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Thursday, September 10, 2020

UPDATED: About Team Mueller's Phone Problems

TGP has an excellent summary of what's known regarding the mass wiping of Team Mueller phones:

NEW: DOJ Records Show Weissmann, Other Mueller Henchmen Claimed to Have “Accidentally Wiped” at Least 31 Phones Used in Russia Probe

For anyone who hasn't accidentally wiped their phone, here's how you might accidentally do that (paraphrase):

You put your phone in airplane mode, lock it and then nuke the phone by repeatedly entering the wrong password.
The wrong password must be entered 10 times in a row in order to nuke the phone.

As it happens, this accident happened to Andrew Weissmann with two of his three phones.

Does this suggest that Team Mueller lawyers and investigators new they might have something to hide? Yes it does.

UPDATE 1: A fried asked me whether Weissmann and others could be in trouble over this. The short answer, of course, would have been: I don't know. But I don't usually do short answers, so I sent an email. I still don't know, but we'll probably be learning more of the facts of the situation. In the meantime:

It sounds at first blush like some kind of obstruction--obstruction of an investigation. What we need to know is whether OIG asked for the phones in connection with a criminal investigation or simply some sort of internal review. If it was criminal, yes, big deal. If not, the penalties are disciplinary and could lead to being fired. Woops! They've mostly all left or been fired anyway.

Here's a link to a document put out by FTC's OIG--but I assume the situation is similar with DoJ's OIG, and it illustrates the weakness of all OIG investigations. The doc goes on about how important it is to cooperate with OIG. Here's the key passage, though:

Failure to cooperate with an OIG request for information or records is serious misconduct and may lead to disciplinary action up to and including removal. Further, furnishing false information or concealing any type of information from the OIG or obstructing OIG investigations, audits, or other inquiries could constitute a violation of law and result in disciplinary action or criminal prosecution.

So, we need to know more.

Shipwreckedcrew says he's working on this, so maybe he'll be able to find out what was involved in the specific circumstances. My belief, however, is that this was not in connection with a criminal investigation.

However ...

If Durham should come up with some sort of indictment in which the operations of the SCO is an issue--say, in connection with the Flynn case, etc.--then the wiping could come in. Perhaps not as direct evidence, that would depend on a lot of evidentiary rules specific to the case, but almost certainly for impeachment purposes if the defendants took the stand.

UPDATE 2: Sidney Powell on fire:





46 comments:

  1. The other way they "constructively" destroyed their data was turning over the phones in "airplane mode" and locking them, and NOT providing the passcode, so the records could NOT be retrieved.

    Factory reset was the only option to allow the phones to be reissued, so that what the tech people did.

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    1. Since those phones are government property, and one has no presumption of privacy when using government property, the passcodes could have been demanded. So I presume the techies were ordered to wipe them. I doubt they'd do so unless told to.

      I wonder whether there may be other ways to recover data.

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    2. Oh, but they all had passcode amnesia! That's the beauty of the scheme. They all forgot their passcodes when the OIG ask for their phones!

      Alternate means of recovery depend, AFAIK, on what model of Apple phone they were using. Older ones, like the shooter in San Bernardino had, can be successfully "brute forced" if some exotic techniques are employed, but my understanding is newer Apple phones cannot be broken into without the passcode, because there is no way to trick-out the ten wrong passcode reset on the newer phones.

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    3. Go to the NSA and do a 702 search using the phone number.

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    4. Bingo. But ...

      A federal judge recently ruled that that whole program is illegal. It's supposed to have a foreign nexus, but here we're talking about lawyers in DC. So I'm not sure that's available.

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    5. Pass codes could have been demanded, but aren't there real senior level people? My experience is with the military, and if a General/Colonel gave his phone to some tech, the tech isn't going to demand a passcode. He's gonna clear the phone anyway he can without a pass code and re-issue it.

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  2. I know what their defense will be: "the dog that ate the Woods File for the CP FISA also ate the passcodes for all 31 Mueller SCO phones whose records could not be recovered!"

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    1. I don't think there was ever anything in the Woods File.

      Rob S

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  3. Typo alert:
    "lawyers and investigators Knew...."

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  4. No way any jury would see this as "coincidence", ergo precoordination, hence conspiracy. All of those smart lawyers indisputably tied themselves to whatever even one of them can be proven to be involved in. If Durham nails one the odds are he'll have to put up one of those "take-a-number-and-wait" dispensers on his office wall for the rush to play Lets Make a Deal.
    No wonder Weissmann seems to be getting more hysterical with each appearance.

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  5. Kudos to Judicial Watch.

    This backs Marks theory Durham / Barr found this conspiracy was way bigger than they expected.

    This increases the need for fbi / doj credibility for criminal charges to happen. Otherwise this is proof we have two systems of justice.

