Law & the Courts

The FISA-Gate Boomerangs

President Trump returns to the White House in March 2017. (Reuters photo: Joshua Roberts)
Many questions remain, but Democrats, including Obama, are probably not going to look good when we get the answers.

Some things still do not add up about the so-called Steele dossier, FISA warrants, the Nunes memo, and the hysterical Democratic reaction to it.

A Big Deal or a Nothing Deal?

1) Progressives and Democrats warned on the eve of the memo’s release that it would cause havoc throughout the intelligence agencies, by exposing classified means and processes.

When no serious intelligence expert claimed that the released memo had done such damage, the official response to the memo was suddenly recalibrated by progressives. It went from being radioactive to a “nothingburger.”

The obvious conclusion is cynical: Cry Armageddon to prevent its release, then, after the release, resort to yawns to downplay its significance. An even more cynical interpretation is that Rod Rosenstein, James Comey, and other officials stridently objected to the release of the memo because they are named in it. Comey incoherently mocked the memo’s purported unimportance even while listing all its deleterious effects and the crises that would ensue.

Congressional, DOJ, and FBI resistance to the release of most documents connected to FISA-gate apparently originates with fears that information will either reveal Obama-administration efforts to surveille Trump officials during a campaign or will suggest that the impetus for the Mueller investigation came as a result of illegal activities and a concocted dossier — or both.

2) Critics scream, “Carter Page is no big deal.” Aside from the easy retort that neither, initially, was a petty break-in at the Watergate complex, or rumors of supplying arms to distant guerillas in Central America, Page is a big deal for a variety of reasons.

Democrats allege that, given Carter Page’s familiarity with Russians, it was logical for the Obama administration to use the dossier’s references to him to substantiate FISA warrants.

But is not the opposite more likely true?

He was apparently known to intelligence agencies for years (supposedly under investigation variously by the FBI, the CIA, the NSA, the Director of National Intelligence, and the Financial Crimes Enforcement Network), and he may have been the object of a 2014 FISA warrant. But such intelligence agents were never able to bring charges against him, and it appears he even cooperated with American intelligence in gathering info against the Russians. So why would the FBI and DOJ, suddenly in 2016, believe that mention of Page’s name in an unverified opposition-research dossier warranted four FISA warrants to find wrongdoing?

After all, if he was so well known to the FBI for so many years, during which they never charged him with being a Russian agent, and if the FBI nonetheless still regarded him as suspicious in 2016, why not simply go to a regular court to obtain a warrant to wiretap him? Such a court, of course, would be less secretive, not known for a 99 percent approval rate, subject to far more deliberation, and less useful for surveilling Trump associates.

A more likely supposition is that it was not Page’s past flirtations with the Russians (who supposedly dubbed him an “idiot”) that abruptly brought him back into the sights of the DOJ and FBI in 2016. Instead, it was his brief and minor relationship with Trump, and his appearance in a bogus dossier, that offered useful pretexts for court-ordered surveillance sweeps and indirect targeting of possible Trump associates.

Page was simply a tool, to be surveilled in hopes of also sweeping up other names and information that might corroborate some shred of the dubious Steele dossier.

Page was simply a tool, to be surveilled in hopes of also sweeping up other names and information that might corroborate some shred of the dubious Steele dossier. In that narrow sense, his name might as well have been Jones or Smith.

So far, all Carter Page has been found guilty of is momentarily working for the Trump campaign. His likely future lawsuits against Steele, Fusion GPS, the Clinton campaign, the FBI, and the DOJ will probably follow a number of avenues.

3) The New York Times and others strangely have claimed that the dossier-based FISA warrants were not the real basis of the Russian-collusion allegations, given, as the memo implies, that the FISA warrants were issued after FBI agent Peter Strzok had investigated George Papadopoulos, another minor Trump-campaign official of brief tenure.

But there has never been much connection between Page and Papadopoulos, as the Nunes memo also made clear. It is far more likely that Papadopoulos was written off as a dead-end functionary by Strzok, who also claimed to his paramour that there was likely nothing to be found at all in the Russian-collusion investigation. (And indeed Papadopoulos eventually pled guilty to making false statements, not collusion).

More likely, the collusion narrative gained ground only when the Steele dossier energized subsequent FISA requests in October and after the election, resulting in surveillance sweeps.

Moreover, given the admissions by Strzok that he detested Trump and pondered ways of stopping him, and given that he and the FBI were never able to find Papadopoulos indictable on intended collusion charges, it is entirely unlikely that Papadopoulos prompted much of anything.

If he was not a dead end, then the argument could just as well be that an admittedly biased FBI agent hounded a minor, former Trump aide to find collusion, failed to find it, tried to turn him by the usual “false statements” perjury traps, and then Strzok or others around him leaked information about collusion investigations to damage the Trump campaign.

4) Other than Andrew McCarthy of National Review, few have written about the FISA-court application(s) for surveillance of Trump-campaign officials that the FISA court rejected in June 2016, shortly before Trump was nominated as the Republican candidate.

Given that 99.97 percent of FISA requests are eventually granted, why exactly did a federal judge quite extraordinarily reject an Obama-administration FBI-DOJ request? Was it too “broad” or insufficiently sourced in June? And what (or who) had changed by October, when a subsequent request was apparently granted? Was Strzok’s July investigation of Papadopoulos better grounds to surveille Trump associates? Was the dossier (which apparently became known to the FBI as early as June or July 2016) initially used to obtain a warrant, to no avail? Or was the dossier instead used first in October, on a subsequent attempt, and in this case the FISA court granted the warrant?

5) The talented, Trump-hating Peter Strzok was a sort of ubiquitous Zelig of FISA-gate and the most interesting of all the players named so far in the case. He probably convinced Comey to change the wording of his report on Hillary Clinton to prevent criminal liability. He may have started the whole shebang off by investigating George Papadopoulos. He texted away to his mistress and fellow FBI investigator Lisa Page the court secrets of the FBI and Mueller investigations, saying his gut sense was that there was “no big there there” to the entire effort. He interviewed Mike Flynn without Flynn’s lawyer being present, and he probably compared Flynn’s responses in that interview to FISA intercepts. He also met with Andrew McCabe to ponder ways to nullify the Trump ascendency. And unlike his far less talented superiors, he may have been careful to avoid strictly breaking the law.

6) Even less has been written about the Obama administration’s public attitude to the ongoing efforts of its own DOJ and FBI to seek FISA warrants to surveille Trump associates.

Trump (apparently tipped off to prior FISA surveillance of his campaign associates) presciently tweeted on March 4:

Nor have we learned the full nature of why and how Obama-era investigative agencies departed from normal protocol in exonerating Hillary Clinton from criminal liability during a number of 2015–16 controversies. Presumably there are records, official and otherwise, of these matters; they should come to light as soon as possible.

What seems clear is that the present hysteria about the Trump administration was already deeply seeded in the federal government throughout the 2016 campaign and the 2016–17 transition. A number of powerful Obama officials thought they had both moral right and the administrative means to nullify Trump. And they were not shy in breaking the law to exercise them.

NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution and the author of The Second World Wars: How the First Global Conflict Was Fought and Won, released in October from Basic Books.

Victor Davis Hanson — NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution and the author, most recently, of The Second World Wars: How the First Global Conflict Was Fought and Won.

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