GOP memorandum exposes extraordinary catalogue of due process violations in application for surveillance warrant against Carter Page
When I read the GOP memorandum late yesterday a few hours after it was published it became immediately obvious to me why the Democrats, the Justice Department and the FBI had so strenuously resisted publishing it.
Briefly, the GOP memorandum sets out an astonishing and deeply disturbing story of selective information being provided to the FISA court in order to obtain a surveillance warrant against the Trump aide Carter Page notwithstanding that no evidence existed of any wrongdoing on his part other than – apparently – the Trump Dossier, whose compiler Christopher Steele was known by the FBI in October 2016 to have lied to them.
GOP Memorandum is a legal analysis and is the work of Gowdy not Nunes
In order to understand its importance an essential point about the GOP memorandum must be made.
Contrary to what some are saying, the GOP memorandum most definitely is a legal analysis or document and it is one which is written by a lawyer. That means that it must be read as a legal analysis or document, and it is to misunderstand it if it is read in any other way.
The lawyer in question who wrote it is Representative Trey Gowdy, a former Federal Prosecutor, who as Representative Devin Nunes has explained, was the member of the House Intelligence Committee who along with some of the Committee’s staff actually examined and researched the Justice Department’s files and who wrote the greater part of the GOP memorandum.
Any trial lawyer would instantly recognise the GOP memorandum’s phrasing and language as those of a trial lawyer, and the observations it makes on the gross violations of legal procedure which took place are very much those which a trial lawyer would be expected to make.
In fact the GOP memorandum reads to me very much like a written submission that a trial lawyer might be expected to make to an appeal Court in a case where a conviction had been wrongly obtained following gross breaches of due process (see below).
Calling the GOP memorandum the ‘Nunes memorandum’ is therefore wrong. If it is to be called by any other name than ‘the GOP memorandum’ (which is what I shall call it) then it should be called the ‘Gowdy memorandum’.
Representative Nunes did make some additions to the GOP memorandum just before it was published. Again it is obvious to a lawyer what they are, and I shall come to them shortly.
Purpose of GOP memorandum: exposing gross breaches of due process
Secondly, the GOP memorandum is concerned with one issue only, which is the gross violations of due process which it says took place in the application for the surveillance warrant against Carter Page.
It is not concerned with the truth or falsity of the Russiagate collusion allegations or the propriety or otherwise of Special Counsel Mueller’s investigation.
Due process is the means whereby a Defendant is given a fair hearing by the Court with the rules of procedure and evidence properly observed, so that the Court can decide the case justly.
Briefly, what the GOP memorandum says is that in the case of Carter Page due process was not followed, and that gross violations of his civil and constitutional rights happened in consequence.
The GOP memorandum makes this purpose completely clear in its preamble:
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.
(bold italics added)
The GOP memorandum is not concerned with the truth or falsehood of the Russiagate collusion allegations or the propriety or otherwise of Special Counsel Mueller’s investigation, though its findings obviously touch on those issues.
Lawyers’ duty to act in good faith and not to mislead the Court
Before proceeding further it is necessary to say that the overriding duty of lawyers is to the Court, and that they must never intentionally mislead the Court.
It is not only a grave abuse for them to do so, but it is actually the criminal offence of contempt of Court.
The duty of lawyers – who are officers of the Court – to act at all times in good faith when addressing the Court is an essential part of due process.
Needless to say the lawyers’ duty not to mislead the Court becomes greater still if the proceedings are conducted in secret with the Defendant not informed of the proceedings and not represented or present at the hearing during which the proceedings are decided.
At that point the lawyer’s duty is not only to provide the Court with all the information which supports the application the lawyer is making, but also to provide the Court with all the information which might cause the Court to decide that the Order sought against the Defendant should not be made.
DoJ/FBI breached duty to act in good faith and not to mislead Court when applying for FISA surveillance warrant against Carter Page
What the GOP memorandum says is that this duty the Justice Department’s and the FBI’s lawyers owe to the FISA Court was not only not observed in the case of Carter Page but was on the contrary flagrantly and utterly breached. The wording of the GOP memorandum on this point is unambiguous
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.
Not only did the lawyers fail to disclose to the FISA court information about problems in the evidence they were relying upon when they applied for the surveillance warrant but it seems that they also kept information from the FISA court which was favourable to Carter Page.
Reasons for DoJ/FBI resistance to publication of GOP memorandum
The reason there was so much resistance from within the Justice Department and the FBI to the release of the GOP memorandum is not just because its exposes these gross breaches of duty and of due process.
It is because the GOP memorandum names the officials within the Justice Department and the FBI who either committed these breaches or who bear some responsibility for them. They are Sally Yates, Dana Boente, Rod Rosenstein, James Comey, Andrew McCabe and Bruce Ohr.
