ICE Withdraws Demand For Journalists' Sources After Having Its Unconstitutional Demand Outed By BuzzFeed

from the government-is-kindly-invited-to-go-fuck-itself dept

They say "sunshine is the best disinfectant." Sometimes, though, sunshine is the best RAID. When you've got government cockroaches (feel free to pronounce it like Tony Montana) trying to crawl all over your stuff, the best thing you can do is point all the wattage/candlepower you can on its indiscretions.

Earlier this month, ICE tried to pull some fucked up shit. It sent a subpoena -- one issued by its office, not a judge -- to BuzzFeed. It asked the journalists there to turn over information on their sources, apparently in hopes of closing the loop on internal investigations into leaked documents.

BuzzFeed refused. Even better, BuzzFeed posted the bullshit "request" ICE made -- one that asked the site's journalists to remain silent in the face of government overreach. The subpoena came with this request appended;

“You are requested not to disclose the existence of this summons for an indefinite period of time. Any such disclosure will impede this investigation and thereby interfere with the enforcement of federal law.”

BuzzFeed ignored this, along with the rest of the subpoena. Which it should. This was just internal paperwork masquerading as a government-sanctioned order. ICE has no legal right to demand information on BuzzFeed's sources. It seems highly unlikely any court would allow this incursion on First Amendment protections. Bypassing the court by issuing its own paperwork shouldn't be allowed. But somehow it is. Journalistic concerns know these requests are worth less than the paper they're printed on. The problem is that not everyone knows that and degenerates like ICE are counting on people being ignorant of their Constitutional rights and protections.

BuzzFeed knows what the government can and can't do without judicial blessing. So it published its refusal along with ICE's faux "demand" it remain silent about the agency's attempted Constitutional bypass. In response to its garbage being made public domain, ICE has rescinded its attempt to turn confidential sources into government witnesses/prosecution targets.

Immigration and Customs Enforcement officials said Wednesday that it would not enforce a subpoena issued last week demanding BuzzFeed News identify its sources, a retreat from its earlier, stunning attempt to interfere with a news outlet operating under the protections of the First Amendment.

By "won't," ICE means "can't." It would be the rare judge that would approve of ICE violating long-held First Amendment protections for journalists and their sources. Even if they found a compliant judicial pawn, any challenge by BuzzFeed would see this bogus subpoena tossed onto the trash heap of ICE's trash history by the next judge down the line.

The government cannot do this. And the government knows this. That ICE even tried indicates it's been huffing whatever the Trump administration has been shoving into its paper bags. Just because the outgoing Prez has a hard-on for booting brown people out of the country doesn't change the Constitutional calculus.

Filed Under: dhs, ice, journalism, protecting sources, sources, subpoena
Companies: buzzfeed

ICE Sends Subpoena To BuzzFeed, Hoping To Force It To Turn Over Its Sources

from the going-nowhere-with-this-but-still-a-problem dept

Four years of Trump was more than enough time to weaponize federal agencies against journalists. The administration has routinely condemned critical press outlets as "fake news" and Trump's fervent embrace of border patrolling made it easier for the DHS and its agencies to abuse their power.

The Constitution doesn't seem to matter much to those "securing" the nation. The CBP put a bunch of journalists, activists, and immigration lawyers on a watchlist, subjecting them to additional intrusive searches at border crossings and airports. The DHS tried to top this by compiling dossiers on journalists who covered anti-police brutality protests in Oregon, as well as journalists who had published leaked DHS documents.

The assault on the Constitution continues, with another DHS component deciding the protections given to journalists aren't nearly as important as figuring out who's leaking government documents.

Immigration and Customs Enforcement investigators issued a subpoena this week demanding BuzzFeed News identify its sources — an extraordinary attempt by the government to interfere with a news outlet acting under the protections of the First Amendment, and a move that the agency’s former chief lambasted as “embarrassing.”

[...]

