DOJ Inspector General Michael Horowitz has disappointed us before. We need only recall his June 2018 report on actions of the FBI and the DOJ in connection with the investigation into Hillary Clinton’s use of a private server. The report concluded, “We found no evidence that the conclusions by department prosecutors were affected by bias or other improper considerations; rather, we determined that they were based on the prosecutors’ assessment of the facts, the law, and past department practice.”
Over the course of the Trump/Russia investigation, I have frequently followed the commentary of the National Review’s Andrew McCarthy. As a former U.S. Attorney, his vast experience is reflected in his analysis and he offers a perspective that many political analysts cannot. Which is why, after having read his latest article, entitled “The First Glimpse into Horowitz’s FISA-Abuse Report,” I’m left feeling a bit uneasy.
When CNN reported on Thursday night that their sources were saying the forthcoming IG report might find sloppiness, but would not find serious criminality or bias by FBI/DOJ officials, it was déjà vu. Specifically, it said, the report will “find mistakes in the FBI’s handling of the FISA process, but that those mistakes do not undermine the premise for the FBI’s investigation.”
In his most recent article, McCarthy explains how the unthinkable could actually happen.
First, McCarthy looks at who CNN’s sources might be. We know that over the last couple of weeks, Horowitz has been offering witnesses the chance to review the relevant portions of the report and to respond/rebut in writing. This is called the comment procedure and it is the final task to be completed before release. Former FBI Deputy Director Andrew McCabe is now a CNN contributor and former FBI top lawyer James Baker, who appears frequently on the network, are both witnesses and would have had access to their sections of the report. Could either of them be the source for the CNN report? Many CNN contributors are former government officials as well. So, CNN probably has a very good idea of what is contained in the report.
Assuming they do, is CNN’s downplaying of the findings accurate or is the network misrepresenting its conclusions to shape public perception?
McCarthy said the FBI claimed that the Trump campaign was complicit in Russia’s election interference.
Were there adequate grounds for suspicion of a Trump–Russia criminal conspiracy — enough to justify the FBI and the Justice Department in taking the fraught step of investigating the incumbent administration’s political opposition during a presidential campaign, exploiting such powerful counterintelligence measures as FISA warrants, the deployment of informants, and collaboration with foreign intelligence services against Americans who worked on the Trump campaign — the kinds of investigative techniques reserved for hostile foreign powers and terrorist organizations.
What was the FBI’s evidence — which it represented as verified information in the warrant application — that the Trump campaign was in a cyberespionage conspiracy with the Kremlin? What evidence led the Bureau and the Justice Department to allege that Carter Page — who as late as spring 2016 was apparently cooperating in a federal prosecution of Russian spies — was a willful agent of the Putin regime engaged in clandestine activities against his own country?
Prior to applying for the first FISA warrant to spy on Trump campaign advisor Carter Page (whom Trump had never even met), we learned through text message exchanges between then-FBI agent Peter Strzok and then-FBI lawyer Lisa Page, that there was one DOJ official, a lawyer in the DOJ’s National Security Division, Stuart Evans, who was not quite on board with spying on a U.S. citizen in October 2016. Evans had “continuing concerns” about “possible bias of the chs (confidential human source — a reference to Christopher Steele). Page told McCabe that this issue would be addressed with “a robust explanation.” McCarthy explains:
This was a reference to the laborious footnote that eventually made its way into the warrant application. The footnote omitted the facts that Steele’s work was being sponsored by Trump’s opponent in the campaign; that Steele had expressed desperation to defeat Trump; that Steele’s reporting had not, in fact, been verified; and that Steele had already been found to be wrong about basic facts (reporting, for example, that a hub of the purported Trump–Russia conspiracy was the Russian consulate in Miami — which did not exist). The warrant application, moreover, ended up including absurd representations that Steele was not providing his anti-Trump allegations to the press — notwithstanding the media blitz that Steele and Fusion had commenced in mid-September, one resulting article from which was actually relied on as evidence in the warrant application, even as it provided grist for the Clinton campaign’s “Putin puppet” attack on Trump.
