Saturday, February 10, 2018
Grassley-Graham Memo Affirms Nunes Memo — Media Yawns
By Andrew C. McCarthy
We need a full-blown investigation of how the FISA court came to grant warrants to spy on Carter Page.
In a word, the Grassley-Graham memo is shocking. Yet, the press barely notices.
Rest assured: If a Republican administration had used unverifiable hearsay from a patently suspect agent of the Republican presidential candidate to gull the FISA court into granting a warrant to spy on an associate of the Democratic nominee’s campaign, it would be covered as the greatest political scandal in a half-century.
Instead, it was the other way around.
The Grassley-Graham memo corroborates the claims in the Nunes memo: The Obama Justice Department and FBI used anonymously sourced, Clinton-campaign generated innuendo to convince the FISA court to issue surveillance warrants against Carter Page, and in doing so, they concealed the Clinton campaign’s role.
Though the Trump campaign had cut ties with Page shortly before the first warrant was issued in October 2016, the warrant application was based on wild allegations of a corrupt conspiracy between the Trump campaign and the Kremlin. Moreover, the warrant meant the FBI could seize not only Page’s forward-going communications but any past emails and texts he may have stored — i.e., his Trump campaign communications.
With its verification by the Grassley-Graham memo, the Nunes memo now has about a thousand times more corroboration than the Steele dossier, the basis of the heinous allegations used by the Justice Department and FBI to get the FISA warrants.
What the Grassley-Graham memo tells us is that the Nunes memo, for all the hysteria about it, was tame. The Grassley-Graham memo tells us that we need not only a full-blown investigation of what possessed the Obama administration to submit such shoddy applications to the FISA court, but of how a judge — or perhaps as many as four judges — rationalized signing the warrants.
We need full disclosure — the warrants, the applications, the court proceedings. No more games.
Senators Charles Grassley of Iowa and Lindsey Graham of South Carolina are senior Republicans on the Judiciary Committee (which Grassley chairs, while Graham chairs a relevant subcommittee). As we’ve previously detailed (in a two-part series, here and here), they composed their memo in support of a criminal referral recommending that dossier author Christopher Steele be investigated for making false statements to the FBI (which is a felony).
Initially, the senators’ memo was withheld, then it was released with extensive redactions because its contents were largely classified — covering submissions to the FISA court, the secret tribunal established by the 1978 Foreign Intelligence Surveillance Act.
But following the release of the Nunes memo — the memo prepared by Republican majority staff of the House Permanent Select Committee on Intelligence led by Representative Devin Nunes (R., Calif.) — Senators Grassley and Graham stepped up their admirable efforts to get more information unsealed . . . so that the public can see it, even if the press prefers not to cover it.
Last Friday, the Nunes memo asserted that the FBI and Justice Department had significantly relied on the unverified Steele dossier to obtain FISA warrants on Page. In the week that followed, House Intelligence Committee Democrats and their media echo chamber bleated about how things had been taken out of context, with some suggesting that there was plenty of other evidence to establish probable cause that Page was acting as a Russian agent. (See my column last Sunday responding to claims by Representative Jerrold Nadler, here.)
It was even implied that Nunes & Co. had deceptively reported committee testimony by the FBI’s then deputy director Andrew McCabe that the Steele dossier was essential to this probable-cause showing.
We’re not hearing much of that now.
Here’s the Grassley-Graham memo on the critical first FISA application, the basis for the warrant granted on October 21, 2016:
The bulk of the application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier. The application appears to contain no additional information corroborating the dossier allegations against Mr. Page, although it does cite to a news article that appears to be sourced to Mr. Steele’s dossier.
We’ll come to the news article — the stupefying circular attempt to corroborate Steele with Steele. For the moment, suffice it to say that the senators have confirmed the Nunes memo’s account, except with much more information than House Republicans were able to include. Information such as this:
When asked at the March 2017 briefing [of Judiciary Committee leaders] why the FBI relied on the dossier in the FISA applications absent meaningful corroboration — and in light of the highly political motives surrounding its creation — then-Director [James] Comey stated that the FBI included the dossier allegations about Carter Page in the FISA applications because Mr. Steele himself was considered reliable due to his past work with the Bureau. (Emphasis added.)
