Posted by Curt on 1 March, 2018 at 8:02 am. 1 comment.


With undiminished esteem for my friend David French’s legal acumen, I confess to being underwhelmed by his defense of the Schiff memo. I am going to explain why, but I first want to apologize for the length of this column, which owes to the fact that David’s observations provide an opportunity to address the political context of the congressional investigation, which I have not done much of. I appreciate David’s kind words about my analysis of the memo, and that his lukewarm approval of Representative Adam Schiff’s handiwork comes with a healthy dose of concern about government misconduct.

I also appreciate that we do not yet know everything we should know, and may never, which makes it impossible to draw definitive conclusions. But that hardly means we cannot draw any conclusions. The Justice Department sharply departed from its practice of providing courts with corroboration of serious allegations, and from its tradition of candor in dealings with the federal courts. It eludes me why it is so hard to acknowledge this just because we are at an information deficit and must navigate through a political maelstrom.

Investigations and Politics

There is no point complaining about the partisanship unavoidably attendant to this controversy. This is not, say, the financial meltdown or the Iraq War — disputed issues that were politicized unnecessarily, if predictably. This is an inherently political dispute: A situation in which the incumbent Democratic administration used its foreign-intelligence-collection authority to monitor the Republican presidential campaign, and did so making significant use of what David charitably calls “opposition research” from the Democratic presidential campaign.

With due respect, this is not a situation in which, out of the blue, “a congressional majority [has made] substantial charges of Department of Justice wrongdoing.” Against the backdrop of its blatant tanking of the criminal investigation against the Democratic presidential nominee, the Democratic administration’s Department of Justice went to the Foreign Intelligence Surveillance Court in the last three weeks of the presidential campaign to seek monitoring of a former adviser of the Republican presidential campaign — monitoring that would inevitably have revealed campaign communications in stored email and texts, and quite possibly in real-time conversations — based on a stated suspicion that there was a traitorous confederation between the Republican campaign (quite possibly including the Republican nominee) and the Putin regime.

That was a very “substantial charge” for the Justice Department to make. It is completely reasonable, then, to demand of it what David demands of the House Intelligence Committee’s allegations: a carefully researched presentation (in this instance, in a FISA warrant application) “that provide[d] supporting evidence for each and every inflammatory charge.” Certainly, it is fair to expect that of the Justice Department since (a) that is the standard to which the DOJ proudly holds itself, and (b) the DOJ and FBI typically work as a harmonious unit, unlike a congressional committee composed of sharply divided partisans in the throes of a highly charged political rift.

Like David, I would prefer to see congressional committees write well-crafted, competing majority and minority reports. In the normal situation, however, this follows the amassing of evidence. Here, to the contrary, the FBI and Justice Department stonewalled the committee for months, grudgingly producing evidence only on pain of their top officials’ being held in contempt. When they did produce it, their claims of dire national-security consequences were exposed as overwrought. What they most wanted kept under wraps was the fact — and it is a fact — that they had obtained a surveillance warrant by relying on an unverified partisan screed, which proffered sensational, sinister claims, made by unidentified sources multiple levels of hearsay removed from the “fact” matters they were alleging.

The Nunes memo, for all the complaints about it, is not a mere “political instrument.” It is a part of an effort to pry information out of statutorily created agencies that oppose providing it to the body constitutionally empowered to check their work. The memo, inevitably, prompted a Democratic response. If not for the dueling memos, there would be no public evidence, and therefore nothing on which to base committee reports.

Unlike fervent Trump supporters, I do not condemn the investigation of a presidential campaign in principle. To the contrary, I have repeatedly said that, if there was strong evidence on which to base suspicions of Trump–Russia collusion, the Obama administration would have been derelict not to investigate. I also do not see this as a pro- or anti-Trump issue.

Let’s assume for argument’s sake that it turns out that there was no actionable Trump–Russia collusion, and that the FBI and Justice Department were overzealous in their investigation — the dubious FISA warrants, the Logan Act investigation of Michael Flynn, the predawn raid on Paul Manafort’s residence, etc. It would still be Donald Trump who brought into his campaign the likes of Carter Page, a jackass Kremlin apologist, and the duo of Manafort and Rick Gates, crooked collaborators with Kremlin agents. They were not planted by Barack Obama, Sally Yates, Jim Comey, Peter Strzok, et al. No matter how this turns out, we can already confidently say it is a disgrace that these characters were allowed anywhere near a presidential campaign.

