Lawrence Person's BattleSwarm Blog

The Memo we’ve all been waiting for has been released. For those who have been following the scandal here, the only big surprise is that the FBI knew the Steele dossier was unreliable, used it as the basis of a FISA warrant anyway, and then lied about it to the courts.

Here’s the text of the memo from The Atlantic, which I’m using just to avoid a half hour of stripping line returns and typos out of the ScribeD text file a lot of outlets posted:

January 18, 2018

To: HPSCI Majority Members

From: HPSCI Majority Staff

Subject: Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation

Purpose

This memorandum provides Members an update on significant facts relating to the Committee’s ongoing investigation into the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) and their use of the Foreign Intelligence Surveillance Act (FISA) during the 2016 presidential election cycle. Our findings, which are detailed below, 1) raise concerns with the legitimacy and legality of certain DOJ and FBI interactions with the Foreign Intelligence Surveillance Court (FISC), and 2) represent a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process.

Investigation Update

On October 21, 2016, DOJ and FBI sought and received a FISA probable cause order (not under Title VII) authorizing electronic surveillance on Carter Page from the FISC. Page is a U.S. citizen who served as a volunteer advisor to the Trump presidential campaign. Consistent with requirements under FISA, the application had to be first certified by the Director or Deputy Director of the FBI. It then required the approval of the Attorney General, Deputy Attorney General (DAG), or the Senate-confirmed Assistant Attorney General for the National Security Division.

The FBI and DOJ obtained one initial FISA warrant targeting Carter Page and three FISA renewals from the FISC. As required by statute (50 U.S.C. §,1805(d)(l)), a FISA order on an American citizen must be renewed by the FISC every 90 days and each renewal requires a separate finding of probable cause. Then-Director James Comey signed three FISA applications in question on behalf of the FBI, and Deputy Director Andrew McCabe signed one. Then-DAG Sally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one or more FISA applications on behalf of DOJ.

Due to the sensitive nature of foreign intelligence activity, FISA submissions (including renewals) before the FISC are classified. As such, the public’s confidence in the integrity of the FISA process depends on the court’s ability to hold the government to the highest standard—particularly as it relates to surveillance of American citizens. However, the FISC’s rigor in protecting the rights of Americans, which is reinforced by 90-day renewals of surveillance orders, is necessarily dependent on the government’s production to the court of all material and relevant facts. This should include information potentially favorable to the target of the FISA application that is known by the government. In the case of Carter Page, the government had at least four independent opportunities before the FISC to accurately provide an accounting of the relevant facts. However, our findings indicate that, as described below, material and relevant information was omitted.

1) The “dossier” compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application. Steele was a longtime FBI source who was paid over $160,000 by the DNC and Clinton campaign, via the law firm Perkins Coie and research firm Fusion GPS, to obtain derogatory information on Donald Trump’s ties to Russia.

a) Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials.

b) The initial FISA application notes Steele was working for a named U.S. person, but does not name Fusion GPS and principal Glenn Simpson, who was paid by a U.S. law firm (Perkins Coie) representing the DNC (even though it was known by DOJ at the time that political actors were involved with the Steele dossier). The application does not mention Steele was ultimately working on behalf of—and paid by—the DNC and Clinton campaign, or that the FBI had separately authorized payment to Steele for the same information.

2) The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff, which focuses on Page’s July 2016 trip to Moscow. This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself to Yahoo News. The Page FISA application incorrectly assesses that Steele did not directly provide information to Yahoo News. Steele has admitted in British court filings that he met with Yahoo News—and several other outlets—in September 2016 at the direction of Fusion GPS. Perkins Coie was aware of Steele’s initial media contacts because they hosted at least one meeting in Washington D.C. in 2016 with Steele and Fusion GPS where this matter was discussed.

a) Steele was suspended and then terminated as an FBI source for what the FBI defines as the most serious of violations—an unauthorized disclosure to the media of his relationship with the FBI in an October 30, 2016, Mother Jones article by David Corn. Steele should have been terminated for his previous undisclosed contacts with Yahoo and other outlets in September—before the Page application was submitted to the FISC in October—but Steele improperly concealed from and lied to the FBI about those contacts.

b) Steele’s numerous encounters with the media violated the cardinal rule of source handling—maintaining confidentiality—and demonstrated that Steele had become a less than reliable source for the FBI.

