White House

Respectfully Disagreeing with David French on FISA Abuse

Rep. Adam Schiff speaks to reporters about the Russia investigation on Capitol Hill, March 15, 2017. (Aaron P. Bernstein/Reuters)

With undiminished esteem for my friend David French’s legal acumen, I confess to being underwhelmed by his defense of the Schiff memo. I am going to explain why, but I first want to apologize for the length of this column, which owes to the fact that David’s observations provide an opportunity to address the political context of the congressional investigation, which I have not done much of. I appreciate David’s kind words about my analysis of the memo, and that his lukewarm approval of Representative Adam Schiff’s handiwork comes with a healthy dose of concern about government misconduct.

I also appreciate that we do not yet know everything we should know, and may never, which makes it impossible to draw definitive conclusions. But that hardly means we cannot draw any conclusions. The Justice Department sharply departed from its practice of providing courts with corroboration of serious allegations, and from its tradition of candor in dealings with the federal courts. It eludes me why it is so hard to acknowledge this just because we are at an information deficit and must navigate through a political maelstrom.

Investigations and Politics

There is no point complaining about the partisanship unavoidably attendant to this controversy. This is not, say, the financial meltdown or the Iraq War — disputed issues that were politicized unnecessarily, if predictably. This is an inherently political dispute: A situation in which the incumbent Democratic administration used its foreign-intelligence-collection authority to monitor the Republican presidential campaign, and did so making significant use of what David charitably calls “opposition research” from the Democratic presidential campaign.

With due respect, this is not a situation in which, out of the blue, “a congressional majority [has made] substantial charges of Department of Justice wrongdoing.” Against the backdrop of its blatant tanking of the criminal investigation against the Democratic presidential nominee, the Democratic administration’s Department of Justice went to the Foreign Intelligence Surveillance Court in the last three weeks of the presidential campaign to seek monitoring of a former adviser of the Republican presidential campaign — monitoring that would inevitably have revealed campaign communications in stored email and texts, and quite possibly in real-time conversations — based on a stated suspicion that there was a traitorous confederation between the Republican campaign (quite possibly including the Republican nominee) and the Putin regime.

That was a very “substantial charge” for the Justice Department to make. It is completely reasonable, then, to demand of it what David demands of the House Intelligence Committee’s allegations: a carefully researched presentation (in this instance, in a FISA warrant application) “that provide[d] supporting evidence for each and every inflammatory charge.” Certainly, it is fair to expect that of the Justice Department since (a) that is the standard to which the DOJ proudly holds itself, and (b) the DOJ and FBI typically work as a harmonious unit, unlike a congressional committee composed of sharply divided partisans in the throes of a highly charged political rift.

What the FBI and DOJ most wanted kept under wraps was the fact — and it is a fact — that they had obtained a surveillance warrant by relying on an unverified partisan screed.

Like David, I would prefer to see congressional committees write well-crafted, competing majority and minority reports. In the normal situation, however, this follows the amassing of evidence. Here, to the contrary, the FBI and Justice Department stonewalled the committee for months, grudgingly producing evidence only on pain of their top officials’ being held in contempt. When they did produce it, their claims of dire national-security consequences were exposed as overwrought. What they most wanted kept under wraps was the fact — and it is a fact — that they had obtained a surveillance warrant by relying on an unverified partisan screed, which proffered sensational, sinister claims, made by unidentified sources multiple levels of hearsay removed from the “fact” matters they were alleging.

The Nunes memo, for all the complaints about it, is not a mere “political instrument.” It is a part of an effort to pry information out of statutorily created agencies that oppose providing it to the body constitutionally empowered to check their work. The memo, inevitably, prompted a Democratic response. If not for the dueling memos, there would be no public evidence, and therefore nothing on which to base committee reports.

Unlike fervent Trump supporters, I do not condemn the investigation of a presidential campaign in principle. To the contrary, I have repeatedly said that, if there was strong evidence on which to base suspicions of Trump–Russia collusion, the Obama administration would have been derelict not to investigate. I also do not see this as a pro- or anti-Trump issue.

Let’s assume for argument’s sake that it turns out that there was no actionable Trump–Russia collusion, and that the FBI and Justice Department were overzealous in their investigation — the dubious FISA warrants, the Logan Act investigation of Michael Flynn, the predawn raid on Paul Manafort’s residence, etc. It would still be Donald Trump who brought into his campaign the likes of Carter Page, a jackass Kremlin apologist, and the duo of Manafort and Rick Gates, crooked collaborators with Kremlin agents. They were not planted by Barack Obama, Sally Yates, Jim Comey, Peter Strzok, et al. No matter how this turns out, we can already confidently say it is a disgrace that these characters were allowed anywhere near a presidential campaign.

