Will he or won’t he?
Will President Trump order the disclosure of any warrant applications to the Foreign Intelligence Surveillance Court (the FISA Court) in which the Justice Department and FBI presented any information derived from the Steele dossier?
We don’t need to imperil national security. There is no need to disclose the entirety of any application. There is no need to expose intelligence sources or methods of gathering information — they can be redacted. We don’t even need to see any actual application; a declassified summary of the relevant information will do. We just need to know if what administration supporters are saying is true: In seeking surveillance authority on the rationale that Trump associates were acting as agents of a foreign power, did the Justice Department and the FBI present the FISA court with the Steele dossier as if it were a product of U.S. intelligence reporting — rather than what it really was, a political opposition-research product commissioned by the Clinton campaign?
That is an explosive charge. So, at the very least, will the president order the Justice Department to provide any such FISA applications to the House Intelligence Committee — preferably along with an explanation of why the president’s own appointees at the Justice Department and the FBI have been defying the committee’s requests for information?
Even before controversy arose over the Steele dossier, many of us were prepared to believe that there was more evidence that the Obama Justice Department and intelligence agencies had been put in the service of the Clinton campaign than that the Trump campaign had colluded in a Russian espionage operation against the 2016 election. Now, the Trump administration’s most effective advocates on Capitol Hill and in the media have made a plausible circumstantial case that the Obama administration colluded with the Clinton campaign to conduct court-authorized spying on the Trump campaign.
Grilling FBI director Christopher Wray at an Intelligence Committee hearing Thursday, my friend Jim Jordan, a Republican congressman from Ohio, deduced that the Clinton campaign, through its law firm, had retained the research firm Fusion GPS and former British spy Christopher Steele to compile a “dossier” filled with “fake news, National Enquirer garbage”; that dossier was then “all dressed up by the FBI, taken to the FISA Court, and presented as a legitimate intelligence document.”
It is speculated that this was done, fraudulently, in order to persuade the FISA Court that Trump associates, and perhaps Donald Trump himself, were in cahoots with the Kremlin’s operations against the United States. There is a problem with the theory, though — a metaphorical “elephant in the room.”
That elephant is the president.
What the president’s champions fail to mention is that he is in charge of classified information — including classified applications submitted to the secret FISA Court. Was candidate Trump the victim of political spying? Of a weaponization by the Obama administration of the government’s intelligence-collection power, with ramifications that, thanks to the Mueller investigation, beset the Trump administration to this day? If President Trump is indeed a victim, then it just so happens that he is uniquely positioned to expose this shocking abuse of power. All he has to do is order disclosure.
Mind you, we are talking here about Donald Trump: the “when attacked, never apologize, always hit back twice as hard” brawler. He has never seemed like a guy who would suffer in silence if he had the power to reveal such treachery perpetrated against him. If what happened is as bad as it is being portrayed, why are the Justice Department and FBI, under Trump-appointed leadership, stonewalling Republican-led congressional committees? After Thursday’s hearing, why didn’t the president tell Director Wray and Deputy Attorney General Rod Rosenstein that, by close of business Friday, either the FISA application should be in the House Intelligence Committee’s hands or their resignations should be on his desk?
Could there be fire where Congressman Jordan has detected smoke? No one who watched the Obama administration politicize intelligence and law enforcement could reject the possibility out of hand. But here’s the thing: A few months back, we had similarly explosive allegations — the “unmasking” controversy. President Trump could easily have disclosed the information we needed to assess whether there had been a shocking abuse of power or just good-faith intelligence collection and analysis. But no disclosure was ordered; and while the president accused Obama’s national-security adviser of breaking the law, Trump’s own national-security adviser concluded that there had been no misconduct.
The matter is worth revisiting. The identities of Americans incidentally intercepted during lawful foreign-intelligence collections are generally concealed in intelligence reports. But we learned that Obama national-security officials directed “unmasking” on hundreds of occasions — i.e., directed that the identities of Americans, including some connected to the Trump campaign, be revealed (only in reports disseminated to intelligence agencies, not to the public).
Combined with several other irregularities, this had the makings of a real scandal. First, just as his administration was about to end, President Obama suddenly ordered wider dissemination of raw intelligence throughout the spy agencies. Second, there was a torrent of classified leaks, which made it clear that there had been spying on Trump associates. Third, a former Defense Department official, Evelyn Farkas, acknowledged — bragged would be a better word — that her friends in the Obama administration were quietly encouraging Congress to demand intelligence regarding Trump and Russia. “That’s why you have the leaking,” she chirped.
Combine this with the facts that (a) Susan Rice, Obama’s national-security adviser, initially denied knowing anything about the unmasking before it was confirmed that she was involved (as our David French has detailed); and (b) hundreds of unmasking requests were made in the name of Samantha Power, Obama’s U.N. ambassador, a position in which the need to know so many unmasked American identities is not apparent. Alarmingly, Power now denies that she personally made most of those requests. All together, it adds up to reasonable suspicion that there was a conspiracy to leak classified information in a manner that would damage Trump politically.
As I observed at the time, though, the unmasking was lawful under the very forgiving guidelines that apply. Whether it nonetheless amounted to an abuse of power depended on whether there was a legitimate intelligence purpose involved — such as an inquiry, based on good-faith suspicion, into whether Trump associates were having nefarious contacts with operatives of the Putin regime. Had that been the case, not only would it have been appropriate for the Justice Department to investigate, but it would have been irresponsible not to do so — although the leaking would still have been outrageous and worthy of prosecution.