3) Before and after Steele was terminated as a source, he maintained contact with DOJ via then-Associate Deputy Attorney General Bruce Ohr, a senior DOJ official who worked closely with Deputy Attorneys General Yates and later Rosenstein. Shortly after the election, the FBI began interviewing Ohr, documenting his communications with Steele. For example, in September 2016, Steele admitted to Ohr his feelings against then-candidate Trump when Steele said he “was desperate that Donald Trump not get elected and was passionate about him not being president.” This clear evidence of Steele’s bias was recorded by Ohr at the time and subsequently in official FBI files—but not reflected in any of the Page FISA applications.

a) During this same time period, Ohr’s wife was employed by Fusion GPS to assist in the cultivation of opposition research on Trump. Ohr later provided the FBI with all of his wife’s opposition research, paid for by the DNC and Clinton campaign via Fusion GPS. The Ohrs’ relationship with Steele and Fusion GPS was inexplicably concealed from the FISC.

4) According to the head of the FBI’s counterintelligence division, Assistant Director Bill Priestap, corroboration of the Steele dossier was in its “infancy” at the time of the initial Page FISA application. After Steele was terminated, a source validation report conducted by an independent unit within FBI assessed Steele’s reporting as only minimally corroborated. Yet, in early January 2017, Director Comey briefed President-elect Trump on a summary of the Steele dossier, even though it was—according to his June 2017 testimony—“salacious and unverified.” While the FISA application relied on Steele’s past record of credible reporting on other unrelated matters, it ignored or concealed his anti-Trump financial and ideological motivations. Furthermore, Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.

5) The Page FISA application also mentions information regarding fellow Trump campaign advisor George Papadopoulos, but there is no evidence of any cooperation or conspiracy between Page and Papadopoulos. The Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok. Strzok was reassigned by the Special Counsel’s Office to FBI Human Resources for improper text messages with his mistress, FBI Attorney Lisa Page (no known relation to Carter Page), where they both demonstrated a clear bias against Trump and in favor of Clinton, whom Strzok had also investigated. The Strzok/Lisa Page texts also reflect extensive discussions about the investigation, orchestrating leaks to the media, and include a meeting with Deputy Director McCabe to discuss an “insurance” policy against President Trump’s election.

Again, if you’ve been following this blog regularly, almost none of that was in dispute and very little of it should be new. But the FBI/DOJ misrepresenting the source of the dossier as reliable information, and hiding that it was partisan hackery, is new.

Here’s Ace of Spades HQ on the issue:

Bear in mind, when the FBI and DOJ presented the Steele Dossier to the court as their pretext to open surveillance, they would have almost certainly identified him as a “source” who has “previously proven reliable” (the quotes are just-for-example verbiage, not actual quotes) and cited, for example, his work in the FIFA investigation as well as his service in MI6.

In short, they would have presented his inherent reliability as a reason to believe the otherwise completely unsubstantiated claims his “dossier” offered. His dossier offered no proof — the only “proof” of the dossier’s claims would Steele’s reliability, honesty, and lack of bias or material interest in this case.

But, according to The Memo, the FBI and DOJ had reason to know that Steele wasn’t all that reliable — and they concealed each of these points from the court:

1. They withheld from the court that Steele was working for Trump’s rival for the presidency, Hillary Clinton, and the DNC, which Hillary Clinton had contractually taken over by this point. They only said in their application that Steele was working for a “U.S. person.”

The fact that Steele had been commissioned by Trump’s political opponent would have greatly diminished his perceived reliability — he had a material interest in this dossier “succeeding.” He had been paid $160,000 to produce it. (And note, Glenn Simpson refused to say if he was ever paid to get an investigation started.)

