By Charles Lipson – RCP ContributorSeptember 03, 2019
What to Expect When You’re Expecting FISA AbuseAP Photo/Carolyn Kaster
Now that James Comey’s corruption of the FBI has been exposed, the country awaits the next report from Inspector General Michael Horowitz. This one will deal with government misrepresentations to the special court that grants secret surveillance warrants on foreign agents in the United States.
To launch a counter-intelligence investigation on an American citizen, like Carter Page, the Department of Justice applies to the Foreign Intelligence Surveillance Court. All warrants require accuracy and integrity, but those to the FISA court should meet an even-higher standard. Why? Because, unlike criminal warrants, FISA warrants remain hidden. The goal is to “spy on spies,” not haul them into court, so the application will remain secret, never challenged by a defense attorney at trial.
That’s why the DoJ and FBI must certify, in writing, that the FISA application is truthful and complete and that the evidence it presents has been thoroughly vetted by the bureau. That’s what the Obama administration’s top law-enforcement officials did when they wanted to spy on Carter Page. It is becoming increasingly clear they were lying.
Apparently, the court turned down the initial application — a very rare event — so the FBI and DoJ tried again. This time they bulked up the application with details from Christopher Steele’s dirty dossier. The dossier was paid for by Hillary Clinton’s campaign and the Democratic National Committee, using two cut-outs (the DNC’s law firm, Perkins Coie, and the opposition research firm it hired, Glenn Simpson’s FusionGPS). The FBI’s second-in-command, Andrew McCabe, told Congress that the warrant would not have been granted without the dossier.
The FBI, which also paid Steele as a “confidential human source,” never verified the dossier and did not even try until after the warrant was issued. The bureau hid the Clinton campaign’s involvement in a murky footnote. It said the informant, former British intelligence agent Christopher Steele, was reliable. What it didn’t say was that he was virulently anti-Trump and the FBI had fired him for leaking. The law required the bureau to say so to the court.
Even today, the Steele dossier has not been verified — and almost certainly cannot be. The author himself testified in Britain that he doesn’t know how much is truthful. The New York Times has suggested that it may be filled with Russian disinformation. Remember, this dodgy material was solicited and paid for by the Clinton campaign, Democratic National Committee, and the FBI.
This essential background was hidden from the FISA Court when it granted four successive warrants to spy on a U.S. citizen because he was purportedly a foreign agent. That citizen, Page, had actually been cooperating with American law enforcement and intelligence for years. He came to them on his own and spoke freely after his occasional business trips to Russia.
The decision to spy on Page came, conveniently, when the CIA, FBI, DoJ, and their political bosses wanted to know a lot more about the Trump campaign. That, almost certainly, is why they tried to entrap George Papadopoulos and spy on Page. When their initial FISA application was rejected, they added the Steele dossier, covered up its gaping problems, and certified the whole hot mess to the FISA Court.
The highest levels of the FBI and DoJ must have known it wasn’t true. They were certainly told so, in advance. We know the warnings were correct because Robert Mueller’s team investigated Page intensively, hardly mentioned him in its report, and did not indict him (or any other American) for collaborating with Russia in the 2016 election.
This sinkhole of FISA abuse is what the looming Horowitz report will detail. Although the IG cannot issue indictments, he can refer them to Attorney General Bill Barr and is very likely to do so.
We don’t know how Barr’s team will handle those referrals or the avalanche sure to come from U.S. Attorney John Durham, who is leading a criminal investigation into how the anti-Trump investigation began and how it morphed into a criminal inquiry.
Who dropped this bouquet of E-coli into the punch bowl? We know some of the culprits. It was James Comey’s FBI, including Andrew McCabe, Peter Strzok, James Baker, and several others on their hand-picked team. It was Loretta Lynch’s DoJ, where John P. Carlin headed the national security team. It was the intel agencies run by John Brennan and James Clapper. It was Susan Rice’s national security team at the White House, busy unmasking hundreds of names of U.S. citizens picked up in foreign surveillance. Still more surveillance was outsourced to friendly foreign intel agencies, which didn’t need warrants to spy on U.S. citizens. Those agencies relayed their findings to the CIA, a backdoor trick to spy on Americans.
These actions look like political surveillance masquerading as national security, executed by political appointees across the executive branch. So … who authorized it? Who coordinated it? How high up did it go? We need answers, under oath.
We don’t know what role President Obama’s top aides played in these machinations. Nor do we know the roles played by the president himself and his vice president, Joe Biden. All we know, so far, is that Peter Strzok and Lisa Page, who were central to the FBI investigation, texted about it on Aug. 5, 2016. The key text says, “The White House is running this.” Three years later, we still don’t know what that means.
Horowitz’s upcoming report will begin to answer the questions. Durham’s probe will answer still more, even though it is apparently limited to the origins of the anti-Trump investigations, at least so far. We will need to know how those investigations evolved, who ran them, and who consumed the political intelligence.
Who was the real target? It must have been Trump’s inner circle and perhaps the insurgent candidate himself. After all, Carter Page and George Papadopoulos were minnows. Surely, spying on them (and probably others like them) was meant to pry open communications with major players, to catch the big fish.
The biggest fish of all was Trump himself, first in the campaign, then in the transition, and finally in office. He was never briefed that Russia might have been trying to penetrate his campaign, as Sen. Dianne Feinstein was briefed about a Chinese spy on her staff. He was treated more like an adversary than a candidate who needed protection from malevolent foreign actors.
We know Comey falsely told the president-elect he was never under investigation. Actually, the FBI director was personally gathering information on him as part of the probe, code-named “Crossfire Hurricane.” After conveying the barest outlines of the Steele dossier to Trump (the infamous Jan. 7, 2017, meeting), Comey ran immediately to his mobile computer, wrote up the conversation, met with others on the investigative team by secure teleconference, and kept his notes out of the FBI’s filing system, where they could be searched and evaluated.
Comey’s M.O. in that meeting matches his decision three weeks later to try and trap Gen. Michael Flynn, Trump’s national security adviser, at the White House. Since the FBI already had tape of Flynn’s phone call with Russian Ambassador Sergey Kislyak, their only purpose in asking about it was to snag him and, ideally, to flip him on the president.
This conduct goes beyond sleazy. It goes beyond Comey and Brennan, the FBI and CIA. It points to something very big and very nasty in the final year of the Obama administration, orchestrated by its most senior appointees.
Was there a deliberate, multi-pronged effort to use the government’s most powerful tools to undermine a free and fair election and, after Trump was elected, to hobble or unseat him?
We cannot say that yet. But we cannot rule it out, either. We need to know. If there was a concerted, illegal effort by our own government to take down a presidential candidate and then the country’s new leader, it would represent a noxious, frontal assault on America’s constitutional order. That’s true whether you like Trump or loathe him.
Short of that, there seems to have been a broad-based effort to conduct domestic political surveillance, led by high-level Obama appointees. If that happened, we need to hold the perps to account. They need to defend their actions in open court.
Charles Lipson is the Peter B. Ritzma Professor of Political Science Emeritus at the University of Chicago, where he founded the Program on International Politics, Economics, and Security. He can be reached at charles.lipson@gmail.com.
