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Law & the Courts

I Read the Grassley Memo, and I’m Still Not Outraged at the FBI

I’ve read every memo I can read. I’ve read thousands of words of commentary about every memo that I can read. I’ve read the best writers and the worst writers. I’ve read along as my peerless colleague Andrew McCarthy has guided Americans through the ins and outs of federal criminal and counterintelligence investigations like a Sherpa helping tourists summit Everest. He’s the Apa Sherpa of Russia punditry.

But I’m not outraged. Not yet. Here’s why.

I’m with Trey Gowdy on the most consequential issue. Nothing revealed so far should impact the Mueller investigation. As he said very clearly, “There is a Russia investigation without a dossier.” He’s right. He’s clearly articulated at least some of the reasons why — the dossier had nothing to do with George Papadopoulos, nothing to do with Donald Jr.’s meeting with Russians in Trump Tower, and nothing to do with obstruction of justice. But the list could go on. The dossier had nothing to do with with the existence of an apparent Russian effort to help Donald Trump. It had nothing to do with Trump’s decisions to surround himself with advisers like Papadopoulos, Page, Paul Manafort and Michael Flynn — people who each proved to have problematic ties to the Kremlin or Kremlin allies.

The dirty little secret of much of the outrage over the FISA-Gate is that roughly 90 percent of the fury isn’t over a “revelation” that the FISA program is a rubber-stamp threat to civil liberties (“Where y’all been?” asks Reason magazine), but rather over the conviction that a finding of misconduct in this one aspect of the much larger investigation should somehow discredit the whole. Gowdy says no. I agree. 

Moreover, FISA-Gate isn’t evidence that the FBI tried to stop Trump from winning the election. Let’s get real about this, please. It’s hard to impact the public debate with secret investigations. In fact, these memos only reaffirm something Democrats have complained about for more than a year. There was a flurry of FBI activity related to the Trump campaign, and it was almost entirely hidden from public view prior to the election. After reading the Nunes memo, that sound you heard was the sudden wailing and anguish of millions of Democrats wondering why the FBI made sure that the entire world knew chapter and verse of Hillary’s extreme carelessness in her handling of “very sensitive, highly-classified information” the very same month that it quietly opened an investigation of possible connections between the Trump campaign and Russian operatives. 

While I believe the FBI should have recommended prosecution for Hillary, one thing is certain — it made a choice to make its objections to Hillary’s conduct public. It chose to publicly announce the re-opening of its email investigation in the weeks leading up to the election. Both of these actions were instrumental in further damaging Hillary’s already-tarnished public image. It’s hard to look at those public statements and conclude that the FBI was out to stop Trump.

Now, let’s look at some questions raised (rather than answered) by the Nunes/Grassley memos:

First, do the relevant judges believe they were misled? There is no shortage of commentators authoritatively opining on whether the FBI materially misled the FISC. Does the court agree? As others have noted, Rule 13(a) under the Rules of Procedure for the Foreign Intelligence Surveillance Court requires the government to “immediately” inform the judge if any submission contains a “misstatement or omission of material fact.” Rule 5(c) permits the judge to “order a party to furnish any information that the judge deems necessary.”

Have the judges who reviewed the relevant applications asked for corrections or additional information? Have judges issued any orders to show cause why the government hasn’t made corrections under Rule 13(a)? These are important questions in determining whether the court believes the DOJ has committed acts of misconduct. I’ve seen what happens when federal judges believe agents of the government have misled them, and it would go a long way towards settling the public controversies if the court itself has weighed in.

Second, how much of FISA-Gate is a Christopher Steele/Clinton scandal and how much is an FBI scandal? In reading the Grassley memo, it seems that the FBI’s October 2016 FISA application was allegedly twisted by a Steele deception, not a government deception. Steele provided the dossier and was the source for a Yahoo News article which contains some of the same dossier information. The FBI allegedly stated that it did not believe (at the time of the application) that Steele had provided that information to the press.

If this is true, then it colors the analysis considerably. If a trusted former British intelligence official comes forward with information that seems to have some independent corroboration, then it’s far easier to make a good-faith argument that sufficient legal justification exists for a warrant than if part of that “corroboration” is fictional. Moreover, the Grassley memo provides evidence that the FBI seemed to believe (unless it was lying to court) even months later that Steele was not the source for the Yahoo article.

Third, were any FBI omissions or misstatements actually of “material facts”? Let’s discuss for a moment the alleged failure to inform the FISC that the funding for the Steele dossier came from the Clinton campaign. The Grassley memo acknowledges that the FISA application disclosed the dossier’s so-called “political origins.” Others have argued that disclosing political origins without defining those origins is a material omission. I’m skeptical. Judges aren’t idiots, and they know that damaging dossiers don’t typically come from a candidate’s political friends. Moreover, if a judge thought the identity precise political client was “material,” he could easily ask for the information.

Similarly, without seeing the precise language of the FBI’s multiple disclosures regarding Steele’s credibility problems — especially as contrasted with Steele’s actual testimony — it’s again very difficult to judge the FBI’s actions. The FBI disclosed that the dossier had political origins. It disclosed that Steele had credibility issues. Critics argue that the disclosures were insufficient. Perhaps. Perhaps not. 

Presently we’re left with entirely unsatisfactory, partial information. I want to see the FISA applications. I want to see any orders from the FISC. I want to see the Democratic memo. I want to see the underlying evidence — all with only the most minimal redactions that are absolutely necessary to protect national security.

Important people are using phrases like “worse than Watergate” to describe a “scandal” that so far hasn’t even been proven to be all that scandalous. It’s going to take more than two GOP memos (one partially-redacted) to convince me that I should be alarmed. Let’s see the evidence, and let the chips fall where they may.


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