There was, I further noted, one official who was in a position to clarify things instantly: President Trump. As the chief executive and the ultimate authority on classified information, the president had the power to disclose — at least to congressional investigators, if not to the public at large — which Obama officials did the unmasking, which Trump associates were unmasked, and why. Yet, although the president publicly accused Ms. Rice of committing a crime by unmasking American identities (as I said, it was not a crime), he took no action to expose the supposedly scandalous unmasking. In the meantime, as Eli Lake reported (based on accounts from two unidentified intelligence officials), Trump’s national-security adviser, H. R. McMaster, determined that his predecessor, Rice, had done nothing wrong.
I’m still not sold. The known facts are troubling: The leaking is egregious, the fact that unmaskings were falsely attributed to Ms. Power in government recordkeeping raises disturbing questions, and McMaster’s reported vouch for Ms. Rice is an intelligence leak, not a finding based on a thorough, official investigation. Nevertheless, President Trump would have been a principal victim had there been an abuse of power, and he has the authority to end all speculation by disclosing the relevant information. Since he apparently refuses to do so, one must assume that the intelligence agencies and Obama national-security officials had good reasons for taking the actions they took.
The Dossier: Tissue of Lies or Useful Source?
That brings us back, at last, to the Steele dossier. In the Trumpist portrayal, the dossier is a tissue of lies. This claim is not without foundation. Not only is the dossier a politically motivated hit job orchestrated by Trump’s opponent, but Byron York notes that former FBI director James Comey, no Trump fan, has dismissively described it as “salacious and unverified.” In addition, some dossier allegations have been vigorously rebutted, and defamation lawsuits have been filed against Steele, Fusion GPS (the research firm that hired Steele), and the media outlets that publicized the dossier.
Still, as I have previously pointed out, the reports compiled by Steele to generate the dossier run nearly three dozen single-spaced pages and contain scores of factual claims. Trump defenders have not mounted a point-by-point refutation, just a generalized dismissal, on the rationale that some likely misinformation and many unconfirmed claims render the dossier so tainted that it should be deemed totally bogus. That is not an unreasonable position, but neither is it a showstopper. In fact, some close observers contend, with thorough analysis, that some factual assertions in the dossier have been extensively corroborated (see, e.g., Natasha Bertrand, here, and former CIA officer John Sipher, here). Moreover, Steele, who is said to have enjoyed a good reputation among U.S. intelligence agents, maintains that 70 to 90 percent of his reporting is accurate. He believes his sources are reliable and notes that, though not verified, neither has most of the information been negated.
It is not impossible that the process by which dossier claims were submitted to the FISA Court was corrupt. Having worked for the Justice Department and with the FBI for many years, though, I have my doubts. The Justice Department and FBI care deeply about their credibility with the FISA Court, and the FISA Court bristles at caricatures of it as a rubber-stamp. The government has a strong motive not to deceive the judges, and the judges to scrutinize FISA applications carefully. Consequently, I have always believed there is a second, more plausible possibility: The FBI used the dossier as a source of leads, not as a finished intelligence product that needed no further investigation. The bureau, I suspect, was able to corroborate some of the claims in the dossier, and its investigation of those claims was presented to the FISA Court.
If the FBI did this, there might have been no need for the Justice Department to refer to the dossier in a FISA application, which would have obviated the need to evaluate the dossier’s credibility. The government is not required to tell a judge how it was tipped off to information unless it is relying on the tip as part of the reason the judge should believe the information.
An example: Let’s say I’m an FBI agent, and a confidential source tells me he believes the woman in the next apartment is laundering money for drug dealers. Based on that tip, I watch the apartment and see known drug dealers go in and out. When they leave, I see the woman go to her bank with paper bags that might contain cash. Then I subpoena her bank records and find that she’s making big bank deposits. Now, if I want to ask a judge for a warrant to wiretap the woman’s phone, I am not required to tell the judge that a confidential source tipped me off to the woman’s suspicious behavior. I simply have to tell the court about enough of my investigation to establish probable cause of a money laundering crime: the meetings with drug dealers, the bags of cash, and the bank records. I gathered that information myself; it doesn’t hinge on the credibility of my informant.
This is what may have happened with the dossier. If so, then it could accurately be said that the dossier, just like the confidential source in my hypothetical, was used to help the government get a FISA warrant. But it would not be true that the FBI and Justice Department fraudulently presented the dossier to the FISA Court as if it were a refined U.S. intelligence analysis; instead, they would have presented information the FBI had developed independently after being tipped off by the dossier.
There would be nothing untoward about such a process. It wouldn’t matter that the dossier was political “oppo” research. The FBI gets leads from all sorts of shady sources; what matters is whether the information the Justice Department ultimately gives the court has been investigated adequately by the FBI.
Needless to say, if this is how it happened, the Trump administration would not want the information in the FISA application disclosed. To be sure, the information would not necessarily indicate there was any Trump-campaign collusion in Russian espionage. But it might show that (a) there were unsavory contacts between Trump associates and foreign government operatives; (b) there was enough FBI-verified information in the warrant application (which probably was not limited to the dossier’s allegations) for the FISA court to find probable cause to believe one or more Trump-connected people were acting as agents of a foreign power; and (c) parts of the dossier have been corroborated, which would destroy the Trump political claim that the dossier is a tissue of lies.
President Trump is uniquely positioned to reveal how the dossier was handled and what the FISA Court was told. As Congressman Jordan urges, Trump’s own FBI and Justice Department employees could easily let the Intelligence Committee examine any FISA applications derived from the dossier. Why doesn’t the president just order them to comply with Congress’s demand?
In the unmasking controversy, it seems Trump was more interested in politically exploiting the specter of abusive unmasking than in ordering the disclosure of what actually happened. Is the same thing true of the dossier? I don’t know why the FBI and Justice Department are stonewalling the Intelligence Committee. Suffice it to say, however, that the president could order disclosure if he wanted to. He hasn’t. If he persists in that posture, we have to assume he would prefer that we not know what the FBI told the FISA Court.