The Schiff Memo Harms Democrats More Than It Helps Them By Andrew C. McCarthy
It confirms that the FBI and the DOJ relied heavily on uncorroborated, third-hand, anonymous sources in their FISA application.
Maybe Adam Schiff has more of a sense of humor than I’d have given him credit for. The House Intelligence Committee’s ranking Democrat begins his long-awaited memo — the minority response to the Nunes memo that was penned by staffers of the committee’s Republican majority — by slamming Chairman Devin Nunes’s unconscionable “risk of public exposure of sensitive sources and methods for no legitimate purpose.” The Schiff memo, which has been delayed for weeks because the FBI objected to its gratuitous effort to publicize highly classified intelligence, including methods and sources, then proceeds to tell its tale through what appear to be scores of blacked-out redactions of information Schiff pushed to expose.
Heavy Reliance on Steele Dossier Confirmed
The FBI and the Justice Department heavily relied on the Steele dossier’s uncorroborated allegations. You know this is true because, notwithstanding the claim that “only narrow use” was made “of information from Steele’s sources,” the Democrats end up acknowledging that “only narrow use” actually means significant use — as in, the dossier was the sine qua non of the warrant application. The memo concedes that the FISA-warrant application relied on allegations by Steele’s anonymous Russian hearsay sources that:
Page met separately while in Russia with Igor Sechin, a close associate of Vladimir Putin and executive chairman of Roseneft, Russia’s state-owned oil company, and Igor Divyekin, a senior Kremlin official. Sechin allegedly discussed the prospect of future U.S.-Russia energy cooperation and “an associated move to lift Ukraine-related western sanctions against Russia.” Divyekin allegedly disclosed to Page that the Kremlin possessed compromising information on Clinton (“kompromat”) and noted the possibility of its being released to Candidate #1’s [i.e., Donald Trump’s] campaign. . . . This closely tracks what other Russian contacts were informing another Trump foreign policy adviser, George Papadopoulos.
This passage puts the lie to two of the main Democratic talking points:
1) This was obviously the most critical allegation against Page. The Democrats attempt to make much of Page’s trip to Moscow in July 2016, but the uncorroborated Sechin and Divyekin meetings, which Page credibly denies, are the aspect of the Moscow trip that suggested a nefarious Trump–Russia conspiracy. That’s what the investigation was about. Far from clandestine, the rest of Page’s trip was well publicized and apparently anodyne. And saliently — for reasons we’ll get to in due course — Page was clearly prepared to talk to the FBI about the trip if the Bureau wanted to know what he was up to.
It is the Steele dossier that alleges Page was engaged in arguably criminal activity. The Democrats point to nothing else that does.
Moreover, because Page was an American citizen, FISA law required that the FBI and the DOJ show not only that he was acting as an agent of a foreign power (Russia), but also that his “clandestine” activities on behalf of Russia were a likely violation of federal criminal law. (See FISA, Section 1801(b)(2)(A) through (E), Title 50, U.S. Code.) It is the Steele dossier that alleges Page was engaged in arguably criminal activity. The Democrats point to nothing else that does.
2) Democrats implausibly insist that what “launched” the FBI’s counterintelligence investigation was not Steele’s allegations but intelligence from Australia about George Papadopoulos’s contact with what Democrats elusively describe as “individuals linked to Russia.” As we learned when Papadopoulos pled guilty, though, it is anything but clear that these “individuals linked to Russia” had much in the way of links to Putin’s regime: London-based academic Joseph Misfud, who is from Malta and apparently does not speak Russian; an unidentified woman who falsely pretended to be Putin’s niece; and Ivan Timofeev, a program director at a Russian-government-funded think tank.
Even if we assume for argument’s sake that these characters had solid regime connections — rather than that they were boasting to impress the credulous young Papadopoulos — they were patently not in the same league as Sechin, a Putin crony, and Divyekin, a highly placed regime official. And that, manifestly, is how the FBI and the DOJ saw the matter: They sought a FISA warrant on Page, not Papadopoulos. And, as the above-excerpted passage shows, they highlighted the Steele dossier’s sensational allegations about Page and then feebly tried to corroborate those allegations with some Papadopoulos information, not the other way around. (More on that when we get to Schiff’s notion of “corroboration.”)
Concealing the Dossier’s Clinton-Campaign Origins
Another major takeaway from the Schiff memo is that the FBI and the DOJ withheld from the FISA court the fact that Steele’s work was a project of the Clinton campaign. Naturally, the reader must ferret this admission out of a couple of dense paragraphs, in which Democrats risibly claim that the “DOJ was transparent with the Court about Steele’s sourcing.”