The subpoena, issued on Dec. 1 by an agent with the ICE Office of Professional Responsibility, concerns emails sent to ICE attorneys on a fast-track deportation program and plans to fine certain undocumented immigrants. It demands that BuzzFeed News “provide all documentation including, but not limited to: (1) date of receipt, (2) method of receipt, (3) source of document, and (4) contact information for the source of the document.”

BuzzFeed has refused to comply with this subpoena. It has also apparently ignored the gag order ICE attached to its demand for info. Not that it was much of a gag order. It "requested" BuzzFeed not disclose the contents of the subpoena but, like the subpoena itself, it's pretty much unenforceable.

A court didn't issue this request. ICE did. It can write its own subpoenas but it really can't make anyone comply without getting a court involved. And it seems unlikely ICE will get a court involved because very few courts are going to sign off on obvious First Amendment violations.

But even if it's useless, it's still a problem. ICE could try to get courts involved and turn journalists into extensions of internal investigations. It could mass mail subpoenas to as many press outlets as it can, hoping for a hit. The problematic part isn't how badly it's being done, but that it's being done at all.

Filed Under: 1st amendment, freedom of the press, ice, intimidation, journalism, source protection, sources, subpoena
Companies: buzzfeed

While Social Media Was Quick To Highlight And Limit The Spread Of False Claims Of Election Victory, Traditional Media Just Let It Flow

from the guys,-seriously? dept

For four years, all we've been hearing about is how social media was this terrible source of disinformation that had to be regulated because they were destroying democracy and all that. And so what happened last night/early this morning when Donald Trump falsely tried to claim he had won prior to all the votes being counted? Twitter and Facebook both reacted pretty quickly to flag the information, and highlight that it was misleading or false (and Twitter limited the ability to share it).

Meanwhile, nearly every major TV station allowed Trump to give his speech directly, in which he falsely claimed that he had already won states where there were still many votes to be counted, insisted that the counting of votes must be stopped (and claiming he was going to ask the Supreme Court to stop the count), and suggesting that there was fraud going on in a few states that still had significant mail-in ballots to count (most of which they hadn't been able to count prior to yesterday because of Republican legislatures blocking that ability). There was no attempt to delay what he was saying, to contextualize it or to point out it was wrong until well after it had broadcast.

And then you had journalistic malpractice via the Associated Press. Two of its White House reporters, Zeke Miller and Jonathan Lemire, decided to do a "straight" tweet repeating what Trump had said, without any context, without any caveats or context, as if it were factual reporting.

It's flabbergasting that the AP would take this view from nowhere approach to reporting on something so critical. And, even worse, since so many local newspapers just rerun AP newswire, that's the take that many people are going to see.

Other sources got it correct. Buzzfeed -- a site that old school journalists used to love to mock -- did a hell of a lot more journalism than the AP:

The Guardian, a UK paper, got the story correct as well:

We've been noting in the past year how studies have shown that TV news is the key source for disinformation and how it doesn't tend to go viral on social media until after it appears on TV.

So can someone explain to me why it is everyone wants to rush out and blame social media for disinformation?

Filed Under: content moderation, disinformation, donald trump, elections, fact checking, jonathan lemire, media, social media, zeke miller
Companies: ap, associated press, buzzfeed, facebook, guardian, twitter

DOJ Says Trump's Tweets Declassifying All Russia Investigation Docs Doesn't Mean Anything; Judge Says They Better Go Ask Him

from the how's-that-work-again? dept

Investigative reporter/FOIA terrorist Jason Leopold has been suing the US government for a while now, trying to get access to the full Robert Mueller special counsel report investigating President Trump's alleged ties to Russia. While a version of the report has been released, it was heavily redacted, sometimes in important areas. Leopold and Buzzfeed are seeking the report along with additional interview details, emails, memos, letters, and charts used by Mueller's office in preparing it. Not surprisingly, the DOJ has been fighting this.

