Criminal Justice & the Rule of Law Intelligence Surveillance & Privacy

Thoughts on the Horowitz Report, Part I: An Introduction

Benjamin Wittes
Thursday, December 26, 2019, 2:42 PM

The Horowitz report poses a deep challenge to those of us who have broadly defended expansive surveillance authorities over the past several years. That challenge is not the one President Trump and his supporters have lodged against the FBI and its integrity.

Department of Justice Inspector General Michael Horowitz (Source: Flickr/OversightandReform)

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Editor’s Note: This post is part of a Lawfare series covering Inspector General Michael Horowitz’s report on the FBI’s “Crossfire Hurricane” investigation, which explored possible connections between the Trump campaign and Russian efforts to interfere in the 2016 presidential election. Part II is available here and Part III is available here.

One of the striking features of the public reaction to Inspector General Michael Horowitz’s report on the FBI’s Crossfire Hurricane investigation is just how many people of just how divergent points of view are claiming vindication for whatever positions they held prior to the document’s release.

President Trump and many of his defenders took the report as validating their claims that the FBI leadership had been engaged in a politically motivated, treasonous coup attempt against the president—though the report concludes quite explicitly that nothing of the kind occurred. Many skeptics of the president’s conspiracy theories, by contrast, have focused instead on Horowitz’s rejection of the president’s “Witch Hunt” narrative—thus downplaying the report’s deeply upsetting findings with respect to the Carter Page Foreign International Surveillance Act (FISA) applications.

The two situations are, of course, not parallel. One side is actively misrepresenting what Horowitz found, while the other is merely emphasizing some of the report’s findings at the expense of others. But the result is that, once again, our two broad political movements are reading the same document and seeing in it entirely different texts.

The real Horowitz report has inconvenient sections for just about everyone—including for me. I am not thrilled, to cite one example, that then-House Intelligence Committee Chairman Devin Nunes correctly noticed in real-time what turned out to be genuine deficiencies in the FISA process, deficiencies of which I was in retrospect too dismissive. And, unlike Nunes, who is busy pretending in the report’s wake that those deficiencies somehow vindicate his larger claims of politicization and malfeasance at the FBI, I think it’s worth taking the whole document seriously.

I have now had time to read the report carefully and formulate my thoughts on it. This took some time, because it is actually a deeply complicated document. Many of my thoughts dovetail closely with themes David Kris has already laid out in his excellent piece on the report, so the series of posts that follows will cover some ground he has already walked.

The broad point I want to emphasize here is that the Horowitz report does, in fact, pose a deep challenge to those of us who have broadly defended expansive surveillance authorities over the past several years and regarded the FISA process as embedding adequate safeguards against abuse of those authorities. That challenge, however, is emphatically not the one that Trump and his supporters have lodged against the FBI and its integrity over the past three years. There is no criticism in this report of senior leadership at the bureau for acting politically or out of animus for Trump or sympathy for his opponent. Indeed, the identified errors are confined largely to line agents and a line lawyer. What’s more, Horowitz is unable to find evidence even that any of the errors or misconduct he identifies at this level were politically driven, though he does not rule out the possibility in certain cases. The question the Horowitz report raises is thus not—no matter what Attorney General William Barr may have said in his statement characterizing the document—whether the FBI was weaponized against a political campaign.

Rather, the challenge the inspector general’s report presents is a less exotic and much older one—the same challenge that mainstream civil libertarians have been putting forth since the passage of the Foreign Intelligence Surveillance Act in 1978. Indeed, even if the report offers no support for the idea of a coup, it still poses the question of whether the bureau’s day-to-day rigor and candor with the Foreign Intelligence Surveillance Court is adequate for the trust we have placed in it. And, in this sense, the challenge it poses is both deep and alarming. The errors Horowitz documents are numerous. Some of them, at least, are quite substantial. One may even have been intentional. Particularly cumulatively, they grossly undermine the integrity of several surveillance applications submitted to the court. Nobody who has defended the FISA process should be able to read this report without a great deal of anxiety about whether those of us who did so were being naively overconfident about its average performance.

It will not do to note that Trump’s allegations are wrong and to conclude from that fact that the problems Horowitz noted are minor—any more than it will do to note that Horowitz discovered significant problems and to conclude from that fact that Trump’s allegations must have been correct. Two points must be allowed to coexist: Trump’s allegations were slanders—slanders against individuals, slanders against the institution, and slanders against the men and women who work for the institution—and the FBI may have major problems in the FISA process.

I say “may” because the Horowitz report actually does not find that the problems are general ones. It finds very serious problems in the FISA process in the specific context of the investigation of Carter Page. Whether those problems are confined to that episode or whether they are more generalized—or whether they are episodic—is a critical question, perhaps the critical question, in determining just how serious the institution’s challenge is.

In a sense, then, the Horowitz report is really three quasi-distinct reports—each of which we ought to take seriously. One debunks the conspiracy theories. Another forensically examines the FISA process in the Page matter and finds serious deficiencies. And a third, lesser-noticed report makes a series of policy recommendations regarding the handling of sensitive political matters in the future, particularly with respect to Justice Department-FBI communications.

My goal in this series of posts is to examine each of these features of the Horowitz report—along with a series of questions they raise:

  • What are the areas of vindication for the FBI, and to what extent do any of the conspiracy theories survive the report?

  • Just how bad is the FISA mess the report documents, and to what extent is it plausible to use the dysfunction and misconduct Horowitz finds to—as Trump and Nunes seem to be doing—rehabilitate the conspiracy theories the report debunks?

  • Were analysts, including me and others writing on Lawfare, too quick to dismiss the so-called Nunes memo and too quick to take comfort in the response to it from Adam Schiff, then the ranking member of the House Intelligence Committee? What did Nunes get right?

  • Zooming out, how should we understand this report in the context of the three other major reports Horowitz has issued over the past two years on the FBI’s performance—and that of its senior leadership—during the 2016 election cycle? In other words, does the Crossfire Hurricane report look different if viewed in the context of Horowitz’s other criticisms of James Comey and Andrew McCabe?

  • And, finally, what should happen now? What remedies are appropriate for the problems found? And what further investigation is needed to assess that question? Are Horowitz’s suggestions reasonable? Is FBI Director Christopher Wray’s response appropriate? And are there other steps we should be contemplating?

Rather than writing this in a single long post, I am breaking up this work into a sequence of shorter essays, the second of which will appear on Friday, Dec. 27, and cover the areas in which Horowitz—sometimes despite himself—concludes that the FBI behaved appropriately.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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