Getting the Real Russia Report (feat. Kyle Kinane)

My expertise is getting secrets from the government. And dammit, I was going to get those Mueller records first. That's investigative journalist Jason Leopold. These days, he's reporting for Bloomberg news. But on Saturday, November 2, 2019, Jason and his team were waiting impatiently for documents from Robert Mueller's investigation into Russian interference in the 2016 election. It was the first tranche from thousands of pages of interview summaries that the FBI had tried to keep secret. But we managed to pry them loose. Jason was certain there'd be important information in these pages. And he couldn't wait to break whatever news they contained. You see, CNN was also getting these records. The issue was that Jason's copy was supposed to be mailed to Chicago. Meanwhile, CNN is in Washington, DC. And the records office is in Virginia. So they're going to get it first. And I was like, there's no way I will accept this. So after some hounding, the government agreed to reroute the package and get it to Jason's team as quickly as possible. And then on this Saturday in 2019, the race against time began when Jason's colleague in DC received a package with a CD inside a CD like it was 1999, which by the way is how they still do it to this day. But with the records firmly in hand, the gravity of the situation set in. It was like, holy s***, we just got the first release from the Mueller investigation. And immediately just went crazy and saying that, all right, we have this. We don't know if CNN has it, but we have an advantage. It's Saturday. We're willing to work on a Saturday. It didn't take long for Jason and his colleagues to find something the public deserve to know. There was this conspiracy floating around as it related to the Democratic National Committee and the hack of their emails. President Trump has President Zelensky to look into crowd strike. He was referring to a cyber security firm at the center of a conspiracy theory that suggests Ukraine not Russia was behind the DNC's server hack in the 2016 elections. And so these records revealed that it was actually Paul Manafort who was pushing and floating that conspiracy theory. It was such a big deal at the time. You know, so we got the first story up just honestly within an hour and then just kept filling it out. Sure enough, Jason and the team beat CNN by hours. Man, everyone there was just so excited and that evening it was MSNBC that had a segment on it. Joining us now, senior investigative reporter Buzzfeed News, Jason Leopold. The documents provide a window into what was taking place behind the scenes, but it allows the public to see what the FBI memorialized firsthand. And boy, was there a lot more? So much more than we can fit into this episode. But the thing is we wouldn't know any of it. Not one bit. If not for a little thing called the Freedom of Information Act. The FOIA. It's something Jason and I know very well because we both fought to get these documents released, which is what we do together every day. And that's what we're here to talk about. Cue the music. I'm investigative journalist Jason Leopold. I spend most of my days getting documents from the government. I'm attorney Matt Tapping and I fight them in court to open their files when they don't want to. From Bloomberg and No Smiley, this is Disclosure, a podcast about trying to lose government secrets, the Freedom of Information Act, and the unexpected places that takes us. I mean, I'll just say it. Matt, I never thought that the Russian investigation and the Mueller investigation, you know, that looked into Trump would have such a long life. We're seeing that in the news all over again. Yeah, enormous news. The Trump Justice Department has now indicted former FBI director James Comey. Jim Comey charged with lying to Congress. Just days after the president publicly pressured to turn his general pambandi to pursue cases against his opponents, including Comey by name. The indictment is tied to Comey's 2020 testimony in front of Congress about Russian meddling in the 2016 presidential election. In about what three days before the statute of limitations was going to expire. My family and I have known for years that there are costs to standing up to Donald Trump, but I have great confidence in the federal judicial system and I'm innocent. So let's have a trial. It's funny because anytime there's something that is related to a hot button issue, I immediately think back to, did I file a FOIA request for anything related to that person or anything that they did? And when the news broke about Comey being indicted, I immediately thought back to a request that I filed in 2018. So back in 2018, Trump said during an interview with the Daily Collar that he had 100 pictures of James Comey and Robert Mueller hugging and kissing each other. When he said that, that was a FOIA opportunity. So I filed a FOIA request with the FBI and I said, I would like to have pictures of James Comey and Robert Mueller hugging and kissing each other. Oh, that's just so good. And the FBI responded by saying they couldn't locate any photographs of Comey and Mueller hugging and kissing. So I wrote a little story about it and tweeted that app. Matt, can you read what I tweeted? I would be honored, Jesus. FOIA update. The FBI has not been able to locate any photographs of James Comey and Robert Mueller hugging and kissing. parentheses. Trump study had 100. My favorite part is you got a response from Comey that says, my wife is so relieved crying, laughing emoji. But Matt, as far as that recent indictment from