On this score, Grassley and Graham quote directly from the warrant applications: “Based on [Steele’s] previous reporting history with the FBI whereby [Steele] provided reliable information to the FBI, the FBI believes [Steele’s] reporting to be credible.” (Emphasis added.)
I cannot stress enough how irregular this is.
It is why there is abundant reason to demand that the judge explain his or her rationale for granting the warrant.
As I outlined at greater length last week (here, in section C), in applying for a warrant, the government must establish the reliability of the informants who witnessed the alleged facts claimed to support a probable-cause finding.
Steele was not one of those witnesses. He is not the source of the facts. He is the purveyor of the sources — anonymous Russians, much of whose alleged information is based on hearsay, sometimes multiple steps removed from direct knowledge. Steele has not been in Russia since his cover as a British spy was blown nearly 20 years ago. He has sources, who have sources, who have sources . . . and so on. None of his information is better than third-hand; most of it is more attenuated than that.
For purposes of justifying a warrant, it does not matter that, in a totally unrelated investigation (involving corruption at FIFA, the international soccer organization), the FBI judged that the hearsay information provided by Steele, then a British agent, checked out. In his anti-Trump research, Steele could not verify his sources. Furthermore, he was now a former foreign intelligence officer who was then working for private clients — which is the advocacy business, not the search-for-truth business.
Let that sink in, then think about this contrast: No actual FBI agent, no matter how renowned, would be able to get a judicial warrant based solely on his own reliability as an investigator. Jim Comey, despite having a résumé geometrically more impressive than Steele’s, including Senate confirmations to some of federal law-enforcement’s loftiest positions, would not be given a warrant based on representations to the court that the FBI, the Justice Department, the president, and the Senate all attested to his impeccable reliability.
The only reliability that counts is the reliability of the factual informants, not of the investigator who purports to channel the informants. The judge wants to know why the court should believe the specific factual claims: Was the informant truly in a position to witness what is alleged, and if so, does the informant have a track record of providing verified information? The track record of the investigator who locates the sources is beside the point. A judge would need to know whether Steele’s sources were reliable, not whether Steele himself was reliable.
This is not esoterica. In the investigations biz, this is so basic that to call it “Warrants 101” doesn’t do it justice. If you don’t have witnesses with verifiable, first-hand knowledge, you don’t have anything. Without them, to borrow Director Comey’s notorious dictum, no reasonable prosecutor would bring a warrant application to a federal judge, and no reasonable judge would issue a warrant.
If there is no credible sourcing for the factual allegations in the warrant application, that is a probable-cause deficiency that could not have been cured by the reputation of the purveyor of the sources, no matter how sterling. That said, it is obvious that the less identifiable and reliable the informants are, the greater is the government’s obligation to be transparent in conveying the investigator’s potential biases. The Obama administration’s malfeasance on this point is breathtaking.
Graham and Grassley recount:
The FBI noted to a vaguely limited extent the political origins of the dossier. In footnote 8 [of the first warrant application, apparently repeated in the subsequent applications] the FBI stated that the dossier information was compiled pursuant to the direction of a law firm who had hired an “identified U.S. person” — now known as Glenn Simpson of Fusion GPS.
The fact that Fusion GPS’s ultimate client was the Clinton campaign was never disclosed in any of the warrant applications, which ran well beyond June 2017, when the last 90-day extension was granted. Patently, so much struggle and circumlocution went into crafting this “vaguely limited” footnote that we can only conclude the decision not to disclose the Clinton connection was the subject of much deliberation.