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  6. Destroying cell phones worked for Hillary and her staff. Why wouldn't it work for the Weissman gang but by a less kinetic ending? No one is ever held accountable for such blatant actions to destroy incriminating evidence, so 'anything goes' while they laugh in our faces. Their #Resist raised fist is working.

    DJL

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  7. Wouldn't the basic defense against a conspiracy charge here be that all these actions --that look like a pattern all going in the direction of hurting Trump and/or covering up previous wrongdoing-- are actually just a bunch of innocent coincidences and innocent mistakes? IOW, “even if it looks like there’s a pattern, it's all innocent.”

    So wouldn't this data erasure be something that's pretty darn hard to explain away as sheer coincidence or innocent mistake? And don't you think there are plenty other specific acts Durham & friends know of that also are very hard to explain away innocently? Doesn't there come a point where there are just too many "coincidences" & "mistakes," all pointing in the exact same direction, for any reasonable jury to accept as innocent & accidental - especially when motive should be easy for the skilled attorneys at DOJ to establish, also?

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    1. I guess we're gonna find out. Eventually.

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    2. Unless there is a medical condition that is virulently contagious and creates "contemporaneous collective password amnesia" as a symptom, there is no plausible way to ascribe these actions all causing data loss on 31 phones, that were requested by the IG, and used by Mueller's Inquisition, to some random chance independent causation.

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    3. Of course not. What it was was an in your face act by Team Mueller people who knew they'd be leaving DoJ anyway. And who knew they'd be gone by the time Horowitz was done and could recommend "disciplinary action."

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    4. May I respectfully suggest that with happened with Hillary’s team, Page and Strozk’s disappearing data when they left Mueller’s team that Horowitz And DOJ were willfully complicit in not having all those remaining phones protected and backed up? Nobody on that smart and ethical team of investigators considered that?

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    5. re: the UPDATE...

      I still think Destruction/Hiding government records is the better choice of criminal statute that Obstruction:

      >> The necessary measure of protection for government documents and records is provided by 18 U.S.C. § 2071. Section 2071(a) contains a broad prohibition against destruction of government records or attempts to destroy such records. This section provides that whoever: willfully and unlawfully; conceals, removes, mutilates, obliterates or destroys; or attempts to conceal, remove, mutilate, obliterate or destroy; or carries away with intent to conceal, remove, mutilate, obliterate or destroy; any record, proceeding, map, book, paper, document or other thing deposited in any public office may be punished by imprisonment for three years, a $2, 000 fine, or both.

      There are several important aspects to this offense. First, it is a specific intent crime. This means that the defendant must act intentionally with knowledge that he is violating the law. See United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972). Moreover, one case has suggested that this specific intent requires that the defendant know that the documents involved are public records. See United States v. DeGroat, 30 F. 764, 765 (E.D.Mich. 1887).

      The acts proscribed by this section are defined broadly. Essentially three types of conduct are prohibited by 18 U.S.C. § 2071(a). These are: (1) concealment, removal, mutilation, obliteration or destruction of records; (2) any attempt to commit these proscribed acts; and (3) carrying away any record with the intent to conceal, remove, mutilate or destroy it. It should be noted that all of these acts involve either misappropriation of or damage to public records. This has led one court to conclude that the mere photocopying of these records does not violate 18 U.S.C. § 2071. See United States v. Rosner, 352 F. Supp. 915, 919-22 (S.D.N.Y. 1972). <<

      Then add Conspiracy to commit same.

      That eliminates the need for there to have been a pending investigation to be thwarted by the destruction/concealment of the records on the phones, which Obstruction would require.

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    6. deposited in any public office

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    7. @Mark: "deposited in any office." Nice catch. You'd make a fine lawyer (ha!). One more reason why it's probably a bigger deal as one piece of evidence n the grander scheme than as a standalone crime.

      @MjH: The cynic in me says you're probably not wrong on the "willful" part of the Horowitz complicity, but even if not, there's still no excuse, at least not in my admittedly amateur opinion, for not having them seized. He had already seen more than enough to know it made no sense to just assume he was taking no chance by just requesting them, not by a long shot.

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    8. Just saw a taped interview with Sidney Powell who when asked about the phones being wiped alleged that she requested Horowitz in 2018 seize all phones to preserve evidence. Apparently did not happen-she says destruction of evidence by Mueller team. Our cynicism re Horowitz may be well founded.

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  8. Hillary and staff is a hard one ethically to prosecute, due to her being a Trump opponent / Presidential Candidate.

    The one that amazes me is destruction at the IRS of 20 hard drives, and the back ups. Remy of ReasonTV has an amusing song about it: Remy: What are the Chances? (An IRS Love Song)

    >AnonymousSeptember 10, 2020 at 5:03 PM
    >Destroying cell phones worked for Hillary and her staff.

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  9. SWC is apparently working on something regarding the 31 mysterious Mueller phones being reset.

    He makes the observation on twitter that the 31 are prosecutors and SCO staffers, not FBI agents/analysts.