this year is concerned, I'm not going to get into whether Comey should or shouldn't have been charged. But the history leading up to it is worth discussing. One of the reasons why the effects of the Russian investigation are still being felt now is because at the time it was an investigation that just dominated Trump's entire presidency. And Trump was outraged that he was under federal investigation, which is why it also became such a big bite for us to get all those records that might never have seen the light of day. So we're talking about something that dates back to 2016 when Comey was still in charge of the FBI, right? Where the FBI was secretly at work on an investigation called Crossfire Hurricane. And that name was chosen as a homage to the Rolling Stones. What's the song? I forgot. Anyway, we'll figure it out. It's jumping Jack flesh, Jason Pozer. Oh, Matt, stop. Don't listen to him. I mean, he's right, but don't listen to him. Yeah, I am right. So the investigation was to essentially look into Trump's ties to Russia as campaigns ties to Russia. It was open to after if anyone recalls Trump saying, Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing. The investigation also centered around the sources of information that were coming into the FBI, including what we know now are very suspect sources that were essentially saying Trump has these ties to Russia campaign has these ties to Russia. There's these communications that are taking place with people at the Kremlin. FBI opens up this investigation. Trump gets elected president. And immediately after he's elected, multiple congressional committees start these Russia-related investigations. There was lots of leaks taking place that kind of forced the attorney general at the time at the Justice Department, Jeff Sessions, to ultimately recuse himself. My staff recommended recusal. They said that since I had involvement with the campaign, I should not be involved in any campaign investigation. And then Komi is fired from the FBI by Trump in May 2017, which Komi ultimately claimed was related to his handling of the Russia investigation. I take the president's words. I know I was fired because of something about the way I was conducting the Russian investigation was in some way putting pressure on him in some way, irritating him and he decided to fire me because of that. So with Sessions recusing himself, this led to Robert Mueller, former director of the FBI, being appointed a special counsel, you know, to make sure any investigation was independent. So really the person we have to thank is Mr. McGoo, aka Jeff Sessions. I keep handy for these occasions. The Wikipedia page for a list of nicknames used by Donald Trump. I had to look it up, but the nickname for Jeff Sessions was Mr. McGoo. By the way, no nickname for Robert Mueller on the list, surprisingly. Fast-foward to March 2019. We heard that the Mueller report was going to be submitted any day to Bill Bar, the attorney general at the time, who told a Senate committee months earlier that the public deserve to know what the results of the investigation were. My goal will be to provide as much transparency as I can consistent with the law, and I will not let personal, political, or other improper interests influence my decision. I wanted to put that to the test, so I called Matt, my attorney, also known as the FOIA King of Chicago, as his coffee mug says. Matt and his team have got the government to release documents hundreds of times, like when he forced the release of the Laquan McDonald dash cam footage. Mayor Emmanuel and the prosecutor battle for months to keep the dash cam video under wraps. They lose when a judge orders the release of the video. And he helps me pry things loose from the government, regardless of which parties in power. So, the plan was that Jason would submit a FOIA or Freedom of Information Act request for the report. And let me just explain a little bit. You're going to hear an awful lot about FOIA. So, FOIA's statute that says the public is entitled to government records. Since it's a government of the people and for the people, right? And this law says that the work of all these government agencies, their emails, notes, meeting minutes, all that stuff, it should be available to the public if a member of the public asks. Accept in certain circumstances where there's something like personal privacy or an ongoing investigation or national security, or a long list of things where the government can keep information secret from you. But when they do that, you have a right to go to court to challenge that. And Jason and I have done that countless times in order to get access to all kinds of records. But the first step in using the FOIA is always the same. Make a request. Right. Just request the documents from the government agency that would have them. I do these requests as a journalist all the time. It's my thing. But really, anybody can do this. And the law says that the government has to respond within certain timelines. In the request, either has to be denied or as happens all the time, the agency just blows you off and doesn't actually comply with their legal obligations. So once that happens, then you can go to court to challenge it. Yeah. And I wanted to use this process to get my hands on the Mueller report as quickly as possible. So he makes the request. And then like the next thing that happens publicly is that Bill Barr sends his letter to Congress with the quote, principle conclusions. So what's out in the public is not the Mueller report itself. At this point, we couldn't see Mueller's take just