That said, this was a presidential campaign, and one in which the Democratic candidate was given every break in the book to escape criminal liability despite daunting evidence. If major investigative actions were to be taken against Trump-campaign figures, there should first have been compelling, corroborated evidence (which is redundant, I know). If you want to gripe that this gives politicians a degree of immunity that others do not enjoy, that is fair — but in this system, they get it nonetheless.

To me, it makes no sense to simultaneously (a) condemn the House Intelligence Committee for not having slam-dunk evidence for its allegations, under circumstances where the agencies under investigation are custodians of the evidence and place severe limitations on what may be accessed and disclosed publicly; and (b) soft-pedal the facts that those same agencies, which operated under no such constraints, presented a federal court with allegations of traitorous conduct that were supported by patently suspect evidence, and failed to be transparent with the tribunal regarding the provenance of that evidence — especially under circumstances where they were before a secret court in a highly classified setting, and therefore had no valid reason to conceal from the tribunal information that was manifestly relevant.


Contested Facts

David bases his analysis on the flawed premise that the dueling memos establish five “uncontested” facts. But only one of his five assertions — the least important one — is uncontested. The others, as he states them, are either not facts or convey a woefully incomplete portrait of the facts. I’ll take them in the order he lists them:

1) The so-called Steele dossier formed at least part of the Carter Page FISA application. No, the point is not that the Steele dossier formed “at least part of the Carter Page FISA application.” The point is that it formed the most significant part. The fact that we have not seen the whole application does not mean I am speculating. The FBI’s then-deputy director, Andrew McCabe, testified that there would have been no warrant application absent the Steele dossier’s allegations. (That is reported in the Nunes memo and is unrebutted by the Schiff memo. It is also elucidated in the Grassley-Graham memo, which details the lack of corroboration).

2) The DOJ informed the court that the Steele dossier was commissioned by a person “likely looking for information that could be used to discredit” Donald Trump’s campaign. No, the DOJ did not inform the court that the Steele dossier was “commissioned” (David’s word) by a person described in the FISA application as “likely looking for information to discredit” Donald Trump’s campaign. The DOJ informed the court that Glenn Simpson (“the identified U.S. person”) was a researcher who the FBI “speculated” was “likely” looking for information to discredit Trump’s campaign. The DOJ studiously avoided mentioning who “commissioned” the dossier, which would have revealed that Simpson was working for the Clinton campaign and the DNC, whose lawyers had retained him. The DOJ similarly failed to disclose that Steele (“Source #1”), the person Simpson hired to find the discrediting information, had expressed contempt for Trump and a commitment to prevent his election.

3) The DOJ ultimately terminated Steele as a source and disclosed that termination to the FISA court. No, the DOJ did not terminate Steele. The FBI terminated Steele. I am not tendentiously quibbling with a harmless misstatement here — the distinction David has missed matters. Far from ceasing contact with Steele after the FBI terminated him, the DOJ, through one of its top officials, Bruce Ohr, continued to have contact with Steele — both person-to-person and through his wife, Nellie Ohr, a Fusion GPS contractor who collaborated with Steele on the dossier. The FISA court was not informed that the termination of Steele as an informant was not a termination of the receipt of his information. More importantly, the court was told only half the story about the reason for Steele’s termination — viz., that he had violated the media-contacts prohibition in his informant agreement. The court was not told that Steele had lied to the FBI about his contact with Yahoo News, notwithstanding that the FBI had previously represented to the court that Steele was not the source of a Yahoo News story — a story that had been pressed on the court as independent corroboration of Steele’s allegations despite the fact that Steele was the story’s main source. The Schiff memo implausibly denies that the DOJ offered the Yahoo News story as corroboration for Steele, but the Grassley-Graham memo demonstrates, by quoting from the FISA warrant application, that this is indeed what the DOJ did. (See memo p. 3, “the information contained in the September 23rd news article generally matches the information about Page that [Steele] discovered doing [his] research.”) This revelation that Steele lied to the investigators spurred Senators Grassley and Graham to refer him to the DOJ and FBI for a possible false-statements prosecution.

