February 3, 2018

DUDES, TO THE RIGHT DEMOCRATS ARE WORSE THAN NARCO-TRAFFICKERS:

Thoughts on the Nunes Memo: We Need to Talk About Devin (Quinta Jurecic, Shannon Togawa Mercer, Benjamin Wittes, February 2, 2018, Lawfare)

[L]et's briefly put aside the reality that the memo is probably neither a complete nor a fair account of the FBI's handling of the Page matter. For a moment, let's assume that every fact in the memo is true and that the memo contains all relevant facts on the matter--in other words, that it is entirely accurate and not selective. What would that mean?

As the document tells the story, on Oct. 21, 2016, the Justice Department and FBI successfully applied for a FISA warrant against Carter Page from the FISA court. Presumably, though the memo does not state this explicitly, it did so under Title I of FISA, as Page is a U.S. citizen and the warrant seems to have been an individualized one directed at him. The initial warrant was renewed three times, once every 90 days, each time requiring renewed showing of probable cause that Page was acting as the agent of a foreign power.

FISA warrants must be approved by both the FBI and the Justice Department. On behalf of the FBI, then-Director James Comey signed three warrants and Deputy Director Andrew McCabe signed one. Deputy Attorney General Sally Yates, Acting Deputy Attorney General Dana Boente and Deputy Attorney General Rod Rosenstein eached signed at least one warrant on behalf of the Justice Department. (Based on the 90-day clock, the renewals took place in January, April and July of 2017. Given who was in office at the relevant times, it seems likely that Comey and Yates signed off on the initial warrant in October 2016; that Comey and Yates signed off on the first renewal in January 2017; that Comey and Boente signed off on the second renewal in April 2017; and that McCabe and Rosenstein signed off on the third renewal in July 2017. Note that by the time of second and third renewals, and perhaps even by the time of the first renewal, the dossier--which Buzzfeed published on Jan. 10, 2017--was a matter of intense public controversy. What's more, incoming President Trump had been briefed on the dossier on Jan. 6, 2017, by FBI Director Comey. So to the extent that the FBI relied on Steele material in the renewals, it did so knowing it was invoking material that was already publicly controversial.

Individual complaints listed in the Nunes memo include:

The memo reports that the Steele dossier was an "essential" part of at least the initial FISA application. Although the initial FISA application does include the fact that Steele was working for a "named U.S. person," the memo claims that neither the initial application nor any of the applications for renewal mentioned his connections to the Democratic National Committee and the Hillary Clinton campaign, which were indirectly funding his efforts through the law firm Perkins Coie. That law firm had hired the firm Fusion GPS to conduct opposition research on Trump, and Fusion GPS then retained Steele.

The memo also asserts that the FBI "authorized payment" to Steele for his information on the Trump campaign. This fact was also not included in any of the FISA applications.

The memo also claims that the initial FISA application "cite[s] extensively" a Yahoo News article by Michael Isikoff on Carter Page's July 2017 trip to Moscow but "inaccurately assesses" that Steele did not provide information on his work to Isikoff. Also on the subject of Steele's media contacts, the memo states that the FBI cut ties with Steele after discovering that he had discussed his relationship with the FBI with journalist David Corn, the Washington bureau chief of Mother Jones.

According to the memo, Steele maintained contact with then-Associate Deputy Attorney General Bruce Ohr before and after he was terminated as a source. The FBI reportedly failed to include in the FISA warrant renewals that Steele had told Ohr that he "was desperate that Donald Trump not get elected and was passionate about him not being president." Furthermore, Ohr's wife was an employee of Fusion GPS, cultivating opposition research on the Trump campaign. The memo reports that Ohr's relationship with Steele and Fusion GPS was not disclosed to the FISC.

The memo quotes FBI Assistant Director Bill Priestap, head of the bureau's counterintelligence division, as saying that the Steele dossier was in its "infancy" when the first FISA warrant application was submitted. A later source validation report conducted by the FBI assessed Steele's report as "minimally corroborated." In January 2017, Comey briefed President-Elect Trump on a summary of the Steele dossier even though it was "salacious and unverified." The memo asserts that Deputy Director Andrew McCabe testified before the House intelligence committee that no surveillance warrant from the FISA court would have been sought without the Steele dossier information.

The FISA warrant application reportedly mentions George Papadopoulos, and the memo says that while there was no established "cooperation or conspiracy" between Carter Page and Papadopoulos, the Papadopoulos intelligence triggered the FBI counterintelligence investigation run by Peter Strozk. Strzok was then reassigned by the special counsel's office for text messages exchanged with FBI lawyer Lisa Page; text messages that demonstrate extensive discussions about the Mueller investigation, orchestrating leaks to the media and discussing a meeting with Deputy Director Andrew McCabe to discuss an "insurance" policy against Trump's election.

To all of which, a reasonable person must ask: Huh? Indeed, if the above makes for difficult reading from which no particularly strong, let alone scandalous, narrative thread emerges, that's because the points recounted (assuming they are true) don't make out a coherent complaint.

To the extent that the complaint is that Page's civil liberties have been violated, the outraged are crying crocodile tears. For one thing, it is not at all clear that Page's civil liberties were, in fact, violated by the surveillance; the memo does not even purport to argue that the Justice Department lacked probable cause to support its warrant application. It does not suggest that Page was not, after all, an agent of a foreign power. What's more, the only clear violation of Page's civil liberties apparent here lies in the disclosure of the memo itself, which named him formally as a surveillance target and announced to the world at large that probable cause had been found to support his surveillance no fewer than four times by the court. Violating Page's civil liberties is a particularly strange way to complain about conduct that probably did not violate his civil liberties.

To the extent the complaint is that the FBI relied on a biased source in Steele, the FBI relies every day on information from far more dubious characters than former intelligence officers working for political parties. The FBI gets information from narco-traffickers, mobsters and terrorists. Surely it's not scandalous for it to get information from a Democrat--much less from a former British intelligence officer working for Democrats, even if he expresses dislike of a presidential candidate.



Posted by at February 3, 2018 7:18 AM

  

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