Then, on October 6th, Trump announced on Twitter (naturally) that he had "fully authorized the total declassification of any & all documents" regarding the investigation:

About 40 minutes later, he tweeted that "all Russia Hoax Scandal information was Declassified by me long ago. Unfortunately for our Country, people have acted very slowly":

That put the DOJ in a bit of a bind, because it had been saying in the lawsuit that it couldn't reveal this classified information. Leopold and his lawyers quickly filed an emergency motion, pointing out that the President had now declassified this information, and thus the DOJ no longer had any excuse to withhold it:

On October 6, 2020, the President of the United States directed that all documents pertaining to investigations into Russian interference in the 2016 election, which includes the Mueller investigation, be released to the public, and stated that he had, in fact, previously ordered this be done. Twitter, @realDonaldTrump, Oct. 6, 2020 at 8:41pm (“I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. Likewise, the Hillary Clinton Email Scandal. No redactions!”); Twitter, @realDonaldTrump, Oct. 6, 2020 at 9:21pm (“All Russia Hoax Scandal information was Declassified by me long ago. Unfortunately for our Country, people have acted very slowly, especially since it is perhaps the biggest political crime in the history of our Country. Act!!!”) (attached as Group Exhibit A). As a result, (1) Exemption 1 no longer applies because the records are no longer classified, and (2) any FOIA exemptions have been waived with the exception of disclosures prohibited by the Privacy Act, Rule 6(e), or other statutes that prohibit release.

As a result, Plaintiffs ask the Court to order the government to reprocess the 302s to remove all redactions or withholdings based on Exemption 1 or any discretionary exemptions like Exemption 5, by October 28, 2020. This should be a simple process that requires no independent analysis or consultation beyond simply reviewing which exemptions were asserted and removing the applicable redactions based solely on which exemption claimed.

It should be noted here (and this is kind of important) that the President of the United States has total freedom to declassify anything on his own whims at any time. And these tweets sure looked like him doing exactly that.

The DOJ has now decided to pretend that the statements from the President are not actually official statements from the President. In its opposition to Leopold's filing as well as the declaration in support, they argue that the President's tweets insisting that he is declassifying everything don't mean jack squat.

There is no basis to require the Federal Bureau of Investigation (“FBI”) to reprocess over 4,000 pages of FD-302s from the Special Counsel’s investigation into Russian interference in the 2016 Presidential election by October 28. The President’s recent statements on Twitter referencing the “declassification” of information were not an order to the Department of Justice (the “Department” or “DOJ”) to declassify the materials in this case.... The Twitter statements do not constitute a self-executing declassification order. ...

Oh really? The declaration from the Deputy Attorney General Bradley Weinsheimer basically says that White House lawyers told them to ignore the tweets.

As concerns the above-referenced tweets from the President, the Department has not received a declassification order from the President related to the materials at issue in this or any other FOIA case. After the President issued his statements on Twitter, I and other Department officials consulted with the White House Counsel's Office about the matters discussed in those statements, including potential declassification of documents related to the Russia Investigation and Hillary Clinton's emails, and whether the Twitter statements were meant as an order to alter any redactions that have already been taken on any materials in this case and other FOIA cases. The purpose of this consultation was to obtain the official position of the White House regarding the meaning and effect of the President's statements.

In other words, the DOJ is saying that it can't actually follow the plain language of the President's own tweets, and must check with the White House's lawyers to ask "did he really mean that?"

The White House Counsel's Office informed the Department that there is no order requiring wholesale declassification or disclosure of documents at issue in this matter. The Department was further informed that the President's statements on Twitter were not self-executing declassification orders and do not required the declassification of any particular documents. Instead, the President has authorized the Attorney General to declassify documents as part of his ongoing review of intelligence activities relating to the 2016 Presidential election and certain related matters. The Attorney General has not ordered the declassification and release of any of the redacted material in this case based on the President's tweets. The Department was further informed that the President's statements on Twitter do not require altering any redactions on any record at issue in this case, including, but not limited to, any redactions taken pursuant to any discretionary FOIA exemptions. Nor do the President's statements on Twitter prevent the Department from taking appropriate exemptions and redacting documents consistent with law and the positions the Department takes in FOIA matters.

So: we're just ignoring what the President tweeted because we want to.

