The Inspector General of the Department of Justice, Michael Horowitz, recently released a report unappealingly titled “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation.” In its bureaucratic prose, larded with acronyms and unnamed actors, it lives up to its dreary title. (Oddly, the Mueller Report, by contrast, whatever one thinks of its content, was well and clearly written.)
The Report tells a tawdry tale of FBI agents obtaining electronic surveillance warrants on former Trump campaign operative Carter Page from the Foreign Intelligence Surveillance Court by concealing information and even lying in the warrant applications. It has become a sort of national Rorschach Test. Trump and his supporters acclaim it as confirmation of the claims that the long-running investigation of collusion between the Trump campaign was a politically motivated witch-hunt. On the other hand, #NeverTrumpers, prominently former FBI Director James Comey, claim vindication from such false accusations. How can that be?
The Report details 17 specific instances of misconduct in obtaining the warrants but says at pages 413-414 that:
“Although we did not find documentary or testimonial evidence of intentional misconduct on the part of the case agents who assisted NSD’s Office of Intelligence (01) in preparing the applications, or the agents and supervisors who performed the Woods Procedures, we also did not receive satisfactory explanations for the errors or missing information. We found that the offered explanations for these serious errors did not excuse them, or the repeated failures to ensure the accuracy of information presented to the FISC.”
So former Director Comey says the Report shows he and the FBI were not guilty of Treason or political bias and thus have been “exonerated.” Ironically the Trump supporters and #NeverTrumpers took exactly the opposite positions on the Mueller Report which concluded an absence of evidence of collusion between the Trump campaign and the Russians but also did not “exonerate” Trump of obstruction.
The Report does not say there was no political bias or intentional misconduct, only that there are no documents or statements directly saying as much.
The very detailed facts stated in the Report are sufficient to permit, but not require, anyone to draw an inference from circumstantial evidence that some of the misconduct was the intentional result of political bias. The only alternative explanation for the FBI is incompetence of truly staggering proportions. Intent is nearly always a matter of inference but as Justice Holmes once said, “Even a dog knows the difference between being kicked and being tripped over. It is a matter of intent.”
In the Report, the IG is careful not to draw inferences. That will perhaps ultimately be the task of a jury on evidence presented by U.S. Attorney John Durham who is conducting the criminal investigation of the same facts with tools not available to the Inspector General.
The Inspector General’s Report is confined to matters relating to the initiation of the investigation, the obtaining of four electronic surveillance warrants under the Foreign Intelligence Surveillance Act (FISA) on Carter Page and the role of the “Steele Dossier” in obtaining the warrants.
The Steele Dossier has been described here in numerous earlier posts, going back three years starting with CNN’s “Fake News”, posted in January of 2017. Even that post noted that the FBI did not consider the ultimate “tertiary” sources reliable. The Steele Dossier was a series of reports on contacts between Trump and his campaign officials with Russians. It was commissioned by the Clinton campaign through its attorneys, so the funds spent on it were concealed in campaign finance reports as “Legal Expenses.” The campaign hired FusionGPS, which in turn hired Christopher Steele, a former MI-6 agent turned private investigator.
Clinton and FBI apologists always point out that FusionGPS was originally hired by a Republican primary opponent of Trump to do opposition research. That much is true but Steele was not hired until later when FusionGPS was working for the Clinton campaign. Steele related no information known to him. He relied on Primary SubSources known to him, who related information from tertiary Secondary SubSources who provided the information. As I reported back in January 2017 much of the information reported by the Secondary SubSources was café gossip. The Dossier also included reports of meetings between Russians and Carter Page.
Fiona Hill, an academic who has served under several Presidents and is no Trump apologist testified at Adam Schiff’s impeachment hearing to warning Ambassador Sondeland about the dangers of Rudy Giuliani’s persistent quest for a Ukrainian investigation of the Bidens. She also testified that those claiming Ukrainian interference in the 2016 election were promoting “politically driven falsehoods that so clearly advance Russian interests.” Most significantly though, she testified that the Steele dwas likely a product of Russian disinformation. The goal of the Russians, she said, was not to elect Trump but, at a time when Hillary Clinton’s election was considered a certainty, to discredit the Presidency, whoever was elected. In that, they succeeded beyond their wildest dreams. The Democrats and their allies in the media have been the Russians willing dupes.
The FBI and DOJ required facts in FISA applications to be “scrupulously accurate” for the obvious reason that electronic surveillance on an American citizen was going to be authorized in secret by judges who had no other source of information. Evidence that contradicted or undercut the facts asserted in the application was required to be included.
