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The IG’s FBI Report – Acting Like Rogues with Purity of Motive?

The IG’s FBI Report – Acting Like Rogues with Purity of Motive?

Posted by Edmund R. Folsom, Esq.

December 13, 2019

Intro

Inspector General Horowitz’s December 9, 2019 report, “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation” provides a deeply disturbing look into the workings of the FBI.  As its title suggests, the report reviews the FBI’s handling of the Crossfire Hurricane investigation of candidate Donald Trump’s presidential campaign, and of sitting president Donald Trump, for rumored Russian collusion.  A lot has been written about the report already.  Matthew Taibbi actually does a nice bit on it in Rolling Stone magazine, Glenn Greenwald in The Intercept. I will not rehash all of that here, but I will point to a couple of matters that deserve additional attention. As the Horowitz report’s Executive Summary explains, his review was limited to,

“whether the Department and the FBI complied with applicable legal requirements, policies, and procedures…or alternatively, whether the circumstances surrounding [a given] decision indicated that it was based on inaccurate or incomplete information, or considerations other than the merits of the investigation.”

To determine whether circumstances surrounding a given decision indicated it might have been based on considerations other than the merits of the investigation, Horowitz applied the following rule:

“If the explanations we were given for a particular decision were consistent with legal requirements, policies, procedures, and not unreasonable, we did not conclude that the decision was based on improper considerations in the absence of documentary or testimonial evidence to the contrary (emphasis added).”

Is Horowitz’s no “documentary or testimonial evidence” of political bias or improper motive a “depends upon what the meaning of the word  ‘is,’ is” thing?

Under the standard Horowitz applied, if an FBI employee explained a decision in a way not grounded in illegality or a violation of FBI policies and procedures, the presumption of correctness held and Horowitz found that the decision was not based on improper considerations.  Note that Horowitz did not say the presumption of proper action could have been overcome by “evidence to the contrary.”   He said the presumption stood unless rebutted only by certain types of evidence, namely “documentary or testimonial evidence to the contrary.”  When a lawyer uses a qualifier such as this, there is a reason for it.  If the words “documentary or testimonial evidence” were meant to encompass all potential forms of evidence, including circumstantial evidence, the qualifier would be superfluous.  Horowitz could simply have stated there was no “evidence to the contrary.”  Lawyers should understand this well.  Non-lawyers were treated to an example of the way lawyers sometimes slice and dice words, superficially appearing to mean one thing while actually meaning another, in Bill Clinton’s infamous line, “It depends upon what the meaning of the word ‘is,’ is.”

In Horowitz’s investigation, it appears the only way the presumption of proper motive would have been overcome is if the person admitted improper considerations to Horowitz’s team or to another person who passed the information along to Horowitz’s team (testimonial evidence), or if the person documented improper considerations in writing (documentary evidence).  Applying this standard to the FBI’s decisions to investigate four people associated with Trump’s 2016 Presidential campaign – Carter Page, George Papadopoulis, Mike Flynn and Paul Manafort – Horowitz says he found no “documentary or testimonial evidence” that political bias or improper motive influenced these decisions.

Motive is always tough to prove by direct evidence, because we don’t have the ability to read people’s minds in real time, let alone retroactively.   When it comes to matters of the mind like motive or intent, the only direct evidence available is a person’s oral or written statements disclosing them.  Most people, especially cautious people acting on a motive they know is improper make efforts to conceal, not  advertise it.  This is why juries are routinely instructed that direct evidence is ordinarily not available to prove a person’s intent or knowledge, but that intent or knowledge may be inferred from a person’s actions and other circumstantial evidence.  So, what did Horowitz make of the circumstantial evidence here?  He does not say. The standard he applied apparently does not take circumstantial evidence into account, only documentary or testimonial evidence.  And in any event, Horowitz did not address the possibility that political or other improper motive might have influenced the FBI’s continuation of its investigations deep into 2017.  He only addressed improper motive in relation to the decision to begin the investigation.

Is a conscious choice to alter a document that another person has written, to reverse its meaning before it is submitted to the FISA Court, a mere error?

Motive aside, Horowitz points to 17 separate ways in which the FBI provided false and materially misleading information to the Foreign Intelligence Surveillance Act (FISA) Court in its applications to surveil Carter Page. Horowitz’s report refers euphemistically to these 17 deceptions as “significant inaccuracies and omissions” and as “significant errors” in the FISA applications.  To illustrate how watered-down this description is for the conduct, I will focus on just one of these 17 “errors.”