Leopold and Buzzfeed have since responded by pointing out that the President regularly makes decrees by Twitter, and that those are him "conducting official business." The DOJ can't just ignore that:

or the last three years and nine months, the President has governed this country by tweet. The President has stipulated that he uses Twitter “to announce, describe, and defend his policies; to promote his Administration's legislative agenda; to announce official decisions; to engage with foreign political leaders; [and] to publicize state visits.” Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 231-32 (2d Cir. 2019) (emphasis added). His administration describes the President’s Twitter account as “one of the White House’s main vehicles for conducting official business” and his tweets are “official statements of the President.” Id. at 232. He has even used his tweets to make “official” “legal notice” to Congress. Donald J. Trump (@realDonaldTrump), Twitter (Jan. 5, 2020, 2:25 PM), available at https://twitter.com/realdonaldtrump/status/1213919480574812160 (notifying Congress the United States “will quickly & fully strike back, & perhaps in a disproportionate manner,” should Iran attack any U.S. target).

It is not at all surprising, therefore, that the President would use Twitter as the means by which he would declassify records and waive FOIA exemptions on behalf of the Executive Branch over which is holds Constitutional authority. Indeed, it would be surprising if he did so by any other means. The Court should reject the Government’s back-pedaling and order DOJ to comply with the President’s clear directive to declassify and remove redactions from the narrative FD-302 forms responsive to Plaintiffs’ FOIA requests. And if the Court requires any clarity beyond the President’s unequivocal tweets, it should direct the Office of White House Counsel to appear at the hearing scheduled for Friday.

The filing further notes that there is no rule that declassification can't come by tweet or has to take a special form. If the President says something is declassified it is declassified.

There is nothing in the Constitution, Executive Order 13,526, or otherwise that prohibits a president from declassifying records in whatever way and through whatever form of communication the president sees fit. Thus, an official presidential tweet stating “I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. . . . No redactions!” is more than sufficient to exercise that Constitutional authority. The government offers nothing indicating that the President did not mean exactly what he said or that he lacked the Constitutional authority to do what he has done. Instead, it claims that Plaintiffs “have pointed to no order declassifying the documents at issue in this case,” ECF No. 107 at 4, which is plainly wrong: the tweet is the order, and it came in an official statement directly from the President himself.

The filing also notes that what the White House counsel thinks doesn't matter. The only one who matters here is the President himself:

The Weinsheimer declaration does not support the government’s position, and in fact supports Plaintiffs’. As the declaration makes clear, the question is whether the tweets were “meant as an order to alter any redactions that have already been taken on any materials in this case and other cases.” .... But the declaration makes clear that neither the DOJ nor the White House Counsel’s Office actually attempted to get an answer to that question from the only person who can definitively answer it: the President. Instead, they sought, apparently without actually asking the President, to determine whether the President issued some further “self-executing declassification order” beyond the tweets and somehow concluded that the President merely “authorized the Attorney General to declassify documents as part of his ongoing review of intelligence activities relating to the 2016 Presidential election and certain related matters.”.... But the President himself has already made clear that this interpretation of his intent is wrong: he clearly stated in an official presidential communication that this same material “was Declassified by me long ago,” but “people have acted very slowly.”

This morning, in a hearing before Judge Reggie Walton (who is not known for being happy when the government plays games in front of him), it appears that Leopold's argument is absolutely winning the day. Walton told the DOJ that Trump's tweets seem pretty clear and he doesn't see how they can argue he didn't declassify stuff. He also seemed perturbed that no one actually asked the President what he meant, and postponed the rest of the hearing to tell the DOJ to go ask the President if he actually meant what he tweeted:

Of course, it now seems likely that the White House lawyers and the DOJ will very carefully explain to the President why they want him to say he didn't mean what he clearly said, potentially allowing him to walk back his fairly unequivocal statements. At the very least, though, that should enable reporters to question the President further on why he falsely claimed to have declassified stuff. At the end of the day, either all of the documents have been declassified or the President will need to admit that he lied about declassifying them.