the summary from Barr. They wanted to get their version of what the report said out in the world and have it get some traction before they release the report. Yes. Yes. And this is like, this drives me nuts. I sure drove Jason nuts. It drove a lot of people nuts. That to me is like FOIA's screaming like, let me in, let me in. This is my job now. They're saying one thing you want to know what it really says. Then you got to get the documents. And for just a second, it looks like we might get a FOIA compliant version of the report quickly because the DOJ granted expedited processing to my request. Well, except that they almost immediately tell us that it'll take them even longer to process the report under the Freedom of Information Act because it fell within quote, unusual circumstances. So we sue the government to get that report. Oh, and while this is all going on, something a little weird happens. So about a month after Bill Barr released his initial summary of Mueller's findings, they finally released the first version of the Mueller report itself. But it wasn't actually processed and redacted according to the FOIA statues. It was FOIA-esque. So they redacted things like grain jury stuff and like harm to ongoing investigations. They just used their own kind of shorthand for it instead of the actual FOIA statue. Harm to ongoing matter. Sorry to interrupt that. Right. That's right. Right. So we got in accord and we were meaning like they got to release the FOIA version like now, like next week, two days, like really, really fast. They shouldn't need that much time. They've already been through the report 30 telling everybody what the report says. Like they need to release a FOIA compliant version of this report like as soon as possible because every day that goes by is another day in which there's a story out there and we don't really know if that's what the report says or not. Which it's important to note is creating an environment that the judge said, quote, I think is going to cause a significant portion of the American public to be concerned about whether there is transparency. So we're basically putting the pile of the metal trying to make this lawsuit go as fast as we can get the judge to go. And he was willing to go pretty fast. So they get a deadline by which they have to properly review and reject the report. Then our FOIA redacted report comes out May 6, 2019. But all the redactions were largely the same. The big difference is that instead of the weird shorthand, they were now citing freedom of information act exemptions to justify what they would keep secret. But this step was really important because that's how we make sure the government is complying with the law. Yes, exactly Matt. Accountability plus now that we knew how they were trying to justify the redactions, we could challenge those in court, which we did. And you'll hear all about that after the break. Before the break, we had just gotten our hands on a FOIA process copy of the MOLLA report where the government has said, here's what we want to keep secret. And here are the exemptions that let us do that. So now it's time to go back to court where we say, oh, you want to keep that a secret because you think the freedom of information act allows you to prove it. Yeah, because that's what FOIA is. Like, stuff gets withheld, stuff gets redacted. But the law says that the government has to prove in court if challenged that everything that they would help that there's a basis in the statute to do that. And they have to prove that with some level of evidence. And they have to show how the exemptions actually apply. Yeah, we really wanted to challenge a lot of the redactions that were hiding the reasons why Mueller concluded that some people, Donald Trump Jr., being a big one here wouldn't be charged with crimes, even though some of their conduct was already publicly detailed. Okay, so let me explain a little bit more about how this works. Normally, the government just explains everything they withheld and they put it in these declarations to describe what they withheld and explain why it's exempt. Like, it rises and falls with that. But sometimes the court will actually say, no, I want to look at it, especially if there's kind of reasons to be concerned about whether the government is really being straight about it. Yeah, we really weren't sure what the judge in our case was going to do at this point. And so the next big thing that happened in the case is March 5th, 2020, which is like just before the world shuts down for COVID. I remember I'm in New Orleans for the Nicar conference, which is a conference of like mostly dated journalists and a lot of FOIA stuff. So I'm there when we get this decision and the judge, who's a Bush appointee, just like demolishes Bill Barr and says, I'm going to read this report myself because of this super shady way that the Justice Department went about first releasing like their summary and other things. And then there were disputes between Mueller's team and the Attorney General Bill Barr about whether Bill Barr was mischaracterizing things like that whole ball of wax turned into the judge saying this is all fishy. He writes a very scathing opinion. Yeah, we have a couple of excerpts here from it and we've asked comedian Kyle Kenaean to read it. All right, give a shot. The inconsistencies between Attorney General Barr's statements made at the time when the public did not have access to the redacted version of the Mueller report caused the court to seriously question whether Attorney General Barr made a calculated attempt to influence public