The Clinton campaign’s sponsorship was not publicly disclosed until October 2017. Before then, it is virtually certain that, to the extent the FISA court and Congress were told of the “political origins” of the dossier, these were benignly presented as bipartisan concerns about Donald Trump. That is, the Steele dossier phase of Fusion’s anti-Trump project was conflated with the earlier phase, when — as Simpson has testified — Fusion did documentary research on Trump during the Republican primaries for a conservative media outlet.
It was not disclosed that, by the time Steele was hired to do the dossier, the project was backed exclusively by the Democratic party and the Clinton campaign.
Manifestly, that was a material fact. If a prosecutor withheld an arguably exculpatory fact of this degree of significance, it could get a conviction reversed. As some have observed, a public company would likely face a stock fraud prosecution for concealing a fact so patently material from its required SEC reports.
The Clinton-campaign tie should have been disclosed from the beginning. Now, consider what happened as the surveillance continued for the better part of a year.
In late October 2016, shortly after the first warrant was issued, the FBI terminated its relationship with Steele because he lied to the Bureau about his contacts with the media.
But the Justice Department did not report this to the FISA court. Instead, when the first warrant expired in January 2017, the FBI and Justice Department sought its renewal by, again, relying on the credibility of the guy they’d booted for lying. In another lawyerly footnote, they told the FISA court that Steele had been terminated not because he lied but because he was guilty of “unauthorized disclosure of information to the press.”
But that was not the half of it. Steele’s agreement with the FBI was that he would not communicate with the press. He made that agreement and then communicated with the press anyway — which showed he was unreliable, notwithstanding the FBI’s continued insistence to the contrary. He hadn’t just flouted the agreement by speaking to the press, though; he had clearly lied about doing so.
By mid-September 2016, at Fusion’s direction and even before the first FISA warrant was issued, Steele had spoken with a plethora of Clinton-friendly press outlets. As a result, Yahoo News published a news story by Michael Isikoff on September 23, which reported precisely the information that Steele had given to the FBI about Page: that he’d supposedly met in Moscow with two top Russian operatives and discussed the lifting of sanctions against Russia.
How could the FBI and Justice Department not have known that Steele was the source for this story? Isikoff explicitly stated that his account of Page’s activities was set forth in “intelligence reports” that were in the possession of “U.S. officials.”
Plainly, the FBI was privy to intelligence reports in the government’s possession — the purported “intelligence” reports Steele had provided as well as any others. Had there been another intel report from a different source who happened to provide the same exact information Steele had provided, not only would the FBI have known about it; the Bureau would have touted it to the FISA court as critical corroboration of Steele’s anonymous sources.
To the contrary, the FISA court was told: “The FBI does not believe that [Steele] directly provided this information to the press.” I’ve emphasized “directly” to highlight how curious this assertion is. Ostensibly, the Bureau seems to have been saying that Steele was not the source — meaning that there must have been another source, yet one the Bureau had not managed to identify even though this mystery source was described in intelligence reports accessible to the Bureau.
On the other hand, what does “directly” mean? By using that qualifier, was the Bureau conceding that Steele might have provided information to the press indirectly – i.e., through an intermediary? But that would make no sense: What would be the point of citing the Isikoff article as corroboration for Steele if Steele had been Isikoff’s source, even if indirectly?
It is not good, one way or the other. Either Steele lied to the FBI about speaking to the press, or the FBI consciously avoided learning that Steele had spoken to Isikoff and then speculated to the court that Steele was probably not Isikoff’s source. Either way, Steele’s credibility was a huge issue. That put in doubt the FBI’s vouching for his reliability, which in turn made disclosure of the Clinton campaign’s sponsorship of his dossier even more imperative.
Or how about this: Steele gave a published interview to Mother Jones in late October 2016, after promising not to speak to the media. In trying to soft-peddle the palpable unreliability Steele had thus exhibited, the FBI rationalized that he was acting not out of dishonesty but in a fit of pique over Director Comey’s pre-election announcement that the FBI had reopened the Clinton emails investigation.