4) Four GOP-nominated judges approved or renewed the FISA warrant. That is an uncontested fact.

5) The investigation of the Trump campaign’s ties to Russia began months before the Page FISA application. Well, the investigation of the Trump campaign’s ties to Russia was opened in July 2016, about four months before the Page FISA application. The fact that an investigation was opened on the FBI’s books does not necessarily mean the Bureau took any meaningful investigative steps upon receiving information that George Papadopoulos had told an Australian diplomat that Russians might be peddling Hillary Clinton emails. (Papadopoulos was not interviewed by the FBI until late January 2017. Director of National Intelligence James Clapper was unfamiliar with Papadopoulos’s name when he left office at the end of the Obama administration.) It is clear that the FBI began receiving Steele’s explosive allegations in July, soon after Carter Page’s trip to Moscow, and obviously close to the time when the investigation was opened. The Schiff memo claims that the FBI’s “closely held investigative team” at headquarters did not learn about Steele’s allegations until mid September 2016. Clearly, in the weeks immediately following that, the FBI and DOJ prepared a FISA application for a warrant alleging that Page was an agent of Russia. By law, that would have required showing probable cause that he was knowingly engaged in clandestine activities that probably violated federal criminal law. Other than the unverified Steele-dossier allegations, there is no publicly known information about Page that would have supported such a finding. (See point 1, above.)

David says the five facts, as he understands them, “don’t show the existence of a scandal.” I respectfully counter that the facts as they have been more fully developed — including as laid out in the Grassley-Graham memo — clearly call for follow-up investigation. They are suggestive of the three things that David says would be scandalous: use of the Steele dossier by the DOJ in bad faith; material lack of candor with the court; and violation of the governing statutes.


Lack of Corroboration

A few observations about David’s remaining points.

I agree with David that it is foolhardy to contend “that use of the Steele memo in any capacity is scandalous.” I’ve noted any number of times that, in close to 20 years as a Justice Department prosecutor, I used information from numerous sources that were far, far more nefarious than political opposition research. But what makes such use appropriate is that, upon getting information from, say, a terrorist, a mafia murderer, a swindler, a jilted lover, or a political opponent with a powerful motive to smear the suspect, the prosecutor does not use it to seek court process until the FBI has independently verified it.

David stumbles over this fault line in admonishing that we must “never forget that ‘unverified’ is not the same thing as ‘false.’” Well, yes: It is forbidden to use false information. That does not mean using unverified information is proper — it is irresponsible. And the more distant the information is from being verified, the more it is in the nature of rank hearsay, and the more reckless it is to use it. Here, Steele, who has not been in Russia for 20 years, has sources, who have sources, who have sources. Everything is anonymous and third-hand — or even more attenuated. David says, “The question is whether it was reasonable for the DOJ to rely in part on the Steele dossier in its FISA application” (emphasis in original). Answer: It was unreasonable to rely on any part of the dossier that was unverified.

Steele, who has not been in Russia for 20 years, has sources, who have sources, who have sources.

Here, David’s reliance on Orin Kerr’s learned column on informant credibility (which I, too, recently discussed, here) is unavailing. Yes, it is a familiar doctrine of Fourth Amendment law that the use of improper information to obtain a warrant is harmless if the application contains other information that establishes probable cause. But, to repeat, the FBI’s deputy director conceded that the Steele-dossier allegations were needed for probable cause.

Relying on our mutual friend Buck Sexton, David points to a tantalizing Schiff-memo section that suggests that there was indeed independent corroboration. I agree with both David and Buck that Schiff’s three redacted bullet points in this regard should be disclosed unless it would cause some dire intelligence problem. Nevertheless, as I observed in my column, Representative Schiff has a warped conception of “corroboration,” so there is great reason to doubt him sight unseen. Further, Schiff’s claims must be weighed against the concession of the FBI’s former director, James Comey, that the dossier was not corroborated. From the Grassley-Graham memo (p. 2):

[I]n June 2017, former FBI Director Comey testified publicly before the Senate Select Committee on Intelligence that he had briefed President-Elect Trump on the dossier allegations in Janauary 2017, which Mr. Comey described as “salacious” and “unverified.”  . . . When asked at the March 2017 briefing [of the Senate Judiciary Committee’s chairman and ranking member] why the FBI relied on the dossier in FISA applications absent meaningful corroboration — and in light of the highly political motives surrounding its creation — then-Director Comey stated that the FBI included the dossier allegations about Carter Page in the FISA applications because Mr. Steele himself was considered reliable due to his past work.

