciate you taking the time to response to those of us seeking clarity.

    3. You're welcome. I worked with this stuff on a daily basis for over two decades. Some things have changed, but the basics remain the same.

  14. FISA on the Russian Embassy?