It is important to say that all of these people including Comey and McCabe are lawyers.
As a result of the publication of the GOP memorandum all these individuals are now exposed to possible action against them by the Defendant whose rights they are said to have violated – Carter Page – and conceivably they might also be exposed to possible criminal action if when they committed the violations of due process they acted intentionally.
Four Red Herrings
Before discussing this further I want to deal with a number of points which are being made which in my opinion are red herrings
(1) A key point of contention between the Republicans and the Democrats in the House Intelligence Committee is whether FBI Deputy Director Andrew McCabe testified to Congress that without information taken from the Trump Dossier – which the GOP memorandum confirms provided what Nunes’s calls a ‘percentage’ of the information submitted to the FISA court – the FISA warrant would not have been obtained.
The Republicans insist that McCabe did say this in Congressional testimony. The Democrats deny that he did.
I am sure it is the Republicans who are telling the truth, for reasons which I shall set out below. However ultimately that is an argument over a matter of fact which only release of McCabe’s Congressional testimony can resolve.
The point anyway does not to seem to me to carry anything like the weight some people are attaching to it. Certainly I do not see this as the ‘critical point’ in the GOP memorandum.
Whether the FISA Judge would or would not have granted the request for the surveillance warrant without the information provided by the Trump Dossier is something McCabe can only have an opinion about, since it was the FISA Judge not McCabe who decided to grant the warrant.
The argument misses the point the GOP memorandum is making.
This is that the Justice Department and the FBI submitted in evidence to the FISA court information drawn from the Trump Dossier without properly informing the FISA court of the problems with this evidence. That was a gross violation of due process, even if nothing followed from it.
As to what those problems were, I shall discuss them below.
(2) There has been some discussion about whether Christopher Steele’s openly stated political bias against Donald Trump and his frankly expressed desire to stop Donald Trump becoming President of the United States meant that information drawn from his evidence – ie. from the Trump Dossier – should not have been shown to the FISA court.
I know of no legal principle which says that evidence provided by a biased source should not be provided to the Court, and I see nothing in the GOP memorandum which asserts this.
In my opinion this is a non-issue based on a misunderstanding of the following wording of the GOP memorandum.
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.
From this it is clear that the GOP memorandum does not say that Steele’s political bias meant that his information should not have been provided to the FISA court.
Rather what the GOP memorandum says is that the lawyers representing the Justice Department and the FBI should have told the FISA court about Steele’s political bias because it was an important fact bearing on the weight the FISA court should attach to his evidence.
That is obviously right, and if the FISA court was not told about it then it was a serious breach of the lawyers’ duty to the Court and of due process.
(3) With the credibility of the Trump Dossier now having collapsed (see below) the Democrats and much of the media have seized on certain words in the last paragraph of the GOP memorandum which refer to George Papadopoulos in order to imply that the Justice Department’s and the FBI’s application to the FISA court did not rely on the Trump Dossier but on information connected to the case of George Papadopoulos.
This is consistent with the attempt which has been underway now for some weeks to shift the basis of the Russiagate collusion case away from the Trump Dossier onto the unsteady shoulders of George Papadopoulos.
I have previously discussed this attempt here, and I have explained why George Papadopoulos’s case cannot in fact be used to sustain the collusion narrative, and why it is extremely unlikely (to put it mildly) that it really was the information about Papadopoulos which actually caused the opening of the Russiagate investigation.
I appreciate that the wording of the GOP memorandum appears to contradict the latter claim. However as I shall show, this is not as clearcut as it first seems.
The words in the GOP memorandum that touch on George Papadopoulos are these
- 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.
(bold italics added)
The first point to make about this paragraph is that the words in the paragraph which I have highlighted are almost certainly late insertions. They are in fact almost certainly the point in the GOP memorandum where a non-lawyer (Representative Nunes) has taken over from a lawyer (Representative Gowdy), with the change from legal language to ordinary spoken language obvious to any lawyer.
We know because Representative Adam Schiff has told us that Representative Nunes made certain last minute changes to the GOP memorandum. Representative Nunes has not only confirmed this, but has said that one of these changes was made at the request of the FBI.
The highlighted words fit well with Representative Nunes’s description of his changes, and I am sure that they are in fact his changes.
The reasons why I believe the highlighted words are last minute insertions is because (i) they add nothing to the points about due process, which are what the GOP memorandum is all about, and are wholly irrelevant to those points about due process; and (ii) the highlighted words consist of three sentences which do not follow sequentially from the first sentence in the paragraph – which is about due process – making it obvious that they are insertions.
In fact it is not difficult to see what the point was that the original author of the GOP memorandum – ie. Representative Gowdy – was making in this paragraph.
