The Schiff Memo and the Scandal of FISAGATE

The Schiff memo is out, and as could have been expected it's a complete joke from a strictly legal standpoint.

It's first point is that the Steele "dossier" wasn't the catalyst for the FBI counterintelligence (CI) investigation of--in effect--the Trump campaign. Well, duh! I think all sentient humans already knew that the real catalyst was Trump becoming the odds on favorite to win the Republican nomination. Can we agree to agree on that?

But as regards this business of the FISA warrant against Carter Page there's more to be said, and it's worth our while to take a closer look at Schiff's attempt to defend the way the FISA process worked in this case.

Schiff begins his discussion of the actual application for a FISA warrant on Page with a fib: "DOJ's warrant request was based on compelling evidence and probable cause to believe Page was knowingly assisting clandestine Russian intelligence activities in the US." Close, but no cigar.

The "FISA recipe" used by the FBI for internal training is rather more specific about the required showing for a warrant; its requirement goes beyond that of simply "assisting." The "recipe" states (p. 3) that "the efforts undertaken by the target [Page] on behalf of the foreign power [Russia] constitute [for our CI purposes] ... clandestine intelligence activities." That's very specific probable cause. Pages own efforts must constitute clandestine intelligence activities. Not just assist, but constitute.

Well, then, accepting for the sake of argument that Schiff may have misspoken, what does he have to tell us on that score?


Page resided in Russia from 2004 to 2007 and pursued business deals with Gazprom. Clandestine intelligence activity? Please.

A Russian intelligence officer targeted Page for recruitment. Does that mean that Page was engaged in clandestine intelligence activities? No, it doesn't. The nefarious activity has to do with the Russian intelligence officer--not Page (more on that later). And the fact that Page was willing to provide Russians with open source research on the energy sector (as we know from the complaint filed against his Russian contacts in New York in 2013) doesn't constitute clandestine intelligence activity, either.

The Russians who targeted Page for recruitment were indicted in New York (actually, a complaint was filed against them). Clandestine intelligence activity? Are you kidding?

The FBI interviewed Page "multiple times" about his Russian contacts. I would hope so--that's their job, just like notifying Florida authorities of credible concerns about Nikolas Cruz was their job. At least these NY agents were on the ball, but ... contacts with Russians? Please show me the clandestine intelligence activity!

This is all Schiff has to tell us about Page and the Russians before his association with the Trump campaign. No single one of these factors constitutes clandestine intelligence activity, nor does any combination of these factors constitute clandestine intelligence activity. Result? No FISA for you. Not on Carter Page. At least that's how it's supposed to work. If the FISA law is followed.

Now there are some more matters of interest here, but we can best work our way into them by returning to Schiff's initial assertions.

At the beginning of Schiff's "narrative" about Page and the Russians, he claims that "the FBI had an independent basis for investigating Page's motives and actions during the campaign, transition, and inauguration." What Schiff is saying is that the activities we've just enumerated--all of which happened anywhere from three to twelve years before Page became involved in the Trump campaign--form an "independent basis for investigating" Page. Let's accept Schiff's claim as a true statement--but with important reservations. Because Schiff is fibbing again, hiding the ball a bit. How so?

In previous comments I've described in some detail the structure of FBI CI investigations, as laid out in the relevant AG Guidelines. That structure is very important if we want to understand what's going on here, and why this whole thing is bogus. Schiff speaks of "investigating." But the Guidlines lay out (as usual, for our purposes) two distinct types of investigation: the "Preliminary Investigation (PI)" and the "Full Investigation (FI)." Let's take the last one first. The FI is initiated when there's probable cause to believe a US person is a knowing agent of a foreign power, that is, he's acting at the direction of the foreign power against the interest of the US. In other words, he's a spy, or, more correctly, there's probable cause to believe that he's a spy. If you can make that showing, then you get a FI and with that you can apply for a FISA warrant--if you can show the clandestine intelligence activity. But, no FI, no FISA.

Then what's a PI for? The PI is for situations that are similar to exactly what Schiff describes concerning Page: the FBI has become aware that someone (Page) is in contact with a foreign power (Russians) and wants to find out more about Page--about his motives, about his actions. There is no probable cause at this point to believe that Page is an agent of the Russian government. Why would the FBI be interested in Page in that case? Because the FBI wants to recruit him to be an "asset" that they can use against the Russians he's in contact with--usually to try to recruit the Russians but sometimes to build a criminal case against them. Naturally they'll want to learn a bit more about this guy who's in touch with Russians to determine whether he's trustworthy, but since there's no probable cause to believe he's an agent of the Russian government there's no FI and there can therefore be no FISA.

So guess what happened back in 2013? The complaint that the FBI filed against the Russians (NB, not against Page) makes it as plain as anyone could wish that Page was cooperating with the FBI against the Russians, just as he's been telling anyone who will listen to him. So, yes, the FBI had an independent basis for investigating Page back in 2013; they investigated his motives and actions, decided he was trustworthy, and Page helped the FBI build a case against the Russians. In fact, from 2013 to 2016 Page was officially "on the books" of the FBI as a cooperating source against the Russians. And that's why the distinction between investigating with a PI versus investigating with a FI is important. Schiff wants you to think that investigating is just investigating, but it ain't so. As their informant or cooperating source, the FBI was convinced that Page was on their side against the Russians. Do you think they told all that to the FISC when they applied for a FISA against Page in 2016? Neither do I.