How’s this for transparency? The FISA warrant application says that Steele, referred to as “Source #1,” was “approached by” Fusion GPS founder Glenn Simpson, referred to as “an identified U.S. person,” who
indicated to Source #1 that a U.S.-based law firm had hired the identified U.S. Person to conduct research regarding Candidate #1’s [i.e., Trump’s] ties to Russia. (The identified U.S. Person and Source #1 have a longstanding business relationship.) The identified U.S. Person hired Source #1 to conduct this research. The identified U.S. Person never advised Source #1 as to the motivation behind the research into Candidate #1’s ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1’s campaign. [Emphasis in Schiff memo, p. 5]
The first thing to notice here is the epistemological contortions by which the DOJ rationalized concealing that the Clinton campaign and the DNC paid for Steele’s reporting. They ooze consciousness of guilt. If you have to go through these kinds of mental gymnastics to avoid disclosing something, it’s because you know that being “transparent” demands disclosing it.
Next, Schiff — again, hilariously enough to make you wonder if it’s done tongue-in-cheek — accuses Nunes of hypocrisy for condemning the omission of Mrs. Clinton’s name after having rebuked the Obama administration’s “unmasking” of American names. Of course, the two things have nothing to do with each other.
“Unmasking” refers to the revelation of American identities in intelligence reports. These are Americans who, though not targeted as foreign agents, are incidentally intercepted in surveillance. In marked contrast, we are talking here about a FISA warrant application, not an intelligence report. In a warrant application, it is the DOJ’s honorable practice, and the judiciary’s expectation, that the court must be informed about the material biases of the sources of the factual allegations that the DOJ claims amount to probable cause.
As the Democrats’ own excerpt from the FISA application illustrates, unmasking has nothing to do with it, because there is no need to use names at all: Note that Simpson is referred to as “an identified U.S. person”; Perkins-Coie is referred to as “a U.S.-based law firm.” The dispute here is not about the failure to use the words “Hillary Clinton.” They could have referred to “Candidate #2.” To state that “Candidate #2” had commissioned Steele’s research would have been just as easy and every bit as appropriate as the DOJ’s reference to a “Candidate #1,” who might have “ties to Russia.” Had DOJ done the former, it would not have “unmasked” Hillary Clinton any more than Donald Trump was unmasked by DOJ’s description of him as “Candidate #1”; but it would have been being “transparent” with the FISA court. By omitting any reference to Clinton, the DOJ was being the opposite of transparent.
Two other things to notice here.
1) The DOJ’s application asserted: “The identified U.S. Person never advised Source #1 as to the motivation behind the research into Candidate #1’s ties to Russia.” There is only one reason to include such a statement: The DOJ well understood that the implied biases in the process of compiling the dossier’s allegations, including Steele’s implied biases, were material to the FISA court’s evaluation. A prosecutor does not get to tell a judge reasons that a source’s reports should be thought free of bias while leaving out why they should not be thought free of bias. If you know it’s necessary to disclose that “identified U.S. person” Simpson was being paid by “a U.S.-based law firm” (Perkins-Coie), then it is at least equally necessary to disclose that, in turn, the law firm was being paid by its clients: the Clinton campaign and the DNC. To tell half the story is patently misleading.
2) Schiff comically highlights this DOJ assertion as if it were his home run, when it is in fact damning: “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 is the vague reference that Democrats and Trump critics laughably say was adequate disclosure of the dossier’s political motivation. But why would the FBI “speculate” that a political motive was “likely” involved when, in reality, the FBI well knew that a very specific political motive was precisely involved?
There was no reason for supposition here. If the FBI had transparently disclosed that the dossier was a product of the Clinton campaign — oh, sorry, didn’t mean to unmask; if the FBI had transparently disclosed that the dossier was a product of “Candidate #2’s” campaign — then the court would have been informed about the apodictic certainty that the people behind the dossier were trying to discredit the campaign of Candidate #2’s opponent. It is disingenuous to tell a judge that something is “likely” when, in fact, it is beyond any doubt.
The Issue Is the Credibility of Steele’s Informants, Not of Steele Himself
When the Justice Department seeks a warrant from a court, the credibility that matters is not that of the agent who has assembled the information from the informants; it is that of the informants who observe the fact matters that are claimed to be a basis for finding probable cause. That is, what mattered was the credibility of Steele’s anonymous Russian sources, not the credibility of Steele himself. By dwelling on the countless reasons why Schiff is wrong about the adequacy of the disclosure of Steele’s biases, I am falling into the trap I have warned against (here, and in section C here).
