Published by The Lawfare Institute
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When you see folks crowing about errors in Foreign Intelligence Surveillance Act (FISA) applications and the misconduct described in the inspector general’s report released on Dec. 9, take a deep breath and try to remember the allegations that sparked this review of the Russia investigation. It wasn’t that long ago. You can do it if you try. The allegations weren’t about sloppy handling of a FISA application, serious though that issue undoubtedly is. They weren’t even about an FBI lawyer altering an email.
They were about whether the FBI’s Russia investigation was a malicious “WITCH HUNT!”:
The president repeatedly accused FBI officials of “treason”—and of plotting a coup.
Citing a text from Peter Strzok to Lisa Page, he declared that the Russia investigation was an “insurance policy” against his election—and that the texts between them revealed the deep political bias that drove the entire investigation.
The attorney general warned darkly of FBI “spying” on the Trump campaign and publicly questioned whether the Russia investigation was properly predicated.
A veritable industry arose suggesting that the investigation began earlier than the FBI acknowledged, an industry the attorney general personally helped cultivate.
The president suggested that his wires had been tapped, even as Devin Nunes insisted that the FBI was engaged in illegal surveillance of Carter Page.
We were assured of scandal related to the FBI’s use of confidential informants, just as we were assured that the entire investigation was predicated on the “dossier” of Christopher Steele.
Hundreds and hundreds of television hours and countless articles, each more breathless than the next, were devoted to propagating these claims, which were repeated so often that they have become truths for millions of Americans. Even though they were never true.
On Dec. 9, Justice Department Inspector General Michael Horowitz declared in more than 450 pages that the “Witch Hunt” narrative was nonsense. Yes, the investigation had problems—some of them serious. But the problems were not political in character. There was no effort to “get” candidate Trump. There was no “insurance policy.” There was no coup. There was no treason.
There was, rather, a properly predicated investigation that began when the FBI has always said it began and because of the information the FBI has always said triggered it. The investigation used proper investigative techniques. And while there were errors along the way, a degree of sloppiness that warrants addressing seriously, the inspector general does not find that any authorized surveillance was illegal.
I have not read the report in detail yet. But here are some initial thoughts following an effort to digest its major findings quickly.
Perhaps the most important calumny thrown the FBI’s way over the past two years has been the idea that there was a “deep state” coup plotted there by treasonous bureaucrats out to sink the Trump campaign, and later the Trump presidency. As Trump likes to tell the story, Strzok and Page were at the center of the plot and the text between them about the “insurance policy” was a kind of lynchpin. The insurance policy in case Trump won the election was the Russia investigation.
But Horowitz—who has been sharply critical of Strzok and Page over their text messages—makes clear that the investigation’s opening had nothing to do with politics:
We found that while she attended some of the discussions, Lisa Page did not play a role in the decision to open Crossfire Hurricane or the four individual cases. Strzok was directly involved in the decisions to open Crossfire Hurricane and the four individual cases, but we found that he was not the sole, or even the highest level decision maker as to any of those matters. [Bill] Priestap, Strzok’s supervisor, told us that ultimately he was the official who made the decision to open the Crossfire Hurricane investigation, and Strzok then prepared and approved the formal documentation, as required by the DIOG. Evidence reflected that this decision by Priestap was reached by consensus after multiple days of discussions and meetings that included Strzok and other leadership in CD, the FBI Deputy Director, the FBI General Counsel, and the FBI Deputy General Counsel. We similarly found that the decisions to open the four individual cases were reached by consensus of Crossfire Hurricane agents and analysts who identified individuals associated with the Trump campaign who had recently travelled to Russia or had other alleged ties to Russia, and that Priestap was involved in those decisions. The formal documentation opening each of these four investigations was approved by Strzok, as required by the DIOG.
We did not find documentary or testimonial evidence that political bias or improper motivation influenced Priestap’s decision to open Crossfire Hurricane. The evidence also showed that FBI officials responsible for and involved in the case opening decisions were unanimous in their belief that, together with the July 2016 release by WikiLeaks of hacked DNC emails, the Papadopoulos statement described in the FFG information reflected the Russian government’s potential next step to interfere with the 2016 U.S. elections. These FBI officials were similarly unanimous in their belief that the FFG information represented a threat to national security that warranted further investigation by the FBI. Witnesses told us that they did not recall observing during these discussions any instances or indications of improper motivations or political bias on the part of the participants, including Strzok.
Note an interesting feature of this passage. The investigation was not an investigation of the Trump campaign. It was four investigations of individuals—Carter Page, George Papadopoulos, Paul Manafort and Michael Flynn—associated with the campaign but about whom there was specific reason for concern. In other words, investigators were not spying on the Trump campaign. They had concerns about specific people and their relationship with Russia, just as the FBI has always said.
This, of course, raises the question of whether the FBI had adequate predication for these investigations. What does Horowitz say on this point?
We ... concluded that the FBI had sufficient predication to open full counterintelligence investigations of Papadopoulos, Page, Flynn, and Manafort in August 2016. The investigation of Papadopoulos was predicated upon his alleged statements in May 2016 to an employee of [an allied foreign government]. According to the opening [electronic communication], Papadopoulos was “identical to the individual who made statements indicating that he is knowledgeable that the Russians made a suggestion to the Trump team that they could assist the Trump campaign with an anonymous release of information during the campaign that would be damaging to the Clinton campaign.” The three other cases were predicated on information developed by the Crossfire Hurricane team through law enforcement database and open source searches, conducted to determine which individuals associated with the Trump campaign may have been in a position to have received the alleged offer of assistance from Russia.