disclosure about the Mueller report in favor of President Trump. He's calling into question the credibility of the sitting Attorney General of the United States. Like that's a big deal. This is Bill Barr. So this is Trump version one. This is when like most of the cabinet people, you know, most of the people in positions of power, they're people with like long Republican pedigrees. And I remember calling Jason, we were both like, oh my god. Oh my god. Did you see that part? Can you believe what he just said? And then we, you know, it was, oh man, it was unbelievable. But what that meant was that the DOJ had to send over a secret package to the court. Then after looking over everything for a few months, the judge granted summary judgment on September 30, 2020, which mostly upheld the redactions and effectively ended our case at the district court level. So without lost stinging a little, we looked ahead to the appeals process because there were things that we felt like we had a good shot at challenging on appeal. And in particular, we really wanted to better understand why certain people weren't charged with any crimes, even though they're mentioned in the report, and there's information about them in the report, there wasn't an explanation about why, for example, Donald Trump, Jr. wasn't charged with any crimes despite things that were found in the investigation. So we kind of zeroed in on what we wanted to do next. And that's what we were focusing on when we looked ahead to an appeal. And a reason that that was really important was because there was this constant drum beat out of Trump world that this was an illegal political witch hunt. And we thought that a real good way to get to the bottom of that, whether that is true or not true, was to take a close look at how they handled Donald Trump, Jr., which would tend to show you if this was an illegal political witch hunt, then you would think that they went out of their way to investigate Don Jr. when there was no basis to do so. But conversely, if they had the goods on Don Jr. and they didn't charge him, that would suggest it's the opposite of a political witch hunt. And there's a huge public interest in knowing, did Mueller do a good job or not? And so we took that up to the DC Circuit Court of Appeals and we argued over that like pretty narrow issue, which we actually have tape of. The government is withholding not only the names of Trump campaign officials who were investigated and not charged, but also the justification for those decisions. Or all arguments are really fun. But the most rewarding thing is when the other lawyers are youing and the judges are taking the stuff that you wrote in your brief and they're using that material to pound your opponent into the ground. And that's exactly what happened. They completely understood our theory of how to look at all this. The public's need for understanding is really high here. The president is saying it's a and they just rampaged on this government lawyer who was evading their questions in just trying to like make the thing go away. A clear evidentiary showing is required to establish government misconduct. Or purposes of a set. I'm not talking about misconduct. You're a misrepresenter. The rationale that says the public is entitled to understand. And it didn't go away. The individual has been identified. The facts with respect to that individual are in the public record. They just, they really beat them up. The only thing that's missing that you've redacted is the explanation for why the government took the position it took in the report. And the outcome was because of our lawsuit, the public got to know why Mueller didn't charge Donald Trump Jr. with any crimes. Because what got unredacted was the portions that said we looked at Donald Trump Jr. for sort of computer hacking types of crimes. Let's turn again to our friend Kyle Canaine for the exact wording from the report. The office considered whether Donald Trump Jr. intentionally accessed a protected computer without authorization. In violation of Title 18, United States Code, section 1030, subsection A, paragraph two, sub paragraph C, subsection C, paragraph two, sub paragraph A. You get the point. Providing penalties for quote whoever intentionally accesses a computer without authorization or exceeds authorized access and thereby obtains information from any protected computer. All right, Matt, continue. So they believed that they had sufficient evidence to charge him with a misdemeanor, but they decided in an exercise of discretion that they weren't going to charge him. And they decided not to charge him with the felony version because they didn't know definitively that they could prove that the value of that information exceeded, I think it was a $5,000 threshold in order to charge it as a felony. So what's your read on it then? It showed me, and this is just my opinion, that Mueller handled Trump world with kid gloves in the course of this investigation and didn't go at them as hard as I think prosecutors often do in other cases. But you know, I do think it's worth noting that these things we were able to probably lose from the government. Those redactions were originally agreed upon by Robert Mueller's team and Bill Barr's team. So this wasn't just Bill Barr's side trying to keep things secret. This was also Mueller's side trying to keep things secret. What's your takeaway there, Matt? These are institutionalists who are primarily concerned with preserving the reputation and integrity of the institutions that they're working for, which is a different question from like serving the