The counterintelligence investigation, dubbed “Crossfire Hurricane,” into collusion between the Trump campaign and the Russians was started after an Australian diplomat reported a conversation with a low-level Trump campaign staffer named Papadopoulos in which the latter told him the Trump campaign was going to get Clinton emails from the Russians. Some of the information they had been that Carter Page had been engaged in meetings with Russians. They concluded, however, that there was not enough to get a FISA warrant on Page.
Then the FBI agents came into possession of the Steele Dossier through Bruce Ohr, a DOJ lawyer whose wife worked for FusionGPS. Steele and FusionGPS had been trying unsuccessfully to peddle the Dossier to various media outlets to help the Clinton campaign. When the agents presented information from the Dossier to the FBI and DOJ lawyers, the latter concluded there was sufficient information to obtain a FISA warrant on Page. Of the 17 specific instances of misconduct by omission or misrepresentation cited by the IG, some were:
- The information presented to the Office of Intelligence lawyers (OI) who drew up the FISA application included information suggesting that Steele was a reliable source but excluded much information that he was not very reliable, particularly on the subject of the Trump campaign.
- By the time of the second, third and fourth applications, the agents had interviewed the SubSources in the Dossier who disputed and contradicted the statements imputed to them by Steele in the Dossier. This was concealed from the OI attorneys drawing up the application.
- The agents knew but did not tell the lawyers that Papadopoulos had denied any contact between the Trump campaign and the Russians.
- The agents did report statements by Papadopoulos in his recorded interview that fit their theory but did not report those that did not.
- The agents knowingly and falsely reported to the lawyers that Steele was not the source of a story in Yahoo News, enabling it to be argued as “corroboration” for the Dossier.
- The agents knew but did not tell the lawyers that Carter Page, at the time of suspicious meetings with Russians had been approved as an “operational contact” for an American intelligence agency. That is, the other agency considered Page reliable and he had reported his meetings to them. This information completely debunked the basis for the FISA warrant and its importance was well known to the agents who provided the information to the lawyers.
- Indeed in connection with the final FISA application an OI lawyer specifically asked the FBI if Page had been a source for the other agency. A lawyer in the FBI Office of General Counsel altered an email to insert the words “not a source” to convey exactly the opposite of the truth.
Many of these details have been leaked over time and are no great surprise. In January of 2018 the House Intelligence Committee under then-Chairman Devon Nunes issue on FISA abuses by a few individuals. Among other things the Report revealed that the Steele Dossier was essential to the issuance of the FISA warrants and that information undermining the credibility of the Steele Dossier was kept from the FISA judges. This report was the subject of The House Intelligence Memo: Damning Details on February 2, 2018. Chairman (now Ranking Member) Nunes says that everything in the Inspector General’s Report was known to the Committee at the time, except for the interviews with the ultimate SubSources in the Steele Dossier in which they disputed the statements attributed to them in the Dossier. Nunes, of course, would very much like to have had this information at the time.
Ranking Member (now Chairman) Adam Schiff denied both that the Steel Dossier was central to the FISA warrant application and that relevant information was kept from the judges. In an interview after release of the IG Report, Schiff conceded that the Dossier was unreliable but central to the applications and that the FBI had acted improperly in obtaining the warrants. He says that he did not know these things back in January of 2018 when he defended the FBI and the warrants, but, of course, he had exactly the same information as Chairman Nunes.
In The House Intelligence Memo: Damning Details, I wondered why the FISA Court had not taken any action on the House report of the misrepresentations made to it. Finally a week after the IG Report, the FISA court Chief Judge has issued several secret orders and a public memo condemn the FBI for its omissions and misrepresentations. The Chief Judge says those misrepresentation call into question, all other FBI applications and ordered corrective measures. A secret order dated December 5 appears to suggest future trouble for the FBI lawyer who altered an email to cause a false statement to be made to the court. There may, indeed there should be, other sanctions applied by the Court.
James Comey, as noted above, claims that the Report “exonerates” him from any criminal activity in connection with the investigation. He concedes FBI “mistakes” but denies any prior knowledge of them. The nature of the Crossfire Hurricane investigation was such that the top echelon of the FBI was kept informed of its details. The facts recited above and known at the time of the first FISA application were known or certainly should have been known to Comey when he signed off on its veracity. True the Report states there was no “testimonial or documentary” evidence of improper intent. There is still the question of whether adverse inferences may be drawn from the facts in the report.
The completion of the ongoing criminal investigation into Crossfire Hurricane by U.S. Attorney Durham may tell the American people, in Justice Holmes metaphor, whether they have been kicked or tripped over.