Filed Under: declassification, doj, donald trump, jason leopold, reggie walton, robert mueller, russia investigation, tweets
Companies: buzzfeed, twitter

Buzzfeed Wins Defamation Lawsuit Filed Against It Over Publication Of The Steele Dossier

from the because-of-course dept

This was pretty much a foregone conclusion -- but a few different people (including Trump's ex-fixer Michael Cohen) have sued Buzzfeed for publishing the so-called "Steele Dossier," which were a collection of opposition style research put together by Christopher Steele about Donald Trump and his associated. While Cohen dropped his suit once he realized that discovery was about to create a huge, huge mess, another such lawsuit continued -- the one filed by Aleksej Gubarev and some of his companies, complaining about references to himself and his companies in the dossier.

We noted that this lawsuit was "doomed to fail" and that's exactly what has happened. We expected that it would likely fail because Buzzfeed is, at the very least, the wrong party to sue. They were simply releasing the newsworthy file to discuss what was being passed around Washington DC circles. But they did not produce or write the document.

Instead, the court went with another option: the fair report privilege -- which is an important protection for journalism found in many states. It basically says that the press is not liable for publishing defamatory content, so long as you are relying on public documents that were part of an "official action" of the government. In NY, where Buzzfeed is based, the court found that the fair report privilege is fairly broad, but the question was whether or not the collection of reports that made up the dossier were used in an "official action" from the government. Buzzfeed argued that since President Trump was briefed on the document, then it clearly was a part of an official government action. Gubarev argued that just the part about him needed to be part of an official action.

The court determines that Buzzfeed's argument wins the day:

As discovery has fleshed out the facts, the issue of whether there was official action with respect to the specific allegations about Plaintiffs has taken on more importance than previously. Distilled to its essence, Defendants’ motion turns on the following question: may Defendants claim the privilege’s protection when the record reveals that certain parts of the Dossier were subject to official action but does not reveal whether the specific allegations about Plaintiffs were subject to official action? For the reasons discussed below, the answer is: yes.

The Court begins again with the text Section 74. The second paragraph of that statute exempts from the privilege “anything said or done at the time and place of such a proceeding which was not a part thereof.” N.Y. Civ. Rights Law § 74. Based on this provision, Plaintiffs take the position that Defendants must show that the particular statements about them were subject to official proceedings. But Defendants respond that New York law does not require that level of granularity; they have satisfied their burden by showing that the Dossier was subject to official action. Alternatively, they argue that they have satisfied their burden because they have shown that parts of Report 166 were subject to official action (namely, those portions concerning Carter Page, and those concerning Russian connections with the Trump campaign) and that is sufficient to protect their publication of the whole Report.

How close the connection between the challenged Report and the official proceeding must be “has not been clearly defined.” Fine, 11 F. Supp. at 216–17. But as discussed previously, a report is to be given a degree of liberality. See D.E. 171, p. 18 (“[I]t would undermine the privilege to require that one who reports on official action tie every specific allegation in the report to a specific instance of official action.”) (citing Holy Spirit Ass’n for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63, 68 (1979) (holding that reports of official proceedings “must be accorded some degree of liberality” and “the language used [in the report] should not be dissected and analyzed with a lexicographer’s precision.”); Alf v. Buffalo News, Inc., 21 N.Y.3d 988, 990, 995 N.E.2d 168, 169 (2013) (holding that to claim the privilege a report need not be more than “substantially accurate.”)). Additionally, New York law does not require line-by-line review of the report. See id. And lastly, Section 74 has been given “broad construction” such that “reports that bear a more attenuated relationship to a proceeding have been deemed sufficiently connected.”

Interestingly, the fact that Buzzfeed just threw the entire document up online without additional reporting -- something it was widely criticized for -- appears to have helped it in this case. In rejecting comparisons to other cases, the court highlighted the lack of additional commentary:

These cases are fundamentally different from the present case. In those cases, the allegedly defamatory statements summarized, restated, and editorialized upon official proceedings. It was right in those cases to parse the statements line-by-line because the privilege obligates the press to faithfully recount official proceedings. See Freidman, 884 F.3d at 95. But here, BuzzFeed did not editorialize or restate the Dossier; it simply published it. See D.E. 171, p. 14. To go line-by-line to determine if official action existed with respect to each statement in Report 166 would not impose on BuzzFeed a duty to faithfully recount official proceedings, but instead, would impose on BuzzFeed a duty to investigate extensively the allegations of the Dossier and to determine whether the government was investigating each separate allegation. Defamation law does not impose that requirement on the press.

