Ball of Collusion

by Andrew C. McCarthy

  See, if the government is conducting a criminal investigation, it is supposed to proceed under criminal-law authorities. In the statutes and rules governing those authorities, Congress has incorporated significant due process protections for those under suspicion. Criminal investigations implicate our fundamental rights to liberty and property—sometimes, even life. The Constitution thus safeguards us with presumptions of innocence and privacy. The government can overcome them only by proving to a court, and ultimately a jury, that we have committed serious offenses. Counterintelligence law circumvents these protections. We indulge that circumvention for three reasons: (1) national security is potentially threatened, (2) the main target of suspicion is a foreign power with no constitutional rights, not an American citizen; and (3) the objective of the investigation is to collect intelligence to protect our nation from the foreign power, not to build a criminal case in which the liberty and property of American citizens are imperiled.

  But what if counterintelligence were invoked pretextually? What if the foreign power were just a guise for investigators, in effect, to end-run our constitutional protections—to conduct a criminal investigation without a predicate crime, without just cause?

  Based on this fear that FISA could be used pretextually to conduct criminal investigations, the Clinton Justice Department imposed “the Wall.” Unlike the Wall of President Trump’s imagining, President Clinton’s was metaphorical. To prevent investigators from exploiting FISA to steer criminal investigations, a regulatory barrier was imposed between the FBI’s counterintelligence agents, on one side, and criminal investigators and prosecutors, on the other. It became practically impossible for the two sides to cooperate and share information.

  One result was the desired clamping down on potential FISA abuse. But the cure proved worse than the disease. With counterintelligence and criminal investigators unable to compare notes and build an intelligence mosaic, the left hand no longer knew what the right hand was doing. This enabled terrorists to escape detection. Inevitably, catastrophes would occur, such as 9/11.

  After 9/11, the Wall was razed. Your humble correspondent was among the loudest celebrants, but that celebration seems unbecoming now. Back then, it seemed ridiculous to believe the FBI and the Justice Department would resort to FISA pretextually. I posited that, even if we assume a rogue agent who was determined to conduct a criminal investigation despite the absence of a factual predicate (i.e., evidence connecting the suspect to a crime), it would be far easier for the rogue to fabricate the evidence needed to get a criminal wiretap than to fabricate a national-security angle so he could use FISA. I insisted that if the rogue tried to go the FISA route, he’d never get away with it. FISA is a whole different FBI/DOJ chain of command. It has too many levels of scrutiny in the upper ranks of the bureaucracy—responsible superiors who would stop the rogue agent in his tracks before that agent ever got near FISA’s specialized court.

  I was wrong.

  What I didn’t factor in was the possibility that, for political reasons, the upper ranks of the FBI and Justice Department might decide to do an investigation by themselves. That should never happen. The Justice Department and the FBI generally ensure that each investigation is conducted by the Bureau’s field office located in the district where the crime occurred or the threat emanates. As a matter of law, this satisfies constitutional requirements.2 As a matter of prudence, it insulates investigations from the intense political pressure of Washington, home to Main Justice and FBI headquarters. Moreover, it clarifies the role of headquarters, improving its capacity to supervise and enforce policy in a detached, effective manner.

  In almost every investigation, and particularly in high-profile, highstakes investigations, investigators are motivated to be aggressive, to press the margins of their authority. It happens to the best prosecutors and agents. You become convinced that your bad guys are the worst bad guys in the history of bad guys. You rationalize the expedience of corner-cutting and rule-bending as promoting what seems to you to be the higher public interest of neutralizing bad actors. After all, the bad actors are your problem, the immediate problem. You understandably see your main job as stopping them. Somewhere in the back of your mind, you know you should be mindful of lofty concerns about the system of justice, the presumption of innocence, and the Bill of Rights. But right now, they are not your focus—someone above your pay-grade worries about that stuff.

  Well, that someone is headquarters. The bosses are supposed to be the cooler heads, elevated from on-the-ground investigation. They are there to protect the system, to prevent abuse—to police the police, not conduct the investigations.