This, of course, is the announcement that Clinton partisans blame for their candidate’s loss. So, according to the Bureau, Steele’s pro-Clinton partisanship induced him to such outrage over Comey’s announcement that he was moved to violate his agreement with the FBI. Wouldn’t you think it might then occur to the Bureau and the Justice Department that maybe, just maybe, they ought to let the court in on that teeny detail about the Clinton campaign’s being the sponsor of Steele’s dossier?
Nope. Instead they kept mum and they kept telling the court Steele was perfectly reliable.
In fact, they kept telling the FISA court he was reliable even after Steele himself admitted to a British court that his dossier wasn’t at all reliable.
What’s that? Am I kidding? No.
Even though there was still no meaningful corroboration of Steele’s sources after months of investigation, even though Steele had lied to them, the FBI and Justice Department represented again and again, in April and June 2017, that the FISA court could confidently bank on Steele’s reliability. By early 2017, however, Steele was being sued for libel in Britain, among other places, by people accused of misconduct in the dossier.
Truth is a defense to libel. Suffice it to say, it was not Steele’s defense.
In May 2017, as I have detailed (here), Steele was required to respond to interrogatories. He emphasized that his dossier allegations were “raw intelligence” that was “unverified” and “warranted investigation.”
He further described his reports as “limited intelligence” that described mere “indications” of “possible” coordination between Trump’s campaign and the Russian government. He was not in a position to vouch for the accuracy of what he’d been told, he explained; he passed it along because it needed further investigation.
Yet, far from reporting Steele’s retreat to the FISA court, Grassley and Graham report that the FBI and Justice Department continued vouching for the reliability of his allegations.
Beyond all that, we now learn through the senators’ memo, and some follow-up reporting, that two longtime Clinton cronies, Cody Shearer and Sidney Blumenthal, fed their own anti-Trump dossier to Steele, through a State Department official, Jonathan Winer. In the fall of 2016, Steele, while working on his Clinton-funded project, reported this Clinton-crony information to the FBI.
Still, the FBI and Justice Department elected not to tell the FISA court that the Clinton campaign was paying for Steele’s unverified, unverifiable anti-Trump research.
I spent many months assuring people that nothing like this could ever happen — that the FBI and Justice Department would not countenance the provision to the FISA court of uncorroborated allegations of heinous misconduct. When Trump enthusiasts accused them of rigging the process, I countered that they probably had not even used the Steele dossier.
If the Justice Department had used it in writing a FISA warrant application, I insisted that the FBI would independently verify any important facts presented to the court, make any disclosures that ought in fairness be made so the judge could evaluate the credibility of the sources, and compellingly demonstrate probable cause before alleging that an American was a foreign agent.
I was wrong.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.
White House seeks revisions to Dems' FISA rebuttal memo, halting release
The White House on Friday told Democrats on the House Intelligence Committee to redraft their rebuttal to a controversial GOP memo alleging government surveillance abuse during the 2016 campaign, saying sensitive details need to be stripped out before the document can be made public.
The message was sent to the committee Friday in a letter from White House Counsel Don McGahn.
"Although the president is inclined to declassify the February 5th Memorandum, because the Memorandum contains numerous properly classified and especially sensitive passages, he is unable to do so at this time," McGahn wrote.
"However, given the public interest in transparency in these unprecedented circumstances, the President has directed that Justice Department personnel be available to give technical assistance to the Committee, should the Committee wish to revise the February 5th Memorandum to mitigate the risks identified by the Department," McGahn continued.
"The President encourages the Committee to undertake these efforts. The Executive Branch stands ready to review any subsequent draft of the February 5th Memorandum for declassification at the earliest opportunity."
A letter signed by Deputy Attorney General Rod Rosenstein and FBI Director Christopher Wray accompanied McGahn's response.
In that accompanying letter, the two men noted "a version of the document that identifies, in highlighted text, information the release of which would present such concerns in light of longstanding principles regarding the protection of intelligence sources and methods, ongoing investigations, and other similarly sensitive information.
