Fifth, Democrats who have tried to defend the FISA warrant application comically highlight a damning assertion as if it were his home run: “The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1’s campaign.” This vague statement, they claim, was adequate disclosure of the dossier’s political motivation. But the statement is patently deceptive. It was simply not true that the FBI had to “speculate” that a political motive was “likely” involved; the FBI knew to a certainty that a very specific political motive was involved. Nearly three months before the warrant application was submitted, Justice Department official Ohr told the FBI that Simpson was working for Fusion on an anti-Trump research project for the Clinton campaign and the DNC. Ohr had also met personally with Simpson on August, and then passed his allegations about Trump to the FBI. When you know X is true for a specific reason, it is misleading to speculate that X may be true for some potential reason.
Steele’s Credibility
The dense footnote, in which the Justice Department and FBI obscured the dossier’s Clinton campaign and DNC origins, also undertook to dismiss significant issues related to Steele’s personal credibility and reliability—mainly by the more traditional subterfuge of omitting material information, though there was plenty of circumlocution, too. These problems got more acute over time, and thus later iterations of the footnote became more farcical.
It is truly astonishing that Democrats and other defenders of the FISA warrants contend with a straight face that Steele’s contempt for Donald Trump was sufficiently disclosed because the footnote conveys a political motivation “to discredit [Trump’s] campaign.” But even that drastically watered-down description is not attributed to Steele; it is attributed to Simpson (“identified U.S. person”—not “Source #1”—“was likely looking for information that could be used to discredit Candidate #1’s campaign”). There is no description of Steele’s personal motivation. The footnote refers to Steele’s “reason for conducting the research into [Trump’s] ties to Russia”; but the only reason described is Simpson’s “likely” political motivation. There is no discussion of Steele’s own political or personal biases. Rather, the footnote merely assures the court that Steele’s reporting has “been corroborated and used in criminal proceedings” and that the FBI has “compensated” him, assesses him to be “reliable,” and “is unaware of any derogatory information pertaining to” him. The footnote then moves on to Steele’s methodology for collecting information.
This is another indication of a flaw we’ve previously noted: the FBI regarded Steele as a fellow investigator, whose biases were suppressed by his professionalism. He was not treated as an informant whose biases had to be factored in and accounted for. There is no disclosure that he despised Trump, professed desperation that Trump not be elected, and was unabashedly hopeful that all his allegations would be disclosed by Election Day—under circumstances where it was evident that, as a political partisan working for the opposition campaign, he had begun disclosing these allegations through the media.
The footnote’s assertion that Steele’s “reporting has been corroborated” did not make clear that the FBI meant only his reporting done in the past. To be sure, Steele’s “previous [reliable] reporting history” and the prior use of his information in criminal proceedings (apparently, the FIFA soccer case) were referenced. But it was not made clear that his Trump–Russia information had not been corroborated.
The disclosure that Steele had been “compensated” by the Bureau does not appear to explain that he was formally signed and indoctrinated as an FBI informant (there are redactions, so it is not possible to say for sure). That is a minor matter. What’s major are the assertions that Steele was reliable and unsullied by “derogatory information.” By October 21, the FBI had been receiving Steele’s reports for nearly four full months, and his major allegations remained unverified. Just days earlier, it had been brought to the FBI’s attention that Steele had identified a non-existent entity (the Russian consulate in Miami) as a hub of the purported Trump–Russia conspiracy—a foundational error that the dossier indicates Steele had been reporting for weeks. The Bureau, meanwhile, had had months to run down Steele’s sources and learn that some of the most critical ones either were not positioned to know the information sourced to them (e.g., Millian) or could be peddling disinformation (Surkov and Trubnikov). Plus, Steele was advocating for, apparently doing paid work for, and getting information about Russia from Oleg Deripaska—an oligarch and Putin confidant (and one whose connection to Paul Manafort was among the reasons the Bureau had made Manafort a suspect in the collusion caper).
The footnote’s description of Steele’s methodology makes one wonder what the FISC was thinking about. The judges were told that Steele tasked his “sub-sources” to collect information, which they transmitted to him for forwarding to Simpson. It is the observations of these “sub-sources” that are offered to the court to show probable cause, but the sub-sources are not identified, nor is the court given any reason to credit them—or even told how many hearsay links stretch between the alleged fact, a sub-source’s acquisition of it, and the communication of it to Steele. Everything rests on Steele’s purported reliability—even though he did not make a single relevant observation.
Finally, it was blatantly obvious that Steele was leaking to the media. For those of us who admire the FBI, the legerdemain on this score is truly embarrassing.
First, we must note that the application relies heavily on Isikoff’s Yahoo News article while denying that Steele is the source for the article—at least the “direct” source. This appears to be a blatant case of circular reporting: unable to verify Steele’s information, the government tries to have Steele corroborate Steele, through a media account, as to which the obvious sourcing to Steele is kinda sorta denied. It would be easier to contend that the Justice Department would not engage in such a practice if media reports were not cited elsewhere in the submission (and if we had not since learned that Steele and the FBI used media reports in the futile effort to verify Steele’s information).