As this information would have reduced Steele’s reliability in the court’s eyes, the FBI/DOJ concealed that from the court. They lied. They represented Steele as reliable, but then hid competing evidence of his unreliability.

This sort of hearing is ex parte. Only one side gets to present evidence to a judge. No representative of Trump or Carter Page was in the room. It seems to me that the government, when seeking a warrant in an ex parte hearing, should present contrary evidence so that the judge can make an informed decision. There’s no opposing party in the room to offer that contrary evidence, and no one except the government itself to look out for the civil rights of the people it’s seeking surveillance orders on.

The government does not seem to have offered the court such information, and seems to have concealed information they knew would be relevant to the judge’s understanding of the situation and his decision on granting the warrant.

To the detriment of a citizen’s civil rights, note.

2. No less an authority than Bruce Ohr communicated to his superiors that Steele was personally extremely biased in this matter. Not just paid to be biased; but personally, emotionally biased himself.

Ohr reported that Steel personally “was desperate that Donald Trump not get elected and was passionate about him not being president.”

Steele’s reliability depends largely on his judgment, his dispassion. Steele didn’t have any information of his own — he got his information long-distance from Russian operatives and government officials whom he might have paid. Steele has always been touted as an “MI6 agent” to prove that he is expert in separating bullshit from real intelligence — and yet, he put transparent nonsense like the Pee-Pee Party bullshit into his dossier.

Given that he was “desperate” and “passionate” to keep Trump out of the White House, one begins to understand his failure to discriminate between plausible claims and implausible ones.

This information would have helped the court determine if it agreed with the FBI and DOJ that Steele was reliable and a good judge of unverified gossip and rumor — so the FBI and DOJ again concealed this highly-pertinent information from the court.

3. The FBI and DOJ had, of course, a huge reason to suspect Steele wasn’t as reliable as they were representing to the court– namely, that they stopped working with him for violating their ethical rules of confidentiality in peddling these claims to media organizations. I would say that Steele betrayed himself here, proving that he was still working for FusionGPS as a political operative trying to plant dirt against a target he was paid to undermine, and not an informant or researcher working for the FBI.

The FBI and DOJ concealed the fact that they had terminated their relationship with Steele from the court.

4. On that, the initial FISA application claimed that Steele’s claims were corroborated by independent reporting by Michael Isikoff — the idea being, this isn’t just Steele who’s reporting this, it’s also the completely independent reporter Michael Isikoff.

But Michael Isikoff wasn’t an independent source at all — he was fed these claims by Steele himself.

So there was no second source for Steele’s claims — you had Steele making these claims, and then Steele’s stenographer repeating Steele’s claims under a byline of “Totally Not Christopher Steele.”

However, the FBI/DOJ “assessed” that Isikoff’s reporting was independent and represented it that way to the court.

Now, it we can’t say they lied on that point — they might just have been wrong. Incompetent, as usual. Steele lied to them about, or at least concealed, his blabbing to reporters.

Or so we’re told, anyway.

However, after the DOJ/FBI ended its association with Steele for spreading his claims to various media organizations, in violation of FBI/DOJ confidentiality agreements, it surely must have at least occurred to them that perhaps Steele had also previously spread his tales of Urinary Olympics to Michael Isikoff.

However, if such thoughts occurred to them, they quickly put them out of mind. Despite now having reason to suspect that they had, whether wittingly or unwittingly, misrepresented to the court that Isikoff’s article constituted independent corroboration, they seem to have taken no efforts to repair that misrepresentation and inform the court that their initial representation may have been completely false.

The FBI knew the partisan origins of the Steele Dossier, knew that it was funded by the Clinton campaign, then omitted that very material information from the FISA warrant requests. That’s the documented and unambigious use of national security surveillance powers to spy on American citizens to further the partisan political objectives of the party controlling the Executive branch.

That’s the abuse.

That’s why this is bigger than Watergate.