  Nevertheless, in Russia-gate, headquarters became the investigator. And headquarters may be headquarters, but when it is handling an investigation, its prestige and wealth of experience does not make it any more immune from the temptation to run roughshod over the rules than any other set of aggressive investigators. The only difference is that when headquarters starts to run roughshod, there is no one there to say, “No, we don’t do that.”

  Just as ordinary field office investigators are tempted to keep their supervisors in the dark when they are ignoring a norm or blowing out a guideline, top rungs of the Obama Justice Department and FBI convinced themselves that they needed to work outside the system in order to safeguard the system. They decided that one presidential candidate posed a grave threat. They forgot who the sovereign is. They persuaded themselves that they were not engaging in politics but instead shielding vital institutions. They decided that because their hearts were pure, the rules needn’t hold them back. They withheld information from Congress—declining to brief the Gang of Eight, rationalizing that the “sensitivity” of investigating the incumbent administration’s political opponents in a presidential campaign justified a defiance of oversight—concealing what they were doing from those sure to object. They withheld essential information from the FISC about the source of their information (the Clinton campaign), and about the apparent unreliability and deep bias of their main witness (Christopher Steele), even as their presentation of unverified allegations flouted FBI guidelines.

  Headquarters exists to prevent investigators from such abuses. But here, headquarters became its own supervisor. Such arrangements tend not to end well.

  Final FISA Warrant Preparations

  As Election Day neared, the Clinton campaign stepped up efforts to call voters’ attention to the Trump–Russia narrative, which Steele—simultaneously the campaign’s agent and the Obama administration’s informant—was vigorously thrusting on the FBI and the State Department.

  On September 19, James Baker, the Bureau’s general counsel, rendezvoused with Michael Sussmann, the lawyer for Perkins Coie—the firm representing the Clinton campaign and DNC, which were then pushing the anti-Trump dossier on FBI investigators, through Steele.3 It was an extraordinary meeting in the campaign stretch-run. Sussmann, a former prosecutor, was obviously well aware that FBI counsel are advisers who avoid becoming entangled in the physical handling of evidence. Yet, he initiated contact with Baker and supplied him with documentation, including some on computer storage devices—transparently calculating that evidence passed on to agents by the Bureau’s general counsel would get prompt attention. The information related to, among other things, the purported Alfa Bank scheme—the claim that Donald Trump had established a communications back-channel with the Kremlin.4 Recall that the Alfa Bank claim was also pressed by Glenn Simpson on the Justice Department’s Bruce Ohr, and Clinton campaign adviser Jake Sullivan touted it as potentially “the most direct link yet between Donald Trump and Moscow.” Baker knew that Sussmann was peddling the same information to The New York Times.5

  Baker, who would soon review and green-light the FBI’s application for a FISA warrant to surveil Carter Page, accepted the documentation, even though he later told Congress, “I was very uncomfortable handling evidence.” He got over his discomfort, though, not only taking Sussmann’s submission (and follow-u
p calls), but also accepting Steele’s dossier reports from his longtime friend, David Corn, the reporter from left-leaning Mother Jones.6 It was through Corn that Steele went public with his role in the FBI’s Trump–Russia investigation, a week before the 2016 election (in a fit of pique that the FBI had publicly reopened the Hillary Clinton emails investigation while it was remaining mum about the Trump–Russia investigation that depended on Steele’s corruption allegations).7 Baker’s meetings, like Justice Department official Bruce Ohr’s earlier meeting with FBI Deputy Director McCabe and his counsel Lisa Page, illustrate what the House Intelligence Committee later found: senior Justice Department and FBI officials were aware that the political origins of the Steele dossier traced to the Clinton campaign and the DNC.8

  Meanwhile, Michael Isikoff’s September 23 Yahoo News article was followed like clockwork by a Clinton campaign statement bewailing Trump adviser Carter Page’s “chilling” ties to the Kremlin. Echoing Isikoff’s reliance on the Steele dossier information it had sponsored, the campaign expressed shock that Page would meet with Igor Divyekin, “who is believed by U.S. officials ‘to have responsibility for intelligence collected by Russian agencies about the U.S. election.’” After all, Clinton’s flack added, “Russian hackers continue their attempts to influence the outcome of our elections, something Trump openly invited” (an apparent but detail-free reference to Trump’s press conference quip that he hoped Russia would find the thirty-thousand-plus emails Mrs. Clinton had withheld from the State Department).9