Indeed, the documents we have reviewed show that the FBI took important investigative steps largely based on Mr. Steele’s information — and relying heavily on his credibility. Specifically, on October 21, 2016, the FBI filed its first warrant application under FISA for Carter Page. [There follows about line-and-a-half redaction.] The bulk of the application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier. The application appears to contain no additional information corroborating the dossier allegations against Mr. Page, although it does cite to a news article that appears to be sourced to Mr. Steele’s dossier as well.

There is every reason to believe that Steele’s information was not meaningfully corroborated.


Steele Was Not the Source

David principally cited Professor Kerr’s essay on the issue of Steele’s credibility. For the reasons I’ve addressed repeatedly, Steele’s credibility should have been irrelevant. The assumption in David’s argument is that Steele was the “source” in the sense we use that term in warrants. But he was not the source. He was the aggregator of information from the real sources. He stood in the position usually occupied by the FBI case agent, who is typically the affiant in a warrant application, relating information from and about the actual sources: the factual allegations they make based on first-hand observations, and the reason(s) why the court should find their allegations trustworthy. With a warrant application, what matters to a court is the credibility of these sources — the informant-witnesses.

The main dereliction was the failure to provide the FISA court with grounds to believe the actual sources were real, had a reliable basis to know the things they reported observing, and were credible.

The DOJ’s failure to make full disclosure of Steele’s biases against Trump is a completely separate problem (and one of the DOJ’s gratuitous making). The main dereliction was the failure to provide the FISA court with grounds to believe the actual sources were real, had a reliable basis to know the things they reported observing, and were credible.


Bias and Candor

Finally, I’m confused by David’s description of the second of his five facts, and his follow-on discussion of bias. As noted above, David uses the word “commissioned” to describe the role in the generation of the dossier performed by the “person” alluded to in the warrant. But that “person” is Glenn Simpson, who hired Steele; it is not Hillary Clinton (and her campaign and the DNC), who commissioned the Simpson/Steele dossier project. Mrs. Clinton’s campaign and the DNC were neither mentioned nor otherwise alluded to in the warrant application.

David contends that what the DOJ said — viz., that Simpson hired Steele to “conduct research regarding Candidate [Trump’s] ties to Russia,” and that the “FBI speculates that [Simpson] was likely looking for information that could be used to discredit [Trump’s] campaign — was sufficient to “communicate bias” to the court.

To be candid with a court, it is not adequate to communicate “bias” as a concept that connotes some generalized notion of hostility. Obviously, there are degrees of bias — you do not have the same animus for the guy who snores in the seat next to you on the plane, the guy you’re competing with for a promotion, and the boss who fired you. To evaluate the credibility of information, one must grasp the quantum of bias to impute to it under the circumstances. Here, the DOJ referred only to the bias of Simpson, the researcher hired by the identified U.S. law firm (Perkins-Coie). Not only was there concealment of the participation and deep bias of Trump’s rivals, Hillary Clinton and the DNC. The DOJ also concealed the professed animosity of Steele — the “source” of the unverified information — toward Trump. Moreover, the court was told that the FBI was merely “speculating” about Simpson’s “likely” bias, rather than that the FBI well knew of the deep-seated biases of the Clinton campaign, the DNC, and Steele.

To be candid with a court, it is not adequate to communicate ‘bias’ as a concept that connotes some generalized notion of hostility.

I am at a loss to understand how that could be thought a sufficient description of bias. Bear in mind that, unlike an ordinary federal criminal case, in which the judge knows that counsel for the defendant will eventually be able to examine and challenge the government’s warrant application, this was a counterintelligence case, meaning: The FISA court knows its searching review of the DOJ’s warrant application is the only due process an American alleged to be a foreign agent will ever get. The FISA judge thus justifiably expects the Justice Department to be appropriately transparent. It is, after all, a top-secret proceeding. Why would the DOJ restrict its disclosure of bias from a tribunal with which it is sharing the nation’s most closely guarded defense secrets?

So, I guess the question I’d ask David is this: If you were the assistant attorney general in charge of the Justice Department unit that presents surveillance warrants to the FISA court, and you were thus responsible for maintaining the Justice Department’s reputation for integrity with the FISA court, would you have approved the decision not to disclose the role of the Clinton campaign and the DNC, as well as Steele’s profession that he was “desperate” that Trump not become president?

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