The FBI and the DOJ relied vicariously on Steele’s credibility, as a substitute for their failure to corroborate his informants’ information. It was improper to do this.
To be clear, the only reason Steele’s own biases have any pertinence is that the FBI and the DOJ relied vicariously on Steele’s credibility, as a substitute for their failure to corroborate his informants’ information. It was improper to do this. Yet even if a prosecutor goes down a certain road wrongly, the duty to be candid with the tribunal still applies. The prosecutor is obliged to tell the whole story about potential bias, not a skewed version.
Schiff’s memo struggles mightily, and futilely, to demonstrate that Steele’s credibility issues were sufficiently disclosed. But that is a side issue. The question is whether Steele’s informants were credible. To the limited extent that committee Democrats grapple with this problem, they tell us that, after the first FISA application, the FBI and the DOJ provided additional information that corroborated Steele’s informants. There are four problems with this:
1) It would not justify using uncorroborated allegations in the first warrant.
2) The supposedly corroborative information is blacked out; while that may be an appropriate protection of sensitive intelligence, we are still left having to take Schiff’s word for it.
3) Taking Schiff’s word for it would be unwise given his memo’s warped conception of “corroboration.” Recall the Schiff memo passage excerpted in the first section above. In the last part, the Democrats argue that the dossier claim that Page met with Kremlin official Divyekin was somehow corroborated because it “closely tracked” what Papadopoulos was hearing from his dubious “Russian contacts.” But the supposed “Russian contacts” were telling Papadopoulos that the Kremlin had thousands of Clinton-related emails. That did nothing to confirm Steele’s claim that Page had met with Divyekin, a top regime official; nor did it corroborate that the “kompromat” Divyekin referred to was the same thing as the emails that Papadopoulos’s “Russian contacts” were talking about. (Of course, it may well be that Page never actually met with Divyekin and that Papadopoulos’s sources were wrong about emails; if so, committee Democrats are in the strange position of contending that the non-existent can corroborate the non-existent.)
4) Most significantly, Democrats seem not to grasp that the flaw here lies not merely in the failure to corroborate the information from Steele’s sources. There appears not even to be corroboration that these sources existed — i.e., that they are real people whose claims are accurately reported. Indeed, it is worse than that. Even if we stipulate for argument’s sake that Steele’s anonymous Russian informants are authentic, they are generally hearsay witnesses, one or more steps removed from the events they relate. The real question, then, is whether the informants’ sources are real, identifiable, reliable informants. Based on what has been disclosed, we must assume that the FBI did not know. That is why the DOJ inappropriately tried to rely on Steele’s credibility.
The FBI Interviews of Carter Page
In the course of providing a skewed portrait of Carter Page’s background, the Schiff memo unintentionally highlights another deep flaw in the warrant application.
The memo limns Page as a master spy with disturbing “connections to Russian Government and Intelligence Officials” — which will be amusing to anyone who has seen an interview of Page, now a ubiquitous oddball media presence. What Democrats conveniently omit is that (a) Page cooperated with the FBI and Justice Department in a prior investigation in which his information was used to prosecute Russian spies; (b) the Russian spies explicitly regarded him as an “idiot” (and they had not even seen him on cable TV); and (c) since Russian operatives can be as diabolical and sophisticated as the Democrats suggest, they would have known that Page did not have the kind of relationship with Trump that would have made Page a suitable conduit for proposing traitorous deals — and as we’ve seen, the Russians had far better ways to approach Trump (e.g., the Kremlin-connected oligarch Aras Agalarov, who had a personal relationship with Trump and orchestrated the infamous June 2016 Trump Tower meeting).
The memo does note that “the FBI also interviewed Page multiple times about his Russian intelligence contacts.” Apparently, these interviews stretch back to 2013. The memo also lets slip that there was at least one more interview with Page in March 2016, before the counterintelligence investigation began. We must assume that Page was a truthful informant since his information was used in a prosecution against Russian spies and Page himself has never been accused of lying to the FBI.
Why didn’t the FBI call Page in for an interview rather than subject him to FISA surveillance? It is a requirement of FISA law.
So . . . here’s the question: When Steele brought the FBI his unverified allegations that Page had met with Sechin and Divyekin, why didn’t the FBI call Page in for an interview rather than subject him to FISA surveillance? Lest you wonder, this is not an instance of me second-guessing the Bureau with an investigative plan I think would have been better. It is a requirement of FISA law.