  The bad publicity prompted the Trump campaign to distance itself from Page. Apoplectic, he fired off a letter to FBI Director Comey, requesting that the Bureau promptly end its reported inquiry regarding his July trip to Russia.10 Page emphasized that the report (based on Steele’s signal allegations) was false: “[F]or the record, I have not met this year with any sanctioned official in Russia,” even though doing so would not have violated the law. He further informed the director that he no longer had an investment stake in Gazprom, having divested “a de minimis equity investment” by selling it “at a loss.” Page expressed bewilderment that his holdings and transactions were of any relevance, since they, too, were lawful. After belittling the media reporting about his trip as “preposterous,” Page closed with this:

  Having interacted with members of the U.S. intelligence community including the FBI and CIA for many decades, I appreciate the limitations on your staff’s time and assets. Although I have not been contacted by any member of your team in recent months, I would eagerly await their call to discuss any final questions they might possibly have in the interest of helping them put these outrageous allegations to rest while allowing each of us to shift our attention to relevant matters. Thank you in advance for your consideration.

  Page was not done. In speaking with a plethora of journalists who’d contacted him after the Isikoff article, he’d been told that the Clinton campaign was pushing the narrative of his central role in a Trump–Russia espionage conspiracy. In a subsequent letter to the Organization for Security and Co-operation in Europe, he related that he had learned, from what he described as a “reliable source,” that “a law firm close to the Clinton campaign has hired a London-based private investigator to investigate my trip to Russia.”11 Even before Steele went public, the Clinton campaign’s use of Perkins Coie to retain him (through Fusion) for a project aimed at attacking Mrs. Clinton’s political opposition was so widely known that even Page had heard about it. Yet, Democrats would have us believe neither Steele nor FBI headquarters were aware of it.

  There was disquiet at the FBI, too. Although Peter Strzok would later disclaim any involvement in FISA warrant applications, an October 11, 2016, text was later found in which he reported to Lisa Page that he was “currently fighting with Stu for this FISA.” “Stu” appears to be a reference to Stuart Evans, a deputy assistant attorney general for the Justice Department’s National Security Division. Clearly, Justice was concerned about the Carter Page FISA—specifically, about Steele: Did the application being drafted adequately disclose the extent and nature of his bias? Did his flagrant bias undermine the required probable cause showing that Page was a clandestine agent of Russia?

  Tellingly, when the FBI was first forced to disclose the texts, the words “Stu for this FISA” were redacted. Congress and the public were told only that Strzok was “currently fighting with” … and the rest was blacked out.

  The following day, Lisa Page texted her boss, Deputy Director McCabe, to report that the Justice Department had now been given “a robust explanation re any possible bias of the chs [the confidential human source—Steele]” but that there was still a “holdup” due to “Stu’s continuing concerns.” We will soon come to the likely subject of those “concerns”—a laborious footnote about Steele in the FISA warrant application, which hid more than it explained about the former spy’s anti-Trump bias. Page told McCabe that there was a “strong operational need to have in place before Monday if at all possible”—i.e., that Strzok had investigative reasons to push for court approval of the FISA warrant prior to Monday, October 17 (for “insurance policy” purposes—note that if the ninety-day warrant were approved before October 20, it could be renewed for another ninety days right before Trump and his new Justice Department team took office, in the unlikely event he won the election).