Gowdy’s point was that the other ‘evidence’ provided to the FISA court in support of the application for the surveillance warrant was the information provided by the Australian government that George Papadopoulos had blurted out in the Australian ambassador’s presence in a London bar that ‘the Russians had dirt on Hillary Clinton’.
However, as the GOP memorandum – ie. Gowdy – at this point says, this information was actually irrelevant in any application for a surveillance warrant against Carter Page because “there is no evidence of any cooperation or conspiracy between Page and Papadopoulos”.
If the Justice Department ‘s and the FBI’s lawyers sought to use the information about Papadopoulos to support their application to the FISA court for a warrant to carry out surveillance of Carter Page, then they were under a duty to inform the FISA court that there was no evidence of “cooperation or conspiracy” between Papadopoulos and Page.
Apparently they did not do this, leading to a further violation of due process in the application for the warrant against Carter Page.
By contrast the succeeding sentence – “the Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok” – does not touch on this question of due process, and does not follow logically from the point made in the previous sentence.
Almost certainly this sentence was inserted into the paragraph by Representative Nunes at the insistence of the FBI – we know he made one amendment made to the GOP memorandum at the request of the FBI – since the FBI has recently – now that the credibility of the Trump Dossier has collapsed – taken to using the information about Papadopoulos as its ‘get out of jail’ card by claiming that it was the information about Papadopoulos not the Trump Dossier which triggered the Russiagate inquiry.
The two sentences which follow about the anti-Trump bias of Lisa Page and Peter Strzok by contrast look like Representative Nunes’s own idea, inserted by him in order to offset the effect of the previous sentence about George Papadopoulos triggering the Trump inquiry. I say this because they too have no bearing on the violations of due process which are the subject of the GOP memorandum.
(4) Critics of the GOP memorandum have also been saying that the GOP memorandum is somehow flawed because it fails to mention that Carter Page was placed under investigation by US intelligence before in 2013.
I do not understand this point. What does the fact that Carter Page was investigated – and cleared – of being a Russian spy in 2013 have to do with a request for a FISA warrant in October 2016? Surely the fact that Carter Page had previously been cleared of suspicion of being a Russian spy was a fact in his favour? If anything it was a reason to doubt the claims about Carter Page made in the Trump Dossier, not a reason to believe them?
What does this have to do anyway with the gross violations of due process in obtaining the FISA warrants which the GOP memorandum details? Is it being suggested that those violations should be excused because Carter Page had come under suspicion before?
Briefly, if the previous investigation of Carter Page was mentioned to the FISA court – which perhaps it was – then the FISA court should have been told that the result of the previous investigation was that Carter Page was cleared of all suspicion.
The fact that the GOP memorandum has nothing to say about this probably means that this was precisely what did happen, in which case – since the stated purpose of the GOP memorandum is to set out the violations of due process which took place, not those which did not take place – it was right to omit it.
Now that the red herrings have been cleared away, the problems with the evidence the Justice Department and the FBI presented to the FISA court can be looked at.
FISA warrant application against Carter Page based largely or entirely on (1) Trump Dossier and (2) information about Papadopoulos
Firstly, it is clear that the case for the warrant against Carter Page was based on (1) information about Carter Page drawn from the Trump Dossier; and (2) the Australian warning about George Papadopoulos.
Possibly some things were also said about the investigation of Carter Page which had taken place in the past, and perhaps there were some reports of concerns about Carter Page provided by other intelligence agencies.
Carter Page’s visits to Moscow in the summer and autumn of 2016 – which were fully lawful and which were carried out entirely in the open – attracted a lot of attention, and it would not be at all surprising if some intelligence agencies took an interest in them and reported to Washington gossip about them.
However it is clear that the application for the FISA warrant was largely based on information drawn from the Trump Dossier.
I say this because it is the Trump Dossier which alone claims to provide actual reports of the secret conversations with senior Russian officials which Carter Page is supposed to have had in Moscow.
According to Representative Nunes this information about Carter Page drawn from the Trump Dossier was provided to the FISA court as if it was true. The GOP memorandum does not quite say this, but it strongly implies it
Why McCabe probably did say that without Trump Dossier FISA warrant would not have been granted
Given that it is the Trump Dossier, and almost certainly the Trump Dossier alone, which purports to report secret conversations between Carter Page and senior Russian officials, it is all but inconceivable that it did not provide the key evidence in the application for the FISA warrant, and it is all but inconceivable that this was not the key evidence which persuaded the FISA Judge to grant the FISA warrant.