When the FBI and DOJ apply for a FISA warrant, they must convince the court that surveillance — a highly intrusive tactic by which the government monitors all of an American citizen’s electronic communications — is necessary because the foreign-intelligence information the government seeks “cannot reasonably be obtained by normal investigative techniques.” (See FISA, Section 1804(a)(6)(C) of Title 50, U.S. Code.) Normal investigative techniques include interviewing the subject. There are, of course, situations in which such alternative investigative techniques will inevitably fail — a mafia don or a jihadist is not likely to sit down with FBI agents and tell them everything he knows. But Carter Page was not only likely to do so, he had a documented history of providing information to the FBI.
It would be very interesting to see what the DOJ told the FISA court about why normal investigative techniques would not suffice to pry information from Page. They certainly seem to work fine for Fox News.
The Page Surveillance Enabled Interception of Past Communications
The Schiff memo repeats the canard that the Obama administration was not really spying on the Trump campaign because the DOJ waited until the Trump campaign cut ties with Page before seeking a surveillance warrant. What Democrats fail to mention is that the surveillance enabled the FBI to intercept not only his forward-going communications but also any stored emails and texts he might have had. Clearly, they were hoping to find a motherlode of campaign communications. Remember, Page was merely the vehicle for surveillance; the objective was to probe Trump ties to Russia.
The “Closely Held Investigative Team”
Schiff is determined to run with the implausible story that George Papadopoulos is the face that launched a thousand ships — that Papadopoulos’s boozy conversation with an Australian diplomat, not the Steele dossier’s allegations of a traitorous Trump–Russia conspiracy, was the true impetus for the counterintelligence investigation. Schiff maintains that the FBI was therefore not even paying attention to Steele until long after the Papadopoulos information came in. That is, even though the Bureau started receiving Steele’s reports in July 2016, they did not make their way to the FBI’s “closely held investigative team” for some seven weeks — i.e., until mid September. This team is described elsewhere (p. 3) in the Schiff memo as “the counterintelligence team investigating Russia at FBI headquarters.” Of course, by mid September, Steele and Fusion GPS were leaking Steele’s allegations to many favored reporters, so perhaps Schiff is saying that the “closely held investigative team” read about them in the news.
It is, in any event, a frivolous point. The fact that the Bureau administratively opened a case on Papadopoulos does not mean that much of anything was done on it. As we know, investigators did not even interview Papadopoulos until late January 2017, after Trump had already taken office and about six months after they received the info about Papadopoulos. By contrast, once the “closely held investigative team” got the Steele dossier, the FBI and the DOJ were at the FISA court’s doorstep tout de suite. And to repeat, they got a surveillance warrant for Page, not Papadopoulos.
Meantime, Schiff needs to make up his mind about the significance of the “closely held investigative team.” Near the end of the memo, he raps Nunes for pointing to the anti-Trump animus evident in the texts of FBI agent Peter Strzok and FBI lawyer Lisa Page. These Bureau officials are not important, Schiff says, because neither of them was the “affiant” on any of the FISA warrant applications.
But wait: Strzok and Page were part of the “closely held investigative team,” which Schiff has only just told us are the only FBI personnel who matter. Anyway, though he is wont to remind us every few minutes that he is a former prosecutor, Schiff seems unfamiliar with how investigations work. The affiant on a warrant application aggregates the information of many agents and informants. A warrant is a team effort, which I had thought was why Schiff stressed the “closely held investigative team.” And Page was a lawyer, not an agent, so though she would presumably not be the affiant on a warrant application, she may well have participated in the FBI’s legal review of the applications, which occurs both in-house and in consultation with Justice Department lawyers.
Four Different FISA-Court Judges
Schiff makes much of the fact that the four FISA warrants (the original authorization and three renewals, at 90-day intervals) were signed by four different FISA-court judges — all apparently appointed to the federal district courts by Republican presidents. This hardly commends the validity of the warrants.
In criminal surveillance orders, for example, it is common for prosecutors to bring renewal applications back to the same judge who authorized the original surveillance. That judge presumably knows the case better and is thus in a superior position to detect any irregularities. If FISA surveillance works differently, that would be another reason for critics to fear that the court is merely a rubber stamp. (For what it’s worth, I don’t share the view that the FISA court merely rubber-stamps applications. The process is a give-and-take one, and though the FISA court rarely rejects warrants, the DOJ does modify many warrants in response to the court’s concerns. Moreover, since surveillance of foreign threats to the U.S. is an executive responsibility, the court should approve them unless it appears that the FBI and the DOJ are abusing the process.)
In any event, the issue here is failure to disclose information to the court. If a judge was not made aware of material facts, the judge’s authorization of a warrant does not validate the derelict application. (That said, it is difficult to understand why judges would not be troubled by the lack of corroboration of Steele’s unidentified Russian hearsay informants.)