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    1. Yes. I hadda laugh at that. He had just been going on with someone about how agents are always doing hinky things with the evidence and prosecutors hafta lay down the law, etc. Another theme he likes is that CI agents are all idiots or ethically compromised who don't know anything about real cases. He knows this because he's never worked a CI case in his life but he read it on the internet or heard it from some other prosecutor who never worked a CI case in their life.

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    2. I can tell you that Team Mueller didn't have a corner on unethical and otherwise dishonest and/or lazy or incompetent prosecutors.

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  10. Lindsay Graham, on Hannity TV, said (paraphrasing): "If you're really mad about the Mueller prosecutors wiping their phones before the IG could examine the records contained on them, wait about 10-12 days and well see how mad you are then after hearing about something else that happened ..."

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  11. On Hannity, Lindsey just said that this cell phone thing will be peanuts, compared to what's coming "in 10-12 days".
    Not clear if this was Business or "normal" days, but it likely means c. 25 Sept.
    If it's not big busts, I'd be OK w/ smoking-gun evidence, say, that Mueller etc. *knew* there was *no* Russian hacking.

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    1. I read that to merely say that some new outrage surfaces every couple of weeks with these guys, not that we can expect a major new development in late September.

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  12. If the bombshell Lindsey referred to would be worth a press. conf., esp. w/ Barr, it'd be Game On!

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  13. I wonder--given that 10-12 day time frame, maybe this will have to do with the Flynn case.

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    1. I see your point, since the hearing is set for days after Lindsey says this news will appear.

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  14. My worry is that it is only something to be angry about(more bad acts disclosed)--not something to be relieved about (like indictments). Although Graham had a grin going on when he said what he did.

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  15. Dyer has an interesting article on the ability to retrieve data from these locked iphones. Basically, stay tuned because she feels they would be able to retrieve a lot.
    Also, why is this becoming public now? Perhaps because the retrieval effort took this long, but now has been done.

    https://libertyunyielding.com/2020/09/11/should-we-despair-over-phones-wiped-by-mueller-team-members-maybe-not-see-the-strzok-page-text-incident/

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    1. That's what I was wondering. Thanks.

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    2. And I see that she's saying the same things I said in my update.

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  16. >> https://twitter.com/HansMahncke/status/1304182046772932611 <<

    Takes a minimum of 96 minutes to enter the wrong passcode 10 times on an Iphone, due to built in delays triggered by excessive wrong passcode attempts.

    Sounds like "intent" to me.

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    1. You're very cynical! Sounds like a conservative conspiracy theory. :-)

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  17. Catherine Herridge tweet points out Mueller Prosecutors were well-versed in FedGov records retention requirements before "wiping/locking" their phones when IG asked for them:

    https://twitter.com/CBS_Herridge/status/1304504120259358721

    She identifies several potential statutes that may have been violated, in addition to the 2071 I mentioned yesterday.

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    1. The phones don't contain "public records." You don't really think they were so dumb as to set themselves up for a felony rap that easily? I'm sure they thought that through at the time.

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    2. Perhaps not, but they ARE "government records" and there has to be a statute that criminalizes destruction, hiding, etc., of government records.

      N.B. Van Grack (Flynn prosecutor) is apparently one of the SCO prosecutors whose phone was "scrubbed/locked."

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    3. I agree with EZ, of course, "I'm not expert". It would be the same as a group of prosecutors involved in investigating jury tampering by the mafia suddenly decided to re-format their laptops, repeatedly, simultaneously when their office is shut down due to lack of substantive results and amid accusations of violations of protocol/corruption. How would that be viewed/handled/charged by the DoJ.

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    4. Not exactly. All of this happened 10+ years after I retired and so much changed. Phones and laptops are NOT the same--not in the FBI or DoJ. SWC has done a series of tweets this morning discussing those matters, and he had more recent experience than I did. Saying there "has to be a law" doesn't make it so. Of course it's nefarious, but not everything that's against laws or regs is a criminal violation and a lot depends.

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    5. Have been reading a number of stories on this subject this a.m. and several focus on "how easy this is to do and "anyone can do it", mostly seeming to insinuate that over two dozen phones being afflicted with e-amnesia in one office, simultaneously, is perfectly reasonable, and into my head popped the kernel of a thought experiment. When the migraine that that heavy lifting induced subsided I decided to see if anyone here had ran across data showing how many accidental wipes/lockouts had been experienced across the entire .gov, a field of at least several hundred thousand without restricting it to the DoJ alone, for the preceding two or three years. I'm thinking this group probably represents approximately the 95th percentile of such occurrences. It requires intensely studied obtuseness for that to present as reasonable.

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  18. I wonder if "Bob"Mueller's phone was wiped?

    It would surprise me if he could have figured out how to have done it...Of course, Weissmann could have done it for him...He had practice.

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