That to my mind makes it all but certain that the GOP memorandum is reporting FBI Deputy Director McCabe’s testimony to Congress correctly. Almost certainly he did say that without the information provided by the Trump Dossier the FISA warrant would not have been granted. Almost certainly he did say it – or said something very close to it – because on the known facts what the GOP memorandum reports McCabe as having said is the truth: the FISA warrant would not have been granted without the information that was drawn from the Trump Dossier, and it is to say the least farfetched to argue otherwise.
Before leaving this subject there are some further points about the use of the Trump Dossier in the FISA application that I wish to make.
Vindication of Joe Lauria
Confirmation that information drawn from the Trump Dossier was used to obtain a FISA warrant completely vindicates the claim by Joe Lauria that the Trump Dossier – a report funded like the Crowdstrike report into the alleged Russian hacking of the DNC’s and John Podesta’s computers by the DNC and the Hillary Clinton campaign – was used to enable surveillance to be carried out during the election on members of Donald Trump’s campaign.
Joe Lauria’s claim that at the heart of Russiagate are two documents – the Crowdstrike report and the Trump Dossier – both of which were funded by Hillary Clinton, has been proved to be true.
The Huff Post deleted an article by Joe Lauria to that effect, insinuating that the claims Joe Lauria was making were wrong.
It is that decision of the Huff Post’s which is now shown to have been wrong.
The Huff Post owes Joe Lauria an apology and should now publish his article without further excuse or delay.
Russiagate advocates wanting it both ways on the Trump Dossier
Those such as Representative Adam Schiff who now claim that the application for the FISA warrant was not based principally on the Trump Dossier are seeking to have it both ways.
For most of 2017 they swore to the truth of the Trump Dossier, spoke of Christopher Steele in eulogistic terms, and in Representative Schiff’s case he apparently even read extracts from the Trump Dossier into the Congressional record.
A few months ago the BBC was reporting that the Trump Dossier was providing the ‘frame narrative’ for the whole Russiagate investigation.
I expressed doubts about this at the time, but subsequently it turned out to be true.
Given that this is so, it is extremely rich for these people now that the credibility of the Trump Dossier has collapsed to seek to downplay its importance to the whole Russiagate scandal and investigation.
Donald Trump has repeatedly claimed that the Russiagate scandal is a witch hunt mounted against him by his enemies.
The fact that those enemies continue to make the same claims of collusion notwithstanding that the evidence they were citing in support of those claims just a few months ago – the Trump Dossier – has been discredited shows that he is right.
Problems with Trump Dossier and information about it not disclosed to FISA court
The GOP memorandum carefully outlines the problems with the Trump Dossier.
(1) Firstly, at the time when the application for the FISA warrant was made the Trump Dossier had been only “minimally verified”.
We now know that over a year later in October 2017 the FBI admitted that the Trump Dossier had still not been verified, and it remains unverified to this day.
Accordingly – as the GOP memorandum implies – there is a very strong case to be made that no information drawn from the Trump Dossier should ever have been submitted in evidence to the FISA court at all or at any time.
Instead not only was information drawn from the Trump Dossier used to obtain the FISA warrant but according to Representative Nunes the FISA court was not told that the source of the information – the Trump Dossier – had only been “minimally corroborated”. Instead the FISA court was led to think that the information was true.
If this was so then it was a straightforward deception of the FISA court, and was the most serious violation of the duty of full disclosure the Justice Department’s lawyers and the FBI owed to the FISA court.
In that case it is the gravest single violation of due process identified by the GOP memorandum, and in my opinion constitutes a clear contempt of Court.
(2) Beyond the question of the absence of its verification, the GOP memorandum says that the Justice Department and the FBI failed to disclose the ‘political origins’ of the Trump Dossier, which it is now known was ‘research’ paid for by the DNC and by the Hillary Clinton campaign. The wording here is unambiguous
- 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.
- 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.
- 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.
Again this claim is apparently being disputed, and only full disclosure of all the material presented to the FISA court in order to obtain the FISA warrant together with a copy of the application itself can finally resolve the question of whether or not this claim is true.
However I would point out
(i) that the GOP memorandum does say that the FISA court was told that the Trump Dossier was produced at the instigation of a US citizen, though apparently that person was not identified as the DNC or the Hillary Clinton campaign;
(ii) the GOP memorandum does not actually say the the Justice Department and the FBI knew that the persons who had paid for the Trump Dossier were the DNC and the Hillary Clinton campaign at the time of the first application for the FISA warrant on 21st October 2016, merely that the Trump Dossier’s ‘origins’ were known by the Justice Department and the FBI to have been ‘political’;
(iii) that the Justice Department and the FBI have not publicly denied the claim in the GOP memorandum that the FISA court was not told that the Trump Dossier had ‘political’ origins despite the Justice Department and the FBI having always known this fact, which presumably they would do if the claim was not true;
(iv) that the GOP memorandum says that the Justice Department and the FBI were provided by Bruce Ohr with information provided by his wife who was employed by Fusion GPS which confirmed that Steele was being paid by Fusion GPS on behalf of the Hillary Clinton campaign and the DNC.