That said, this was a presidential campaign, and one in which the Democratic candidate was given every break in the book to escape criminal liability despite daunting evidence. If major investigative actions were to be taken against Trump-campaign figures, there should first have been compelling, corroborated evidence (which is redundant, I know). If you want to gripe that this gives politicians a degree of immunity that others do not enjoy, that is fair — but in this system, they get it nonetheless. 

To me, it makes no sense to simultaneously (a) condemn the House Intelligence Committee for not having slam-dunk evidence for its allegations, under circumstances where the agencies under investigation are custodians of the evidence and place severe limitations on what may be accessed and disclosed publicly; and (b) soft-pedal the facts that those same agencies, which operated under no such constraints, presented a federal court with allegations of traitorous conduct that were supported by patently suspect evidence, and failed to be transparent with the tribunal regarding the provenance of that evidence — especially under circumstances where they were before a secret court in a highly classified setting, and therefore had no valid reason to conceal from the tribunal information that was manifestly relevant.

Contested Facts

David bases his analysis on the flawed premise that the dueling memos establish five “uncontested” facts. But only one of his five assertions — the least important one — is uncontested. The others, as he states them, are either not facts or convey a woefully incomplete portrait of the facts. I’ll take them in the order he lists them:

1) The so-called Steele dossier formed at least part of the Carter Page FISA application. No, the point is not that the Steele dossier formed “at least part of the Carter Page FISA application.” The point is that it formed the most significant part. The fact that we have not seen the whole application does not mean I am speculating. The FBI’s then-deputy director, Andrew McCabe, testified that there would have been no warrant application absent the Steele dossier’s allegations. (That is reported in the Nunes memo and is unrebutted by the Schiff memo. It is also elucidated in the Grassley-Graham memo, which details the lack of corroboration). 

2) The DOJ informed the court that the Steele dossier was commissioned by a person “likely looking for information that could be used to discredit” Donald Trump’s campaign. No, the DOJ did not inform the court that the Steele dossier was “commissioned” (David’s word) by a person described in the FISA application as “likely looking for information to discredit” Donald Trump’s campaign. The DOJ informed the court that Glenn Simpson (“the identified U.S. person”) was a researcher who the FBI “speculated” was “likely” looking for information to discredit Trump’s campaign. The DOJ studiously avoided mentioning who “commissioned” the dossier, which would have revealed that Simpson was working for the Clinton campaign and the DNC, whose lawyers had retained him. The DOJ similarly failed to disclose that Steele (“Source #1”), the person Simpson hired to find the discrediting information, had expressed contempt for Trump and a commitment to prevent his election.

3) The DOJ ultimately terminated Steele as a source and disclosed that termination to the FISA court. No, the DOJ did not terminate Steele. The FBI terminated Steele. I am not tendentiously quibbling with a harmless misstatement here — the distinction David has missed matters. Far from ceasing contact with Steele after the FBI terminated him, the DOJ, through one of its top officials, Bruce Ohr, continued to have contact with Steele — both person-to-person and through his wife, Nellie Ohr, a Fusion GPS contractor who collaborated with Steele on the dossier. The FISA court was not informed that the termination of Steele as an informant was not a termination of the receipt of his information. More importantly, the court was told only half the story about the reason for Steele’s termination — viz., that he had violated the media-contacts prohibition in his informant agreement. The court was not told that Steele had lied to the FBI about his contact with Yahoo News, notwithstanding that the FBI had previously represented to the court that Steele was not the source of a Yahoo News story — a story that had been pressed on the court as independent corroboration of Steele’s allegations despite the fact that Steele was the story’s main source. The Schiff memo implausibly denies that the DOJ offered the Yahoo News story as corroboration for Steele, but the Grassley-Graham memo demonstrates, by quoting from the FISA warrant application, that this is indeed what the DOJ did. (See memo p. 3, “the information contained in the September 23rd news article generally matches the information about Page that [Steele] discovered doing [his] research.”) This revelation that Steele lied to the investigators spurred Senators Grassley and Graham to refer him to the DOJ and FBI for a possible false-statements prosecution.

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