In attempting to defend the FISA warrant, Democrats argued that the lengthy discussion of Isikoff’s article was not circular reporting; rather, it was offered “to inform the Court of Page’s public denial of his suspected meetings in Russia” (with Sechin and Divyekin).30 But this makes no sense. It was not necessary to supply a lengthy, substantive summary of the article for that purpose (a citation would have done the trick). More to the point, Isikoff’s article did not even include a denial by Page; it said that he declined requests for comment, and that he “declined to say whether he was meeting with Russian officials during his trip.” Furthermore, the Grassley–Graham memo includes this passage, which is redacted from the FISA warrant application as publicly disclosed: “[T]he information contained in the September 23rd news article generally matches the information about Page that [Steele] discovered during his/her research[.]” To be sure, there are other redactions which make it hard to draw a firm conclusion; but it is difficult to imagine why the Justice Department would make this assertion except to imply that Isikoff’s article—purportedly not sourced directly to Steele—bolstered Steele’s research.
Let’s put the circular reporting issue aside and focus on the sleight of hand regarding whether Steele was Isikoff’s source, and regarding his media contacts generally.
It is palpable that Steele is the probable source, but the application drops another footnote, rationalizing that the “FBI does not believe that [Steele] directly provided this information to the press” (emphasis added).31 The implication is that Simpson must have been Isikoff’s source because, the court is told, Steele has represented to the Bureau that he “only provided this information to [Simpson] and the FBI.” Yet the FBI knew that Steele had also shared information with both the Justice Department’s Ohr and the State Department’s Kavalec, both of whom knew he’d had contacts with the media. More significan
tly, the application does not say whether the FBI asked Steele if he was Isikoff’s source; and he is not described as denying it. It looks, instead, like the FBI didn’t ask the question—probably because it didn’t want to know the answer.
Why do I say that? Just ten days after the FISA warrant was granted, Steele went public with his cooperation in the Trump–Russia investigation, through David Corn’s October 31 Mother Jones article. At that point, the Bureau had no choice but to remove Steele from the investigation—at least ostensibly—for violating its press contacts rule, which forbids informants from discussing substance of their investigative work and covert relationship with the FBI. Three months later, just before President Trump’s inauguration, the FBI disclosed in its application to reauthorize the Page FISA warrant, that it had “suspended its relationship with” Steele back in October due to his “unauthorized disclosure of information to the press.”32
We do not know if, at some point earlier point, the Justice Department notified the FISC about this suspension in some form that has not been disclosed. If not, then this footnote in the January 2017 renewal application marks the first time the court was notified. That, in itself, would be a violation of the FISC’s rules, which require that the court be promptly informed if the government learns it has provided misinformation.33 Clearly, Steele’s violation of the press contacts rule strongly suggested that he had previously transgressed it—particularly in connection with the Isikoff article.
But that’s not the half of it. The Justice Department and the FBI do not claim in the footnote that Steele lied about his contacts with the press; they say he was suspended because he had press contacts. Note that months later, when the FISA packages were finally disclosed to Congress, Judiciary Committee Senators Grassley and Graham referred Steele to the Justice Department for a possible false statements prosecution for lying about his media communications. Subsequently, Justice quietly closed the matter without charges.34 I believe that this is because Steele did not lie. There is no reason to think he would have hidden press contacts from the FBI when (a) he was open about them in speaking with other government officials, (b) it was well known that feeding leads to journalists was a core part of Fusion’s modus operandi, and (c) getting Hillary Clinton elected, not investigating Trump, was Fusion’s objective.
It is more likely, then, that the Justice Department and the FBI knew what Steele was doing (at least tacitly), but refrained from asking him about it. The Obama administration was leveraging its counterintelligence investigation with media leaks. The Isikoff report had been a perfect example—a melding of leaks from intelligence sources, congressional Democrats, and the Steele dossier. On April 10, 2017, the day before the news broke that Carter Page was under FISA surveillance, Strzok texted that he needed to speak with Lisa Page “about [a] media leak strategy with DOJ.” The inspector general’s report lamented a culture of media leaking at the FBI.35
The FBI never represented to the court that it had asked Steele point blank whether he was chirping to the media. And when Corn’s article made the obvious explicit—Steele was talking to the press—the FBI never claimed that Steele had lied about what he was up to. I’m betting that’s because he didn’t lie. Remember, though Steele was an FBI informant, his Trump–Russia reporting did not start as an FBI investigation; it was a Fusion–Clinton campaign opposition-research venture, in which transmitting damaging information about Trump to the press and the electorate was the whole point. The FBI and the Justice Department wanted Fusion to succeed on that score—they wanted Trump to lose; the FISA investigation was just an insurance policy. Consequently, though FBI informants are not supposed to communicate information to the media, in this instance the informant’s job was to communicate information to the media, and it was in connection with that job that he came to the FBI in the first place.