It is clear that this happened sometime after the application to the FISA court for the first surveillance warrant, which was on 21st October 2016. However the GOP memorandum says that this information was not disclosed to the FISA court over the course of the subsequent applications to renew the warrant.
The fact that the Trump Dossier had ‘political origins’ – ie. was paid for by political enemies of Donald Trump – would not have made it improper for the Justice Department and the FBI to use information drawn from it in order to support their application for a FISA warrant.
However the failure to inform the FISA court on the occasion of the first application on 21st October 2016 that the Trump Dossier had ‘political origins’ or over the course of subsequent applications that it was ‘research’ paid for by the Hillary Clinton campaign and the DNC would be another very serious violation of the duty of disclosure the Justice Department’s lawyers and the FBI owe to the FISA court if it is true.
Given that the application for the FISA warrant was made against a Trump campaign aide – Carter Page – whilst the Presidential election was underway, in my opinion this is a deception of the FISA court almost as serious as the one discussed in (1) above if what the GOP memorandum says is true and the FISA court was not told about the ‘political origins’ of the Trump Dossier or – when the fact came to light – that the Trump Dossier was paid for by the DNC and by the Hillary Clinton campaign.
In that case it would probably also be a contempt of Court.
(3) The GOP memorandum says that the FISA court was not told that Christopher Steele, the compiler of the Trump Dossier, was strongly prejudiced against Donald Trump, and was determined to prevent him being elected President.
Again this is a material fact which should have been disclosed. If it was not disclosed then there was a serious breach of the duty of disclosure. In order to decide whether it amounted to an actual contempt of Court more information about the reasons for the failure to disclose this information and the intentions of those who did not disclose it is needed.
Misconduct by Christopher Steele
The GOP memorandum has much to say about the collapse of the credibility of the Trump Dossier’s compiler Christopher Steele. It turns out
(1) That Christopher Steele was grossly biased against Donald Trump and was “passionately committed” to stopping Trump being elected President of the United States, and that the Justice Department’s lawyer Bruce Ohr was aware of the fact and communicated it to other officials within the Justice Department and the FBI;
(2) Christopher Steele grossly violated protocols by talking to the media about the Trump Dossier and the Russiagate investigation and lied about the fact to the FBI, which is a criminal offence;
(NB – this is clearly the offence Senators Grassley and Lindsey Graham say Steele may have committed in their recent letter to the Justice Department);
(3) Christopher Steele arranged for a story to be planted in the media which was mistakenly presented by the Justice Department and the FBI to the FISA court as corroboration of the information drawn from the Trump Dossier, which was used to support the application for the FISA warrant.
There has been some misrepresentation of (3), and the words of the GOP memorandum need to be read carefully
- The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article byb 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.
- 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
The GOP memorandum does not say that the Justice Department and the FBI intentionally deceived the FISA court by using the story planted in the media by Christopher Steele in order to mislead the FISA court into supposing that the Trump Dossier had been independently corroborated when this was not the case.
What the GOP memorandum says is that by planting his story in the media and then lying about the fact to the FBI, Christopher Steele deceived the Justice Department and the FBI – and by extension the FISA court – that there was independent corroboration of the Trump Dossier when in reality there was none.
The GOP memorandum does not say whether when this mistake was discovered Steele’s deception was pointed out to the FISA court during the subsequent applications to renew the warrant. The preamble of the GOP memorandum however strongly implies that it was not.
If it was not then that would have been another very serious violation of the duty of disclosure, and would in my opinion also probably be a contempt of Court.
Full disclosure of the three renewal applications is needed to resolve this question.
James Comey, Donald Trump, the Trump Dossier, Christopher Steele and Obstruction of Justice
No section of the GOP memorandum has been the subject of more misrepresentation than the part in which it makes its claims about Christopher Steele.
As I have said previously, the primary concern of the GOP memorandum is with the gross violations of due process caused by the failure of the lawyers who acted for the Justice Department and the FBI to disclose material facts about the evidence they were relying upon when they made their application for a surveillance warrant against Carter Page to the FISA court.
Critics of the GOP memorandum are now claiming that the GOP memorandum misrepresents the facts about Christopher Steele by implying that the lawyers who acted for the Justice Department and the FBI did disclose his misconduct to the FISA court.
The critics claim that Steele’s misconduct was disclosed to the FISA in the renewal applications for the FISA warrant after the full truth of his misconduct had come to light.