The Basis for Steele’s Termination as an FBI Informant
The FISA judges were not told that Steele had lied to the FBI about contacts with the press.
The Schiff memo is disingenuous in claiming that the warrant applications were forthright with the FISA court about the reasons for Steele’s termination as an FBI source. The Grassley-Graham memo explains (as I’ve previously detailed) that the court was apparently told that Steele was dismissed over contacts with the press. The FISA judges were not told that Steele had lied to the FBI about contacts with the press.
Papadopoulos and the Clinton Emails
Committee Democrats misrepresent a significant fact derived from Special Counsel Mueller’s statement of Papadopoulos’s offense (filed when the latter pled guilty). The Schiff memo states
We would later learn in Papadopoulos’s plea that the information the Russians could assist by anonymously releasing were thousands of Hillary Clinton’s emails.
What we actually learned in Papadopoulos’s plea was that his dubious Russian sources had heard that the Kremlin had the emails. There is no indication that the Kremlin in fact had the emails; the Kremlin apparently provided no emails to Papadopoulos (or anyone else in Trump’s orbit); and there is no evidence that the “Russia-linked” people to whom Papadopoulos spoke knew what they were talking about — it is at least as plausible that they were playing Papadopoulos.
The Use of a Media Report to ‘Corroborate’ Steele
Committee Democrats make a highly unlikely claim about the DOJ’s controversial use in the FISA warrant applications of a Yahoo News report by journalist Michael Isikoff. The claim appears to be contradicted by both the aforementioned Grassley-Graham memo and by the Isikoff article itself.
Specifically, the Schiff memo denies the Republican claim that the DOJ tried to corroborate Steele’s allegations by relying on Isikoff’s media story, dated September 23, 2016. Rather, Schiff says the Isikoff report was mentioned for a righteous purpose: “to inform the Court of Page’s public denial of his suspected meetings in Russia” (with Sechin and Divyekin). The memo further claims that the FISA application cited another news story along these lines, but that the Nunes memo withheld this detail.
Schiff’s version has two problems.
1) While it is true (as noted above) that Page denies meeting Sechin and Divyekin, it is not true that this denial is reported in Isikoff’s article. Instead, Isikoff reported that Page “declined repeated requests to comment for this story.” He added that, while in Moscow in July 2016, “Page declined to say whether he was meeting with Russian officials during his trip” — not that he denied doing so. Isikoff, who is a superb reporter, also took pains to explain that it was merely “alleged” that Page had met with high-ranking Russians — that is, the meetings had not been confirmed. But there is nothing in Isikoff’s article about Page himself denying that they occurred. It is therefore hard to understand why the DOJ would, as Schiff suggests, include the article as a way of informing the court that Page denied the meetings.
2) Schiff’s version is contradicted by the Grassley-Graham memo, which quotes the FISA warrant application. Senators Charles Grassley and Lindsey Graham recount (memo, p. 3) that “the FISA applications note the existence of” Isikoff’s article, “which in particular contained some of the same dossier information about Mr. Page compiled by Mr. Steele and on which the FBI relied in its application.” The senators then quote from the FISA application, which said:
Given that the information contained in the September 23rd news article generally matches the information about Page that [Steele] discovered during his/her research, [two lines redacted.] The FBI does not believe that [Steele] directly provided this information to the press. [Emphasis added, brackets in original.]
The senators’ memo strongly suggests that Nunes is right and Schiff is wrong: The Isikoff article was used precisely because, to quote the DOJ again, it “generally matched” Steele’s allegations about Page. In effect, the DOJ was using Steele to corroborate Steele.
Schiff’s Defense of Bruce Ohr
Schiff’s attack on the Nunes memo for referring to top Justice Department official Bruce Ohr’s connections with Steele is utterly unpersuasive — a “How dare you” argument that rests on Schiff’s description of Ohr as “a well-respected career professional.”
Republicans did not attack Ohr personally or belittle his law-enforcement credentials. To the contrary, the Nunes memo argued that because Ohr was a high-ranking official — the right-hand of Deputy Attorney General Sally Yates, who was effectively running DOJ — it should have been disclosed to the court that (a) Ohr was meeting with Steele about the anti-Trump project; (b) Steele had told Ohr in September (i.e., before the first FISA application) that he “was desperate that Donald Trump not get elected and was passionate about him not being president”; and (c) Ohr’s wife, Nellie Ohr, was a Russia expert at Fusion who was collaborating with Steele on the dossier. If Schiff thinks that is unreasonable, I expect most people will disagree.
Conclusion
In sum, the Schiff memo does more to harm than to advance the Democrats’ defense of the Obama administration and the use of the FISA process by the FBI and the DOJ.
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