The Bureau danced around this awkward arrangement by not pressing him hard about his media contacts, and then making vaporous representations to the FISC about how they “believed” [fingers crossed behind back] he probably wasn’t leaking.
Just as indecorously, the FBI maintained that Steele’s information continued to be reliable despite his violations of the rules—even as the months went by and his information continued to go unverified. In fact, by the time of the January renewal, the intelligence community was distancing itself from the dossier: the information was dismissed as “pseudo-intelligence” (Clapper’s term) that was “salacious and unverified” (Comey). Yet, the FISC was never told this, nor that Steele had invented the “Russian consulate in Miami”—nor that the sources of Steele’s that had been identified were unreliable.
Worse, the disclosure that Steele had been suspended from the investigation was indefensibly misleading. Even after the FBI purported to banish Steele as an informant, it used Bruce Ohr as a back channel. Steele passed his information to Ohr, who forwarded it to the Bureau. And by May 2017, after the president fired Director Comey and acting-Director McCabe opened an obstruction investigation against Trump, the FBI was asking Ohr to reach out to Steele so they could attempt a formal reengagement.
It was never true that Steele was suspended from the investigation. And it was never true that his information was reliable.
Pretextual Use of Counterintelligence to Conduct a Criminal Investigation
Every one of the four Page warrant applications made the following assertion (italics mine):
The Purpose of the Authorities Requested
The FBI’s foreign intelligence goals for this investigation are set forth in the certification of the Executive Branch official contained herein. However, the authorities requested in this application may produce information and material which might, when evaluated by prosecutive authorities, constitute evidence of a violation of United States law, and this investigation may result in an eventual criminal prosecution of the target. Nevertheless, as discussed in the certification, at least a significant purpose of this request for [REDACTED] is to collect foreign intelligence information as part of the FBI’s investigation of this target.
This is so matter-of-factly brazen, buried on page 41 of the fifty-four-page application, that we can easily miss its significance. FISA authorities are not criminal-law authorities. It is not just that FISA is not designed to ferret out evidence of crime; it is not permitted to be used for that purpose. FISA’s objective is the collection of foreign intelligence, the gathering of information about the actions and intentions of foreign powers that may threaten American interests.
The Page warrant applications imply that it is a standard part of the process that “prosecutive authorities”—i.e., prosecutors, criminal investigators, grand juries—peruse FISA evidence to determine whether crimes have been committed. Not true. Prosecutors normally have nothing to do with FISA. Counterintelligence is not “prosecutive”; it aims to gather information about other countries and their operatives, not make criminal cases.
There is an exception, but it is not unique to FISA. It is a commonsense exception that applies across the board in federal law: if investigators are conducting a legitimate investigation, and they unexpectedly stumble upon evidence of a crime, they are not required to ignore it even if it wasn’t what they were looking for in the first place. If, for example, a federal agency is soliciting contract bids and a patently fraudulent bid comes in, it can be referred to criminal investigators. If the FBI is doing a background check for a woman who has applied for a federal job, and agents discover she has committed bank fraud, the Bureau will refer that for prosecution. If an FBI agent is executing a search warrant that permits the seizure of guns with obliterated serial numbers, and the agent happens to find a bag of cocaine on the premises, the drugs may be seized and the culprit prosecuted on narcotics charges. Similarly, if the FBI is conducting a lawful FISA surveillance and thus learns that suspected agents of a foreign power are plotting to blow up a building, that evidence may be handed over to criminal investigators for a terrorism prosecution.
&nb
sp; There is nothing remarkable about this exception. Everybody knows about it. It would never be spelled out in a normal search warrant. Prosecutors and agents do not write in their warrant applications, “If the premises contain incriminating materials other than that which the court has authorized agents to seize, the FBI may seize those materials.” Were they to include such a provision, it would be suggestive of an unconstitutional “general warrant”; it would intimate that the government’s real agenda was to hunt for evidence beyond what the warrant specifies.
Just the same, it is not necessary in a FISA warrant application to spell out the exception for good-faith, unintended discovery of criminal evidence. Doing so strongly suggests the FBI and DOJ realize that they are conducting a de facto criminal investigation. It suggests that they are pretextually using FISA, because they either lack grounds to justify a criminal wiretap application (which requires probable cause of a crime), or they desire to conceal their criminal probe under the cover of classified intelligence. It suggests that the overarching objective is to make a criminal case, not to collect foreign intelligence.
As we shall see, this exploitation of counterintelligence authority to assess whether crimes were committed also sings aloud in the breathtaking March 2017 testimony in which then-Director Comey announced the existence of the Trump–Russia investigation. Its echo is heard in then-Deputy Attorney General Rod Rosenstein’s appointment of Robert Mueller as special counsel.
This raises a question that should gnaw at those of us (such as your humble correspondent) who have championed robust national-security powers in an era dominated by international terrorism: is this pretextual use of FISA something that the Justice Department and FBI designed specifically for the Trump–Russia investigation, or is it standard operating procedure in all counterintelligence cases?
Ball of Collusion Page 35