"We have further identified, in red boxes, the subset of such information for which national security or law enforcement concerns are especially significant. Our determinations have taken into account the information previously declassified by the President as communicated in a letter to HPSCI Chairman Devin Nunes dated February 2, 2018."
Earlier this week, the House Intelligence Committee approved the release of the Democrats' memo, giving Trump five days to consider whether he should block publication for national security reasons.
For the moment, the White House letter halts the release.
“The President’s double standard when it comes to transparency is appalling," Senate Minority Leader Chuck Schumer, D-N.Y., said in a statement after the release of McGahn's letter. "The rationale for releasing the Nunes memo, transparency, vanishes when it could show information that’s harmful to him. Millions of Americans are asking one simple question: What is he hiding?”
Added House Minority Leader Nancy Pelosi, D-Calif.: "America’s intelligence and national security are being politicized. Why won’t the President put our country before his personal and political interests?”
Democrats have been expected to use their memo to try to undermine Republican claims that the FBI and DOJ relied heavily on the anti-Trump dossier to get a warrant to spy on a Trump associate -- and omitted key information about the document's political funding. Democrats claim the GOP memo was misleading.
"We think this will help inform the public of the many distortions and inaccuracies in the majority memo," California Rep. Adam Schiff, the top Democrat on the panel, said Monday.
But it had been expected that the Democrats' memo might raise red flags during the review period.
A source who read the FISA rebuttal memo told Fox News earlier this week that it is filled with sources and methods taken from the original documents.
The source argued that this was done to strategically force the White House to either deny release of the memo or substantially redact it, so that Democrats could accuse the White House of making redactions for political reasons.
U.S. Rep. Trey Gowdy, R-S.C., a member of the committee, said during an interview this week on Fox News’ “The Story with Martha MacCallum” that Democrats “are politically smart enough to put things in the memo” that have to be redacted.
“Therefore, it creates this belief that there's something being hidden from the American people,” Gowdy said.
Last Friday, Republicans on the intelligence committee released their much-anticipated memo from Chairman Devin Nunes, R-Calif.
It also said the FBI and DOJ “ignored or concealed” dossier author Christopher Steele’s “anti-Trump financial and ideological motivations" when asking the secret Foreign Intelligence Surveillance Court for permission to eavesdrop on former Trump adviser Carter Page.
Democrats have been pushing back against those claims and accusing Republicans of exaggerations.
Earlier this week, a newly released version of a letter from Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Sen. Lindsey Graham, R-S.C., appeared to support key claims from the GOP memo.
The surveillance applications, they said in a criminal referral for Steele sent in early January to FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein, “relied heavily on Mr. Steele’s dossier claims.”
Further, they said the application “failed to disclose” funding from the Clinton campaign and DNC.
The referral also helped explain a point of contention in recent days, after Nunes seemed to admit on “Fox & Friends” that the FBI application did include a “footnote” acknowledging some political origins of the dossier. This admission helped fuel Democratic claims that the dossier’s political connection was not concealed from the surveillance court as alleged.
According to Grassley and Graham’s referral, the FBI “noted to a vaguely limited extent the political origins of the dossier” in a footnote that said the information was compiled at the direction of a law firm “who had hired an ‘identified U.S. person’ – now known as Glenn Simpson of Fusion GPS.” A subsequent passage in the letter is redacted. But they said the DNC and Clinton campaign were not mentioned.
Republicans have seized on the Nunes document to make the accusation of widespread anti-Trump bias at the top of the FBI and DOJ that sparked inquiries into Trump campaign relations with Russia during the election.
The president has repeatedly said there was “no collusion” between his campaign and Russia.
The White House responded to the Republican memo last week by saying it “raises serious concerns about the integrity of decisions made at the highest levels of the Department of Justice and the FBI to use the government’s most intrusive surveillance tools against American citizens.”
Fox News’ Judson Berger and John Roberts contributed to this report.