This is all totally wrong. The GOP memorandum does not say that the FISA court was not told about Steele’s misconduct after it came to light. Once again its words need to be read carefully
- 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.
- 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.
- Before and after Steele was terminated as a source, he maintained contact with the 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.
- 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.
- 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.
(bold in the original; bold italics added)
These words make it clear that information about Steele which was not disclosed to the FISA court was information about (1) who was paying him; and (2) his bias against Donald Trump.
The GOP memorandum by contrast does not say that the FISA court was not told over the course of subsequent renewals of the FISA warrant about Steele’s misconduct.
What the GOP memorandum says is that FBI Director James Comey did not tell Donald Trump during their meeting on 8th January 2017 – the meeting when James Comey first showed the Trump Dossier to Donald Trump – that “a source validation report conducted by an independent unit within the FBI assessed Steele’s reporting as only minimally corroborated”.
This was a further very serious violation of basic principles of fairness and due process, since Donald Trump was thereby led by Comey to think that the evidence that he had been compromised by the Russians was much stronger than it actually was.
The only possible explanation for that deception – which in the light of the conclusions of the FBI’s own source validation report and of what the FBI knew by then about Christopher Steele’s misconduct – is that Comey was either trying to trap Trump into some sort of lie or confession, or was attempting to intimidate him.
Regardless, it was a very serious breach of trust and of Comey’s duty to Donald Trump both in Trump’s potential capacity as a possible suspect in a future inquiry and as Comey’s future commander in chief.
All this matters because it has become increasingly clear in recent weeks that as the Russiagate collusion allegations have unravelled the Democrats, the media, some officials within the FBI and the Justice Department, and some officials of Special Counsel Robert Mueller’s team, are trying to refocus the investigation away from the unproved – and unprovable – collusion allegations towards obstruction of justice, with the claim being made that Donald Trump’s sacking of James Comey amounted to an obstruction of justice.
The words in the GOP memorandum show that President Trump was on the contrary entirely right to sack Comey, because the deception Comey practised upon Trump during their meeting on 8th January 2017 was at the very least a gross breach of trust and an act of gross misconduct.
The words therefore give a clear signal to the Democrats and to Mueller and Comey that any attempt to impeach Trump on grounds that Comey’s sacking was an obstruction of justice would not only be wrong in themselves but will be fiercely resisted by the Republicans in Congress, and is therefore certain to fail.
Before ending the discussion of this issue there are two further points I wish to say:
(1) Comey’s misconduct during his meeting with Trump on 8th January 2017 not only shows why trust and confidence between Comey and Trump completely broke down; it also shows why Comey felt the need to write reports of his meetings with Trump and to disseminate those reports across the bureaucracy and the media.
Comey was undoubtedly aware that his actions during the meeting with Trump on 8th January 2017 had put him in a very precarious position, and his preparing and distributing reports about his meetings with Trump was clearly intended to strengthen his position in preparation for the showdown with Trump which he must have known would sooner or later come.
In the event Comey was sacked before he was able to write anything in his reports which could seriously harm Trump.
(2) A short while ago the Guardian reported a story about a ‘second Trump Dossier’ provided to the FBI by Christopher Steele and compiled by a known Clinton associate by the name of Cory Shearer.
There have been some attempts to suggest that this ‘second Trump Dossier’ has corroborated the actual Trump Dossier.
I have already questioned this, and the GOP memorandum now confirms that this is wrong.
The Guardian says Steele provided this ‘second Trump Dossier’ to the FBI in October 2016 at a time when as the GOP memorandum shows his relationship with the FBI was starting to collapse because of his contacts with the media and his lies to the FBI about those contacts.
The GOP memorandum says that “after Steele was terminated’ – which must have been soon after Steele gave the FBI the Shearer compiled ‘second Trump Dossier’ – “a source validation report conducted by an independent unit within FBI assessed Steele’s reporting as only minimally corroborated.”
In other words the FBI must have assessed that the ‘second Trump Dossier’, like the actual Trump Dossier, was only “minimally corroborated also, since it too is obviously part of the “reporting” provided by Steele to the FBI.
The above concludes my analysis of the GOP memorandum. However for the sake of completeness there are a number of further points about it which I feel I should make
Breach of national security
In the run up to the publication of the GOP memorandum the Democrats and some officials within the Justice Department and the FBI loudly complained that its publication would in some way compromise the national security of the United States.
The text of the GOP memorandum shows that this was complete nonsense. Not only does the GOP memorandum contain no secrets the disclosure of which could in any possible way compromise the national security of the United States, but the greater part of the information in the GOP memorandum had already been disclosed to the media in leaks by officials of the Justice Department and of the FBI and by officials of Congress long before the GOP memorandum was published.