The bottom line so far? Page's past connections with Russians could have had absolutely no relevance for obtaining a FISA against him--not if the full story had been presented to the FISC. That means that Andrew McCabe was telling the HPSCI the truth when he told them: no "dossier" no FISA. So what of that?

We'll ignore the "additional information" that Schiff claims was provided for the FISA renewals--after all, without the original FISA to begin with there couldn't have been any renewals. What can Schiff tell us about that original FISA application?

Well, it turns out that after Page joined the Trump campaign he engaged in "suspicious activities" What kind of suspicious activities?

For starters, he traveled to Moscow, in July 2016. OMG! An American traveled to Moscow! Please judge, can we turn that man's life inside out? How much more like clandestine intelligence activity does it get, than taking a flight to Moscow?

It gets worse, though. While in Russia he gave a university commencement address! Now that, for sure, that's gotta be clandestine intelligence activity, right? If you'll believe that, there's this bridge in Brooklyn ...

Beyond this nonsense, all Schiff can present us is that Steele's "information"--entirely uncorroborated as it was--was "consistent with" FBI accounts of how the Russians go about trying to recruit someone. But remember, when you go to the FISC for a FISA warrant you're required to present probable cause to believe that "a US person is himself knowingly engaged in clandestine intelligence activity at the direction of a foreign power," not some generalized narrative based on "uncorroborated information that the Russians are engaged in activity that's consistent with their typical methods of trying to recruit someone." If any of this stuff were true, the logical action for the FBI to have taken would have been to open another PI and tried to use Page again. As if the Russians wouldn't have been aware of what he'd done against them in 2013. But none of this provides a shadow of the probable cause that's required for a FI or a FISA warrant.

And yet, within the month, by "late July, 2016," the same month in which Page traveled to Moscow, the FBI had opened an investigation on Page. From being a source for three years, up to March, 2016, Page was now the subject of an investigation. This was clearly a top priority. And, as Schiff reminds us, over the course of a year or so that warrant was renewed multiple times--certified by an Acting AG (Dana Boente) and by Rod Rosenstein himself, the newly minted Deputy AG, and approved by four separate Federal judges, no less.

Aren't these guys, like, highly educated, paragons of legal integrity and, like, all that? If what I've been saying is true, then how could this have happened? Surely when these highly educated lawyers and judges were placed in positions that required them to pass on the sufficiency of FISA warrants, wouldn't somebody have briefed them on the required standards for such warrants? Wouldn't somebody have maybe whispered in their ears, Y'know, there does need to be some pretty specific probable cause before you sign on that line there? Surely somebody in the FBI or DoJ with a bit of experience could have taken the time to brief them on these things? After all, these matters may seem a bit arcane as compared to everyday life, but it's not exactly rocket science. I think about ten minutes would suffice.

Let me assure you: everything I've said here is the God's honest truth. And that's the real scandal to me, because this stuff is really very serious. Back when I was first initiated into the world of FISA, landline telephones were the thing. Really--I can remember those days, including the day in about 1994 when the FBI entrusted me with my very own telephone on my desk. Not a shared phone. But nowadays we live connected in ways that most of us never give a thought to. Well, that's all accessible to our benevolent federal government. And if there's anything we learn from this sordid episode, it should be that we the people really do need to take back some control over FISA.

Now, in closing, a few words about the Nunes rebuttal. From my perspective it's basically fine. I mean, what we've just been through is a bit excruciating, but ultimately like shooting fish in barrel. Unfortunately, from my perhaps narrow perspective, Nunes played it a little too safe. I can only assume that he wanted to avoid sounding "soft" on Russians. In this specific area of concern to me what he did was to use what I'd describe as debating points. What I mean is this. To Schiff's claim that the FISA warrant was based on "compelling evidence" and "probable cause" that predated Page's involvement in the Trump campaign, Nunes responds with a rhetorical question: if that stuff was so compelling why is it that the "dossier" was needed at all, much less that it ended up being the bulk of what was presented to the FISC? It's a legitimate argument as far as it goes, but my very strong view is that the question of the required legal standards being ignored is an issue that needs to be hammered at--over and over, at every opportunity. This is about fundamental Fourth Amendment rights--it's far too important to slide past that with a rhetorical jibe. Now, in fairness, I'm aware that Nunes has addressed this forthrightly in interviews, but it simply has to be placed in the documentation whenever the question comes up.

In addition, Nunes points out that the Russian intelligence officers, back in 2013, referred to Page as "an idiot." OK, that's a legitimate point, too--shouldn't the FISC have been made aware of that? Yet, inexplicably, Nunes makes no reference to the fact that Page was an official FBI source for at least three years, all in the relevant time period. Would knowledge of that fact have led the FISC judges to sit up and take notice? I'd like to think so but, frankly, and in my carefully considered opinion, it remains nothing short of scandalous that they approved the warrant even on the slanted and dishonest presentation that they were given.

ADDENDUM: I do want to make clear that, in singling out the role of the certifying DoJ officials and the FISA Court (FISC) in this scandal, I in no way wish to excuse the obvious fraud that was perpetrated by the what appears to have involved virtually the entirety of upper management at the FBI as well as their counterparts at DoJ. However, whatever one may think of the constitutionality of the FISA regimen, this system of certification by the top level at DoJ plus submission to the new FISC was designed to provide independent review to safeguard Fourth Amendment rights. That responsibility was clearly not met.