In 2016, Carter Page was a foreign policy adviser to the Trump campaign. Page was an oil industry consultant who had previously worked as a CIA asset, providing information about his contacts with certain Russian intelligence officers. The CIA deemed that the information they received from Page when he was a CIA asset was credible. Christopher Steele was a former British spy, working with Fusion GPS to gather dirt on Donald Trump on behalf of Hillary Clinton’s presidential campaign.  Steele had significant contacts with the FBI as a result of his former role in British intelligence. As a source of information for the FBI, his record was a little dodgy.  On September 19, 2016, the FBI received a document containing information that Steele assembled for the Clinton campaign, now widely known as the Steele Dossier.  Included in that information was an uncorroborated third-party claim that Carter Page was an intermediary between Russia and Paul Manafort in what what was called a “well-developed conspiracy” of cooperation.  Paul Manafort was at one point Trump’s campaign manager.  Before the FBI received the Steele Dossier, they lacked grounds to pursue a FISA Court order to surveil Page.  As Horowitz puts it, the Steele Dossier “played a central and essential role” in the FBI’s decision to seek a FISA order.  In turn, the information in the Steele Dossier became a central and essential source for the information provided to the FISA Court in support of the surveillance orders against Page.

In describing the 17 “errors” in the initial and renewal FISA applications against Page, Horowitz details the many ways in which roughly all of the information in the Steele Dossier ultimately proved bogus.  He also points out that the FBI had information demonstrating the bogus nature of certain Steele Dossier information when it made its initial FISA Court surveillance application. The FBI included the information anyway, leaving out countervailing information. Over time, the FBI received more and more information undercutting the Steele Dossier information in the initial surveillance application.  And yet, the FBI left the bogus information in its surveillance applications, failed to correct it, and presented it to the FISA court as reliable.  I will focus here on an “error,” addressed in the Executive Summary as part of item #9 of 17 “errors.”

In its initial FISA application, the FBI bolstered the Steele Dossier claim that Carter Page was a conduit in a “well-developed conspiracy” between Russia and the Trump campaign by detailing Page’s numerous contacts with Russian intelligence officials.  This information formed part of what then-FBI Director James Comey calls a “broader mosaic” of information, beyond the Steele Dossier information itself, presented to the FISA Court.  What the FBI left out of this broader-mosaic information was that many of the cited contacts occurred when Page worked as a CIA asset. The FBI had been told by the time it made its initial FISA surveillance application for Page that he was a CIA asset during the pertinent time frame. Reporting Russian intelligence contacts without reporting that the contact took place when Page was a CIA asset made the contacts appear sinister, bolstering the Steele Dossier claim that Page was a conduit in a well-developed Russia-Trump conspiracy.

At a later point, an FBI lawyer had an email exchange with a CIA employee in which the CIA employee confirmed that Page was a CIA asset during the pertinent time frame. The FBI lawyer actually altered the wording of that email, causing it to state that Page had not been a CIA asset.  The FBI lawyer then passed the altered email up the chain, where it was used to help justify a FISA renewal order.  Was the altering of that email merely an “error?”  Intentional misrepresentations are more than just “errors,” aren’t they?  Yet “error” is as far as Horowitz would go in choosing the word to describe it or the rest of the deceptions the FBI employees engaged in.

Horowitz’s report lays out a series of FBI lies, deceptions and misrepresentations to the FISA court in its applications to surveil Carter Page, from start to finish.  Let’s assume there was, in fact, no political or other improper motive involved.  That means this is how the FBI conducts itself when its motives are pure.  We should all be deeply disturbed.  Exactly what are the ends that justify these means?  Maybe we need to ask the players of Crossfire Hurricane, motives pure and true.

Addendum 12/16/19:  On Sunday, December 15, 2019, ex-FBI Directory James Comey, in charge during much of the above, appeared on Fox News for an interview by Chris Wallace.  In that interview, he claimed I.G. Horowitz did not find misconduct (which Comey later narrowed to “intentional misconduct”) in any of the FBI actions under review.  In other words, Comey denied it was misconduct for an FBI lawyer to change the wording of a CIA email to mean its opposite before feeding the doctored information into a FISA renewal application.  Asked (at 13 minutes, 9 seconds of the interview) if he would resign his post if he were CIA Director now, Comey answered:  “No, I don’t think so.  There were mistakes I consider more consequential than this during my tenure.”  Oh well then, mistakes were made on Comey’s watch more consequential than repeated misrepresentations, and document-doctoring, in FISA Court submissions used to authorize surveillance of an American citizen under the color of “collusion” between the President of the U.S. and Russia.  In the realm of out-of-control FBI surveillance “mistakes,” this is just the small stuff.  That’s comforting.

Addendum 1/24/2020.  It turns out the DOJ now admits their surveillance of Carter Page should have ended earlier than it did.  They now admit there wasn’t enough valid evidence to establish probable cause that Page was an agent of a foreign power in at least two of their FISA applications.  Let’s see, there were four FISA applications altogether.  If at least two were junk, that means the DOJ now admits that at least half its Carter Page FISA applications were junk (the others remain under DOJ review at this point).  And just keep in mind, James Comey says this is relatively insignificant compared to the other mistakes that occurred on his watch.

Addendum 2/14/2020.  Buried in the Horowitz report is this tidbit — FBI agents provided highly classified information to Christopher Steele in violation of federal law, as Steele was working on assembling what became the Steele Dossier, creating dirt on Donald Trump for Hillary Clinton’s presidential campaign.  This is another of many  FBI mistakes that occurred on James Comey’s watch.  But, by now you know what happens to FBI agents who violate federal law, lie to a federal court, or lie to other federal agents during an official investigation — nothing.