To obtain a FISA warrant for an American target, the government must convince the court that the target is knowingly engaged in clandestine activities on behalf of a foreign power, and that the activities involve or may involve a violation of federal criminal law. Even though the Justice Department and FBI four times made such claims under oath about Page (in the original October 2016 warrant and three subsequent 90-day renewals), he has never been charged with a crime.
Regarding the warrant application, McCabe is on record saying that without using Christopher Steele’s dossier to provide “probable cause” for a warrant, a warrant would not have been issued. But McCarthy argues that “others have indicated that it was a 50–50 proposition, at best. It is impossible for us to make a judgment about this without knowing the totality of the non-dossier information.”
McCarthy writes that there were “attempts by Russian spies to recruit [Carter] Page as an asset between 2008 and 2013.” How will the FBI spin this information?
The government made much of this in the warrant application. Downplayed, however, were the facts that Page cooperated with the government in the prosecution of the spies; that the Justice Department used Page’s information in its arrest complaint; that Page submitted to numerous interviews by the federal investigators, including as late as spring 2016, when (according to Page) he was being prepared to testify as a government witness, which testimony became unnecessary when the spy pled guilty; and that the Russian spies against whom he cooperated regarded him as an “idiot” in communications intercepted by the feds.
Did the FBI tell the FISC everything it should have been told about the spy case? If so, what made the FBI believe that Russia, with its highly competent intelligence services supposedly in a high-stakes conspiracy with Trump, would trust as a key conspirator a man who (a) the Kremlin believed was incompetent and (b) had helped the U.S. prosecute the Kremlin’s operatives?
The FBI’s many interviews with Page are highly relevant. So is the fact that, while the FBI was pushing for the warrant, Page — in reaction to the Steele-generated negative publicity against him — fired off a letter to FBI director James Comey, pleading to meet with agents in order to assuage any concerns they might have about his contacts with Russians.
He points out that federal law would have required the FBI to explain why other, less intrusive methods would not work. Seeking a warrant on a U.S. citizen is a drastic measure and Page had done nothing but cooperate with the FBI for many years, going so far as testifying as a government witness against the Russians. Until the report is released, we have no way of knowing.
Here is the main concern:
No one is disputing that Russia interfered in the 2016 election. “But that does not mean that Carter Page and the Trump campaign were complicit as clandestine agents of the Putin regime.”
CNN reported that the warrant would have been issued even without the alterations made by the FBI lawyer, said to be Kevin Clinesmith. (We have no way of knowing if that’s true.)
Are the investigators and their media allies laying the groundwork to argue that, because Russia did interfere in the 2016 campaign, any “mistakes” in using FISA or other investigative tactics do not detract from the overall validity of the investigation?
If evidence tampering by a low-ranking FBI lawyer ended up making no difference to the validity of the Carter Page FISA warrants, that is hardly the stuff of scandal. It would be small-scale misconduct of the kind that unavoidably happens from time to time, and that the government has handled appropriately — by forcing the culprit out of the FBI and referring him to U.S. attorney Durham for possible prosecution.
On the other hand, if the Horowitz report is going to take the tack that, because Russia did in fact meddle in the 2016 campaign, any investigative overreach amounts merely to regrettable but understandable overzealousness, that would be a very big deal — and not in a good way.
The question is not whether Russia meddled. On four separate occasions, the FBI and the Justice Department solemnly told the FISC there were grounds to believe that Carter Page and others in the Trump campaign, potentially including Donald Trump himself, were complicit in a criminal conspiracy with the Kremlin. The question is: What was their compelling basis for making that explosive representation, which breached the American norm against government intrusion in our political process?
McCarthy’s concern is that the FBI and DOJ officials involved will be able to hide behind the fact that they were investigating Russian election interference and were just trying to be thorough. They never intended to sabotage President Trump for three years.
After everything we’ve learned about the efforts of the deep state to destroy Donald Trump and to subvert the rule of law, the thought that those most responsible for this national nightmare might escape justice is unfathomable. I never really considered it as a possibility. But, as I said earlier, Horowitz has disappointed us before.
If it were to happen, it would be a travesty of justice and America will be diminished for it.