broader public interests of the United States of America. And that is why we have a foyer statue because we know that that's what government officials are very often going to do. I think a lot of times they can't help themselves. I don't even know that I would be any better if I was in those shoes, but that's why we have to have a law that drags these documents out of them because they don't want to be scrutinized. So the conclusion I would draw is that Mueller didn't want to be scrutinized about why he didn't charge Donald Trump Jr., which means there's a good chance. That's why it's actually been redacted. It's something they just don't want us to know because they don't want us to be able to scrutinize them and question their work and hold them accountable. But that is something that we as Americans deserve to know and have a right to know. So this is a perfect example of like what foyer does, why it's important and what it can get you. These cases were, to me, the best example of how powerful foyer is and keeping the public informed about what their government is up to and alerting the public to what was taking place behind the scenes, which is capped off by literally unredacting that section of the Mueller report. And seeing Donald Trump Jr.'s name there, I mean, that was incredible. But I will say not as incredible as it could have been, which you'll hear all about after the break. So on the other side of the break, you heard about some of the big wins and big news that came out of our attempts to get the Mueller report unredacted. All in all, we ended up filing five different lawsuits for information from the Mueller investigation. But God, Matt, do you remember the time we thought we might just get every single thing we could have ever wanted from the Mueller investigation? And then some mark meadows. This was awesome. Here's what here's what I remember. I remember that Trump tweeted, I fully authorized the total declassification of any and all documents pertaining to the single greatest political crime in American history, the Russia hoax. Likewise, the Hillary Clinton email scandal, no red actions exclamation point October 6, 2020. So I read that and immediately reached for my phone to call Matt. And I said, back, we have to file an emergency motion in court. And like, I mean, I know what an emergency motion is, but the fact that that was a meat that immediately popped into my head is like, we got to do this. Did you see what Trump tweeted? This relates to everything that we are asking for, because we are still battling the government in terms of trying to get some of these records released. Matt, do you recall that phone call in your response? I mean, I got really excited because I thought it was a great idea. There's all these records that are being with health from us based on them being classified or for other exemption claims. And here the president who has the authority to declassify documents is saying that not only are these declassified, he's saying he has already ordered them to decline. It was like a cry for help. And it was like, we were going to help him. Like, this is what he wants. He wants all this stuff declassified and released. And the court and court deep state won't do it. Well, like, we'll help. Right. Like, we can help make that happen. And I'm not even sure if it was a strategy at that point. It was honestly wanted to get, you know, I certainly just wanted to get these records. But I was also thinking what could the response by the government ultimately be to this? Yeah, because even if you don't get records, you can learn a lot from the response itself. They'll give you declarations and descriptions of records that lets you understand things like what's the volume of communication on this issue? Who's involved? When were they involved? And sometimes those things are newsworthy, even if you can't get all the details. So it was exciting and it looked like it was going to be great for the public, but also a lot of fun to make the government answer for this and say the president is saying these are declassified and you're not releasing them, like explain yourself. And in terms of timing, we're like a month before the 2020 election. Russia hoax kind of language is all over the campaign. This is a huge campaign issue. And like, we maybe have the opportunity to just blow open like a whole bunch of additional documents right before the election, because the president says that he wants a more released. So follow this emergency motion. And what's the process, Matt? Yeah, an emergency motion, right? So, so because those are the words I use. Was that was that right? Was it right? An emergency motion? Yeah, you called it the right thing. That tweet was October 6th and by October 8th, we file what's called emergency motion of plaintiffs for court order requiring defendants to reprocess the Mueller report before the November 3rd, 2020 presidential election in light of the president's recent declassification and waiver. And then we spend just like two pages explaining what the case is about and reminding the court that it repeatedly recognized the importance of these records to the November 2020 election. And then we laid out the tweets. And we said, this should be pretty simple. It doesn't require any analysis. It doesn't require any consultation with anybody else. The president has said to release this, he has the authority to release it. So order them to reprocess it. You know, we have to like sort of confer with the government and they indicated not surprisingly that they would oppose and that they didn't read the tweet