This brings me to the next key point: The investigation did, in fact, begin when the Australian government communicated to the U.S. information about Papadopoulos’s conversation with the former foreign minister, Alexander Downer, in London:
In Crossfire Hurricane, the “articulable factual basis” set forth in the opening EC was the FFG information received from an FBI Legal Attache stating that Papadopoulos had suggested during a meeting in May 2016 with officials from a “trusted foreign partner” that the Trump team had received some kind of suggestion from Russia that it could assist by releasing information damaging to candidate Clinton and President Obama. Additionally, by July 31, 2016, although not specifically mentioned in the EC, the FBI had reason to believe that Russia may have been connected to the WikiLeaks disclosures that occurred earlier in July 2016.
The report makes clear that the Steele dossier had nothing to do with the predication of the investigation. “How many trees died and pixels were scrambled peddling the lie that Steele dossier kicking off the probe?” asked Jonathan Alter pithily on Twitter today. All of the trees died in vain. Here’s what Horowitz has to say on the subject: “FBI Headquarters and the members of the Crossfire Hurricane team did not receive the first Steele reports until September 19—weeks after the Crossfire Hurricane investigation was opened—and were not aware of any of the information in the reports prior to that date.” It also “found no evidence that the FBI undertook any investigative activities directed at the Trump campaign or members of the Trump campaign before opening Crossfire Hurricane on July 31, 2016.”
And no, the infamous Maltese professor, Joseph Mifsud, who supposedly told Papadopoulos about the Russian plans—who was believed by the FBI to be a Russia cutout but was widely believed in the right-wing fever swamp to be a U.S. asset of some kind—was not working for the FBI, after all: “[T]he OIG searched the FBI’s database of Confidential Human Sources (CHSs) and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation.”
But surely there was mishandling of confidential informants, right? Something too aggressive with respect to some European academic or some beautiful young woman sent to lure innocent patriots to Trump’s doom? Well, nope. While Horowitz criticizes aspects of the FBI’s relationship with Steele, he does not take issue with the decision to use his reporting. As to other confidential sources, he writes, “We concluded that the investigative activities undertaken by the Crossfire Hurricane team involving [such sources] received the necessary FBI approvals and complied with applicable Department and FBI policies.”
All of this is not to say that Horowitz gives the investigation a clean bill of health. He doesn’t. In certain areas, the report is highly critical. Horowitz describes misunderstandings with Steele about the nature of his relationship with the bureau, and how these and other problems led to a series of misstatements and omissions in communications between line agents and the Justice Department and ultimately with the FISA Court—both in the initial Carter Page FISA application and in the three renewal applications that took place over the successive months. I need to spend more time with this material to get my hands around what Horowitz has found here, much of which looks on an initial scan like sloppy work, rather than intentional misconduct.
That said, FISA is a precious trust and an inspector general report identifying even carelessness that leads to serial misstatements in FISA applications is a serious matter that needs to addressed. And some of the conduct he describes may involve deliberate misconduct too.
So I am not belittling any of Horowitz’s findings on these matters when I say that none of them involves the sort of misconduct or errors that will reasonably bear the weight Trump and his defenders have put on the notion that something was rotten at the bureau. Not only were these errors not political, but they took place at the lower levels—individual agents and an attorney. What’s more, Horowitz does not even find that the conduct rendered the FISA applications defective—a point on which he does not weigh in.
If I were Carter Page, I would read this report with some grim satisfaction; Page has a right to be pissed off. The inspector general has, after all, concluded that serious errors took place in seeking Page’s surveillance orders. But that’s about as far as it goes. The errors were not political. They were not part of some coup. And in any event, the Page FISA applications did not end up being all that important. None of the indictments that Mueller handed down were driven by evidence collected in surveillance of Page, who was never charged with anything. The issues Horowitz raises are important because the integrity of the FISA process is so important. But no aspect of the integrity of the Russia investigation turns on the questions Horowitz raises about the Page FISA applications.
Horowitz also makes a series of policy recommendations. There are areas where he was clearly surprised at how permissive the rules are, particularly in highly sensitive investigations. Some of these concerns are valid and worth discussing for future such probes: What level of Justice Department notification does the FBI need for certain investigative steps in highly sensitive cases, for example?
But again, these are questions for another day. The president’s complaints about the FBI were not that there should have been more oversight by senior Justice Department officials of specific investigative steps. What has kept Fox News yowling for months on end is not whether the standards of predication are too low in political cases. The claim was that the institution was corrupt—treasonously corrupt in a fashion designed to favor Hillary Clinton and, when she lost, pay out on the “insurance policy” by taking down Donald Trump. The Horowitz report provides a decisive rebuttal to such nonsense, even as it raises serious questions about the way individual FBI agents and attorneys conducted aspects of the investigation.
At least it would provide a decisive rebuttal if people were willing to hear one.
But don’t expect the conspiracy theories to die on the vine. Barr is still beating the drum. In response to the release of the report, Attorney General William Barr declared: “The Inspector General’s report now makes clear that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken. It is also clear that, from its inception, the evidence produced by the investigation was consistently exculpatory. Nevertheless, the investigation and surveillance was pushed forward for the duration of the campaign and deep into President Trump’s administration.”
And John Durham, the Connecticut U.S. attorney tasked with investigating the origins of the investigation, stated: “I have the utmost respect for the mission of the Office of Inspector General and the comprehensive work that went into the report prepared by Mr. Horowitz and his staff. However, our investigation is not limited to developing information from within component parts of the Justice Department. Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S. Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.”
And so there will be another round—another round of insinuations without evidence, another round of moved goalposts, another round of witch hunting by shouting “WITCH HUNT!”