Thus it is no news that the Trump Dossier has not been verified, that it formed a key part of the evidence in the Russiagate investigation, that information drawn from it was used to obtain surveillance warrants from the FISA court, and that Christopher Steele was in contact with the FBI and with the media.
The GOP memorandum does disclose information about the application in October 2016 for the FISA warrant and about the three subsequent applications to renew the FISA warrant. However disclosure of that information does not compromise in any way the national security of the United States.
On the contrary, it is or ought to be a very serious matter that certain officials in the Justice Department and the FBI have sought to abuse the classification process in order to conceal evidence of their own misconduct.
Undermining trust in the FBI
It has been suggested that release of the GOP memorandum was wrong because it has somehow undermined the US public’s trust in the FBI, which up to now has been one of the most highly regarded institutions in the United States.
That is a bad and dangerous argument.
The FBI should not be above criticism, and exposing acts of misconduct by its leadership does not ‘undermine the public’s trust in it’. On the contrary it is essential if future misconduct is to be prevented.
What has undermined trust in the FBI is the misconduct of its leadership, disclosure of which the Justice Department and the FBI have wrongly sought to suppress.
Again I am astonished that some people who claim to be ‘progressive’ and ‘left wing’ have to have this fact explained to them.
The role of Rod Rosenstein
In the run up to the publication of the GOP memorandum there were claims that the current Deputy Attorney General Rod Rosenstein would be exposed as playing a central role in the misconduct, and that his position as Deputy Attorney General would become untenable.
I have to say that having now read the GOP memorandum, it seems to me that though Rosenstein hardly comes out well from it, he does nonetheless seem to have been a lot less culpable than some of the other Justice Department and FBI officials who are named in it.
Rosenstein appears to have become involved only at a very late stage, when the major harm was already done, and his role seems to have been limited to signing off further requests for renewals of what was by then an already existing FISA surveillance warrant.
There is a strong case for saying that he should not have done this given the gross violations of due process which had taken place before. However that still seems to me a significantly less serious matter than committing those gross violations of due process in the first place.
On the basis of what the GOP memorandum says, the persons primarily responsible for those gross violations of due process were former Deputy Attorney General Sally Yates, former FBI Director James Comey, and former FBI Deputy Director Andrew McCabe.
In light of this I think it is now easier to understand why Sally Yates and James Comey plotted against Trump in the first weeks of the new administration’s life, and why Andrew McCabe has now been forced to resign, even if the cover story that is now being out is that this has nothing to do with the GOP memorandum but was because of his supposed ‘inaction’ at a certain point during the Hillary Clinton email inquiry.
All I will say about that cover story is that if anyone believes it then I have a bridge to sell them.
As for Rosenstein, though I suspect that he will come under some criticism eventually, I do not think that what the GOP memorandum says about him is necessarily a resigning matter.
Release of Glenn Simpson’s testimony
The purpose of the recent release by the Democrats of Glenn Simpson’s testimony to the Senate Judiciary Committee has now also become clear.
Before discussing this, I would make one point. This is that over the last few weeks there have been furious denunciations by the Democrats of the decision by the Republican members of the House Intelligence Committee to ask President Trump for permission to release the GOP memorandum.
The Republican members of the House Intelligence Committee were however careful to go through the proper procedure before they released the GOP memorandum. Not only was its release discussed by the full Committee and put to a vote, but the Democrats and the Justice Department and the FBI were kept fully informed and were given every opportunity to lobby President Trump to prevent its publication.
By contrast the Democrats did not discuss the publication of Glenn Simpson’s testimony with the Republican members of the Senate Judiciary Committee in advance, nor did they seek a vote on it or even discuss the question of its publication with the Committee chairman Senator Grassley; they simply released it, with Senator Dianne Feinstein being used to do it, apparently without fully understanding the implications of what she had done (she sought to explain it away by saying that she had been suffering from a cold).
As for the claim that release of the two documents is not analogous because the GOP memorandum was classified whilst Glenn Simpson’s testimony was not, all I would say about that is that the GOP memorandum should never have been classified in the first place because it contains nothing that could remotely be called a state secret.
As for why Glenn Simpson’s testimony was published, apart from being a somewhat desperate attempt to rescue the collapsing reputation of Christopher Steele it now looks likely it was done in order to make it appear that Christopher Steele’s numerous communications with the FBI and the media were his own idea, and were not instigated by Fusion GPS or by the Democrats.
This is because the GOP memorandum shows not only that these communications were in many ways improper, but that they were far more extensive than had previously been thought.
Summary and Conclusions
The GOP memorandum is the death knell of Russiagate.