the way we read the tweet, but we filed a motion and then we're in court. I think just a few days later, we have a Zoom or a teleconference court hearing to argue all this and the judge is asking the government. He's like, I'm looking at this like it looks to me like that might be what he's saying. And the government say, no, no, no, that's not what he's saying. He's not saying he classed by anything and the judge says, well, did you ask him what he meant? And no, nobody actually asked him what he meant. So he orders them to go ask the president what he meant by this tweet. What we did forced the government into actually getting an answer from the president of the United States about whether he was intending to declassify all these records because the judge was like, you can't just come in here and see what you think he meant. You have no basis to know what he meant. Go ask him what he meant. Yeah, I mean essentially the first response by the government was just ignore Trump's truth. He doesn't mean why you tweeted. So we go into court, the judge says, no justice department, you don't just get to guess what he means. So the order says that the justice department within like four days shall file a declaration by the president or an individual who has conferred directly with the president regarding whether the president intended to order the declassification and release without redaction of the report prepared by the special counsel Mueller, blah, blah, blah, blah. So the judge is saying I want a statement under oath by the president or somebody who directly talked with the president about whether he intended to declassify. The task falls to Mark Meadows, who is chief of staff at the time. So he's got to go to president Trump and ask, did you attend to declassify documents when you made this tweet and Mark Meadows puts under oath? And again, our friend Kyle Kanane, the president indicated to me that his statements on Twitter were not self-executing declassification orders and do not require the declassification to release of any particular documents. Kind of doubtful to me that the word self-executing declassification order passed through the mouth of president Trump. Maybe it happened. I don't know, we don't know like it that I would have loved to go another round and said, well, what do you mean indicated? What did he say? Yeah. Not what did he indicate? Yeah. And did he really say the word self-executing declassification order? I think this is where we kind of reached the point where like, I think we're going to be pushing our luck if we're like, no judge, go back again and make them, you know, make them ask more definitively. So, but at this point, we knew, or at least I was thinking that that Trump, although he tweeted that and it was, it seemed like, I don't know, some red meat to his supporters, perhaps, but I also knew that we're not going to see these records come out. So, at this point, like, this is what I wanted. I wanted that declaration, that signed declaration where Mark Meadows in his first paragraph. I am chief of staff to President Donald J. Trump. I conferred with the president concerning his attentions with respect to two statements he made on Twitter. And I just, I was happy that we got this declaration. And I think the headline, oh yeah, here it is, Trump told his chief of staff, he didn't mean what he tweeted. That was the headline. And that was true. And so those documents were never released. But that, I think that's also just a good example of how filing itself becomes news in a FOIA case. God, that was, that was fun, man. You remember that? That was so much fun. We had a blast just kind of marching in there, been like, hey, Mark Meadows said it. Jason and I both have distrust of authority at times. So, so that's why this is fun. It's so true. That's what makes it fun. But that healthy distrust of authority we have is also why we do what we do. And why forcing the government to abide by the FOIA statutes is so important. The government in America is accountable to American citizens. We don't have to accept whatever explanations they want to provide. They owe us this information. Whether they want to give it to us or not. Coming up on the next episode of Disclosure, how the hell was he duped by Russian pranksters? This is Jerome Powell. He's the chairman of the Fed. Did that actually happen? We've even invited a few comedians to read the emails. Dear redacted. There will be only one winner who has begun. Could you please send us a printing press so we could print American dollars? From Bloomberg and No Smiling, this is Disclosure. The show is hosted by Matt Topic and me, Jason Leopold. It's produced by Heather Schrohring and Sean Cannon for No Smiling. Our editor for Bloomberg is Jeff Grokot. Our executive producers for Bloomberg are Sage Bauman and me, Jason Leopold. And our executive producers for No Smiling are Sean Cannon, Heather Schrohring and Matt Topic. The Disclosure theme song is by Nick, with additional music by Nick and Epidemic Sound. Sound design and mixing is by Sean Cannon. Documents were read this week by Kyle Canaine. For more transparency news and important document dumps, you can subscribe to my weekly FOIA files newsletter at bloomberg.com slash FOIA files. That's FOIA files. To get every episode early on Apple podcasts, become a bloomberg.com subscriber today. Check out our special intro offer right now at bloomberg.com slash podcast offer, or click the link in the show notes. You'll also unlock deep reporting, data, and analysis from reporters around the world. We'll see you again next Tuesday.