  Page had told Stu that McCabe and “boss” (presumably, Director Comey) had given the “green light.” She lamented, though, that her own voice was not enough: “a high-level push”—i.e., direct contact by McCabe to Evans—would be needed to get the warrant application approved by the Justice Department. Later that day, Page told McCabe, “If I have not heard back from Stu in an hour, I will invoke your name to say you want to know where things are.” Page appears to have spoken with Evans that evening, but the issue was not resolved. On October 14, Strzok told Lisa Page they still needed some “hurry the F up pressure” from FBI higher-ups.12

  At this delicate juncture, the last thing Strzok would have needed was more damaging evidence of Steele’s bias. Yet that is what he got. Recall that it was on October 11 that the State Department’s Kathleen Kavalec interviewed Steele. She shared with the FBI the notes she had taken, indicating that (a) Steele’s report of the Trump–Russia conspiracy’s use of a Russian consulate in Miami had to be false because there was no such consulate; (b) Steele said he was managing the relationship with media outlets (including The New York Times and The Washington Post) which were in possession of some of his information; and (c) Steele was anxious for his anti-Trump allegations to be made public before Election Day. It is highly unlikely that these assertions, so patently germane to Steele’s competence, credibility, and bias, were shared with any of the Justice Department officials who were troubled by Steele. They certainly do not appear to have been shared with the FISC.

  FISA Warrants: Probing Trump Ties to Russia

  On Halloween, Donald Trump got a treat. The New York Times reported that, despite much investigation, the FBI had not been able to link his campaign and his associates to Russia’s cyberespionage operations aimed at influencing the 2016 campaign. Unbeknownst to the candidate, though, the trick had come ten days earlier: On October 21, the Obama Justice Department and the FBI obtained a FISA warrant from the FISC. Election Day was less than three weeks away.

  The warrant, targeting Carter Page, was the first of four ninety-day warrants. For nearly a year, the FBI would monitor Carter Page’s communications with whomever he was, or had been, in contact.

  When the warrant was first sought, and each time it was reauthorized, the FBI first described the Kremlin’s hacking of Democratic emails and other cyber tactics to the court. Then, an agent asserted under oath:

  [T]the FBI believes that the Russian Government’s efforts [to influence the 2016 election] were being coordinated with Page and perhaps other individuals associated with Candidate #1’s campaign.

  “Candidate #1” was Donald Trump. Candidate #1’s campaign was bein
g run by Donald Trump. This is the critical fact that must always be borne in mind in any consideration of the Obama administration’s use of the unverified Steele dossier as the predominant basis for seeking warrants to surveil an American citizen and an American political campaign.

  The investigation was about Donald Trump.

  He was never referred to by name as a “subject of the investigation.” Indeed, technically speaking, it is a misnomer to speak of “subjects” of a counterintelligence investigation. Subject is a term of art in criminal investigations, referring to a person whose conduct is being evaluated by the grand jury for possible indictment. The purpose of a counterintelligence investigation is not to build a criminal case; it is to detect and thwart the threatening designs of foreign powers. The only real subject of a counterintelligence investigation is the foreign power—here, Russia.

  Such legal niceties, however, are of little relevance when the exercise is pretextual. The Trump–Russia investigation was conducted under the guise of counterintelligence, but it was always a criminal investigation—a probe of a suspected espionage conspiracy—for which investigators lacked an adequate factual predicate.

  To obscure this reality, the Obama administration’s defenders posit two arguments: (1) Carter Page was not actually a member of the Trump campaign at the time the FISA surveillance began; and (2) the investigation was not really about Trump but about people in the orbit of the campaign (Page, Manafort, Gates, Papadopoulos, Flynn) who might have been infiltrating it on behalf of Russia.13 Collectively, these claims are contradictory; individually, they are laughable.

  First the contradictions. If the surveillance of Page was justifiable because he was no longer formally a campaign adviser (i.e., if the surveillance was consistent with the American norm against using government surveillance powers to monitor a political campaign), then how can it have helped the Bureau determine whether people who were in the campaign’s orbit were acting as agents of Russia? If the FBI was worried about Russian infiltration of the Trump campaign, why monitor a guy who was no longer in a position to infiltrate? And why tell the court, in no uncertain terms, that Page was “coordinating” in Russia’s cyberespionage in conjunction with other individuals associated with the Trump campaign? Absent seeing Page as “associated with the campaign,” the warrant makes no sense. FBI agents had been dealing with Carter Page and his Russian contacts for years; they didn’t accuse him of being a clandestine agent of the Kremlin until he joined the Trump campaign.