Peering through the fog of misrepresentation of what the GOP memorandum says – which will only get worse over the next few weeks – it is clear that the Russiagate collusion narrative has completely broken down with the collapse of Christopher Steele’s credibility and of the credibility of the Trump Dossier which he compiled.
Despite the passionate attempts which are now being made to argue the contrary, it is clear that the Trump Dossier provided the key evidence used to support the Russiagate collusion narrative, and the collapse of its credibility and of that of its compiler Christopher Steele means that that narrative can no longer be sustained and has also collapsed.
I doubt that there is any senior politician or official in Washington who believes in it any more, though sad to say there are some fanatics in the media who still do.
However what the GOP memorandum also reveals is something else much more serious.
Though there was good reason to doubt the Trump Dossier’s credibility from the start, the Justice Department and the FBI nonetheless cut corners and engaged in extremely serious violations of due process in order to obtain from the FISA court a warrant to carry out surveillance of one of the individuals named in it: Carter Page.
Let me stress again that these violations of due process would not be any the less serious if it could be shown – which of course it cannot be – that the request for the FISA surveillance warrant would still have been granted even if they had not happened.
As it happens, I think it is all but inconceivable that the FISA Judge would have granted the surveillance warrant when it was sought from him in October 2016 if he had been told the whole truth.
The idea that the FISA Judge would have granted a surveillance warrant on Carter Page in reliance upon a “minimally verified” dossier partly paid for by the campaign of Donald Trump’s election rival Hillary Clinton in the midst of a bitterly fought Presidential election campaign is simply too ridiculous to take seriously.
As for the ‘information’ about George Papadopoulos, which was apparently also in the application for the warrant, the idea that the FISA Judge would have granted a surveillance warrant purely on the strength of that information when there was no connection between Carter Page and Papadopoulos at a time when Papadopoulos had not even been interviewed by the FBI, is again simply too ridiculous to take seriously.
The big unresolved question which the GOP memorandum leaves unanswered is not whether these gross violations of due process happened – they obvious did – but why did they happen?
Why did the Justice Department and FBI institute a huge counter intelligence investigation in the middle of a Presidential election campaign on the strength of a “minimally corroborated” and frankly preposterous Dossier and the drunken bragging of a young man in a London bar?
Why after it had become clear that the ‘evidence’ they were relying upon – the Trump Dossier and Papadopoulos’s drunken bragging in a London bar – had no credibility did they persist with the investigation and why do they continue to persist with it to this day?
Why after the credibility of the ‘evidence’ had collapsed did they continue to carry out surveillance of Carter Page, a blameless and innocent US citizen who had done no wrong?
Why after Christopher Steele – the Trump Dossier’s compiler – had been found to have lied to the FBI and to have committed serious misconduct did the Justice Department’s lawyer Bruce Ohr – apparently with the full knowledge of his superiors – continue to communicate with him?
Why did the Justice Department and the FBI set out to trap Michael Flynn, Donald Trump’s National Security Adviser, by tricking him into a lie when he had actually done nothing unlawful or wrong, and why during their meeting on 8th January 2017 did the FBI’s Director James Comey try to do the same thing to Donald Trump (see above)?
Paranoia about Russia – which was believed to have tried to influence the election by hacking the DNC’s and John Podesta’s computers, and which had just humiliated the US in Syria – doubtless had much to do with it.
However it is difficult to avoid the conclusion that the underlying reason why all these things happened was because of extreme prejudice within the Justice Department and the senior ranks of the FBI against Donald Trump.
A clear pattern of such prejudice on the part of the senior decision makers within the Justice Department and the FBI who took these steps is now emerging, with Sally Yates, Peter Strzok and Lisa Page all expressing in vivid terms their intense hostility to Donald Trump, and with Andrew McCabe and Bruce Ohr connected through their marriages to people in the Democratic Party and in Fusion GPS who are also likely to be hostile to Donald Trump.
Beyond that there has to be a suspicion that the hostility of these people towards Donald Trump and the actions they took against him and against members of his campaign were actively encouraged by their political superiors within the Obama administration. Needless to say these superiors were not only closely connected to the Democratic Party and to Hillary Clinton herself but were also in many cases strongly hostile to Donald Trump.
It is in the overwhelmingly strong interest of the United States that the truth about all of this be told and that all these questions be answered.
The GOP memorandum is a strong start. However relying on the internal investigation by the FBI’s Inspector General which is currently underway to arrive at the truth is hardly the proper way given the well known tendency of such internal investigations to end in a whitewash.
As Senator Lindsey Graham says, a second Special Counsel to investigate the abuses and to answer these questions needs to be appointed, and this needs to be done urgently. The GOP memorandum has provided all the reasons needed to show why this must be done.
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