Separately, the court agrees with Buzzfeed that it is protected because the published article was "fair and true." That's not saying that the contents of the Steele reports are necessarily "fair" or "true," but rather that it was fair and true that these Steele reports were being passed around DC among politicians and journalists.

Amusingly, one of Gubarev's arguments was that Buzzfeed should have had the link to the dossier files "underlined" to show they were a hyperlink. The court, again, is not impressed:

Plaintiffs’ second argument is that BuzzFeed was required to underline the hyperlink; it was not sufficient to merely put it in blue. Plaintiffs cite no cases standing for the proposition that a hyperlink must conform to such strict formatting requirements to be conspicuous. Cases (outside the defamation context) have recognized that hyperlinks are typically blue and underlined, but they uniformly take a totality-of-the-circumstances approach when determining whether a hyperlink is conspicuous.

And, with that Buzzfeed's Motion for Summary Judgment is successful and the case gets tossed. It is entirely possible that Gubarev will appeal, but I can't see this case ever succeeding.

Filed Under: aleksej gubarev, defamation, fair reporting, fair reporting privilege, steele dossier
Companies: buzzfeed

DOJ Rings Up Another Leaker, Nailing Financial Investigation Official For Handing Docs To Buzzfeed

from the stop-handing-journalists-info-the-public-might-want-to-see! dept

Another government employee has been charged with leaking sensitive info. This time it's a Financial Crimes Enforcement Network (FinCEN) official -- one who apparently handed dozens of suspicious activity reports (SARs) to Buzzfeed.

Manhattan U.S. Attorney Geoffrey Berman, who was picked by Trump to replace Preet Bharara’s deputy Joon Kim, denounced BuzzFeed’s accused source.

“Natalie Mayflower Sours Edwards, a senior-level FinCEN employee, betrayed her position of trust by repeatedly disclosing highly sensitive information contained in Suspicious Activity Reports (SARs) to an individual not authorized to receive them,” Berman said in a statement Wednesday announcing the charges.

The leaked SARs dealt with alleged money laundering by Russian diplomats, as well as transactions possibly related to the purchase of hacked Hillary Clinton emails by a GOP figure. These were supposedly the basis for nine Buzzfeed articles over the last year, with the most recent article cited in the complaint appearing only a few days ago (October 15).

The complaint [PDF] itself is an interesting read. It makes it clear investigators don't necessarily need to see the content of a person's messages to draw inferences about their behavior.

18. Based upon my training, experience, my conversations with other law enforcement agents with training and experience in cyber technology, and my conversations with law enforcement agents who have reviewed records received in response to a judicially-authorized pen register and trap and trace order for the EDWARDS Cellphone (the "EDWARDS Pen"), I have learned, among other things, that:

a.The EDWARDS Cellphone utilized a mobile messaging service that utilizes end-to-end encryption (the "Encrypted Application"), that is, a method of secure communication that prevents third-parties from accessing data, including the companies that host the end-to-end services, and law enforcement.

b. On or about August 1, 2018, within approximately six hours of the EDWARDS Pen becoming operative--and the day after the July 2018 Article was published--the EDWARDS Cellphone exchanged approximately 70 messages via the Encrypted Application with the Reporter-1 Cellphone during an approximately 20-minute time span between 12:33 a.m. and 12:54 a.m.

c.Between on or about July 31, 2018 and August 2, 2018, the EDWARDS Cellphone and the personal cellphone of CC-1 exchanged dozens of messages via the Encrypted Application.

d. On or about August 2, 2018, approximately one week prior to the publication of the First August 2018 Article, the EDWARDS Cellphone exchanged approximately 541 messages with the Reporter-1 Cellphone via the Encrypted Application.

e. On or about August 10, 2018, the day of the publication of the First August 2018 Article, the EDWARDS Cellphone and the Reporter-1 Cellphone exchanged approximately 11 messages via the Encrypted Application.

It doesn't appear investigators were able to access the content of the messages until they examined Edwards' phone.

Throughout the course of 2018, EDWARDS engaged in hundreds of electronic communications with Reporter-1, many via an encrypted application. A review to date, pursuant to a judicially-authorized search warrant executed today, of EDWARDS's personal cellphone has revealed that that cellphone contains the substance of many of these communications, including, as described in greater detail below, communications in which EDWARDS transmitted or described SARs or other protected information to Reporter-1.

So much for going dark. Presumably the information obtained with the pen register order was enough to secure a warrant to search a cellphone and flash drive owned by Edwards. "Reporter-1" is likely Jason Leopold, who wrote or co-wrote every article named in the DOJ complaint. This also means the DOJ likely has a whole bunch of conversations between a journalist and his source, although obtaining them from the source makes it far less of a First Amendment issue.

The other interesting part of the complaint is this: Edwards viewed her leaks as whistleblowing and had pursued a whistleblower complaint in the past.

During the interview described herein, EDWARDS told the Interviewing Agents, in sum and substance, that she is a "whistleblower" who provided the SARs to Reporter-1 for "record keeping." Based on my participation in this investigation and my conversations with other law enforcement agents, I am aware that, prior to the SARs Disclosures, EDWARDS had previously filed a whistleblower complaint unrelated to the SARs Disclosures, and that EDWARDS had also reached out to congressional staffers regarding, among other things, her unrelated whistleblower complaint.

These leaked SARS may have been one of the "other things" she spoke to staffers about. It appears she felt these SARs would just be buried by the administration. Or she felt these were of enough public interest they should be publicly-disclosed. Or it just may be the excuse she gave investigators during the interview.

Whatever the case, one thing remains clear: the Trump Administration is definitely interested in punishing whistleblowers, self-described or otherwise. As Trevor Timm of the Freedom of the Press Foundation points out, this is the fifth time journalists' sources have been charged with felonies since Trump took office. If he keeps it up, Obama's record-setting persecution of whistleblowers will be viewed with fond remembrance usually reserved for misremembering America's halcyon days of segregation and post-war baby making.

Filed Under: financial information, fincen, leaks, natalie edwards, reporters, sars, wiretap
Companies: buzzfeed

Court Says Comey And Other DOJ Officials Must Answer BuzzFeed's Questions About The Steele Dossier

from the not-as-big-as-you'd-think,-but-still-kind-of-big dept

Since publishing the urine-soaked "Steele Dossier," BuzzFeed has been targeted with multiple defamation lawsuits. Trump's former lawyer, Michael Cohen, ultimately dropped his lawsuit against the website after his own legal problems pretty much demanded he focus his legal attention elsewhere. Oh, and it was a lawsuit he was likely to lose, what with a lot of the alleged defamation being factual statements and any remaining defamation having been penned by the author of the dossier, not BuzzFeed itself.

Another doomed lawsuit is still active -- this one brought by Aleksej Gubarev and a couple of his companies (XBT Holdings and Webzilla, Inc.). Gubarev claims the next-to-last paragraph of the Steele Dossier defames him and his by linking Gubarv to Russian hacking attempts targeting the Democratic National Committee.

This lawsuit is likely doomed to fail as well, what with the alleged defamation having been penned by Steele, not BuzzFeed. But while it rolls towards this seemingly inevitable conclusion, the process continues with the subpoenaing of witnesses for both sides. BuzzFeed wants to depose people with knowledge of the events depicted in the dossier -- high-powered people like former FBI Director James Comey and other DOJ/FBI officials.

As Eriq Gardner notes on Twitter, this request has actually been granted, which is kind of a big deal.

Here's the text of the tweet if you can't see the embed:

WOW! This just in: A judge grants BuzzFeed's motion to compel testimony from James Comey and others at the Justice Dept. and FBI over the Trump Dossier.

The court has decided the answers BuzzFeed seeks from these officials is relevant and could contribute to the affirmative defenses the website has raised. From the order [PDF]:

Upon consideration of the parties’ briefs, and for the reasons set forth below, the court concludes that the subpoena—as substantially narrowed during the course of this litigation—is not unduly burdensome, and that BuzzFeed has made a sufficient showing of need to overcome the law enforcement privilege. The testimony that BuzzFeed seeks is essential to its defense against the defamation action and it cannot be obtained from any other source. Additionally, the release of the testimony will have a minimal impact, if any, on law enforcement interests, particularly in light of the substantial amount of information already officially acknowledged about the Dossier’s provenance and subsequent use by the FBI.

Accordingly, the court grants the Motion to Compel and orders the Government to produce, subject to a protective order, an affidavit that is responsive to the three topics set forth in BuzzFeed’s narrowed request.

This is a big deal, considering FBI/DOJ officials tend to remain beyond the reach of subpoenas thanks to hundreds of law enforcement/national security excuses that prevent most citizens from asking them any questions directly, much less under oath. So, kind of a coup for BuzzFeed and its legal team.

But wait, there's more less! Dismiss any images of Comey and other FBI officials taking the stand in court or spending hours being deposed by BuzzFeed's lawyers. That's just not happening. What's being compelled is the answer to three questions, which can all be answered with a single word.

Revised Narrowed Topic No. 3: The Government need only respond to one of the following and shall specify in its affidavit whether it is answering (A) or (B):

(A) Prior to 5:20 p.m. EST on January 10, 2017, did the FBI and/or any of the other Defendant agencies possess the two-page memorandum contained within the Dossier dated December 13, 2017, i.e., Report 2016/166?

(B) Prior to 5:20 p.m. EST on January 10, 2017, did the FBI and/or any of the other Defendant agencies possess all 35 pages of the Dossier?

Revised Narrowed Topic No. 7: Did the FBI receive from Senator John McCain a copy of the first 33 pages of the Dossier (i.e., all pages other than Report 2016/166) on or about December 9, 2016?

Revised Narrowed Topic No. 8: Did Mr. Clapper, Mr. Rogers, Mr. Brennan, and/or Mr. Comey, before January 10, 2017, brief President Obama about allegations contained in the Dossier?

Despite the FBI/DOJ only being required to answer three yes/no questions, the government is still arguing the request is too burdensome. The DOJ claimed -- with a straight face and under oath -- that answering these three questions would "divert crucial resources away" from its law enforcement and natsec work. The judge disagrees:

What started as a demand for documents and testimony covering nine separate topics is now a request to respond by sworn affidavit to three discrete questions, which likely can be answered with a simple “yes” or “no.” Not a heavy lift.

The government also argued that being compelled to answer three yes/no questions would result in it being swamped with similar requests from other litigants engaged in lawsuits over the same subject matter. The court lols and asks the government if it even bothered to assess the situation before making that claim.

Three lawsuits in the nearly 18 months since the Dossier’s publication—only one of which involves a demand on the Government—does not suggest there will be, as the Government Respondents fear, a mass “proliferation” of actions.

As for the government's claims answering these questions would compromise an ongoing investigation into Russian election interference, the court points to all the stuff already made public by the Nunes Memo, the Carter Page FISA warrant affidavits, and other public statements made by government officials.

To be sure, this is big news. The government isn't forced to hand over info -- however limited -- from ongoing investigations very often. This is a rarity. But it's not going to result in cross examination on the witness stand or a bunch of lawyers and clients gathered in a conference room objecting to each others actions over the minimal interactions from government officials. This is more BuzzFeed Poll than Perry Mason, but it's still nice to see a court give the government's oh-this-is-so-very-burdensome arguments the full, dismissive discussion they clearly deserve.

Filed Under: aleksej gubarev, christopher steele, deposition, doj, fbi, james comey, steele dossier
Companies: buzzfeed