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Saturday, September 15, 2018

UPDATED: The Central Scandal of the Russia Hoax--and Our Constitutional Crisis

Scott Johnson at Powerline, The Biggest Scandal, offers some comments regarding two recent articles by Andy McCarthy. I certainly am in total agreement with Johnson's assessment that this whole Russia Hoax constitutes "the biggest scandal in American political history." Part of the scandal beyond the actions of the Obama Administration and officials at the DoJ/FBI/CIA/State--and including not only political appointees but also career professionals--is the complicity of the press and its continued silence. That complicity extends beyond biased reporting to complicity in the FISA process itself through the FBI's leak process and then reuse of the leaked material, laundered through the press, as "probable cause" for the FISA against Carter Page.

What I'd like to do here is to expand a bit on a point that McCarthy makes in the first article, "Reading the FISA Redactions." The entire article is well worth a careful study for anyone who wants to understand what's going on with all the talk about the FISA application and, especially, the renewal applications. I have to say, I take my hat off to McCarthy--he goes through the applications step by step, demonstrating that, for all the redacting that was done, the bottom line is readily apparent: The FBI had precious little in the way of "probable cause" to offer the FISA Court (FISC), and yet their warrant was approved--and thrice renewed! This never fails to amaze me every time the subject comes up.

McCarthy gets to the heart of the matter--the first of many important points he makes--right up front:

Page has never been charged with any crime, much less with espionage. That is a salient fact because to get a FISA warrant on an American citizen, the FBI is required to show that the citizen’s activities on behalf of a foreign power violate federal criminal law. The FBI and Justice Department went to the FISA court four times over nine months, from October 2016 through June 2017, claiming to have grounds that Page was involved in heinous clandestine activity. Why isn’t he in handcuffs?

I believe it is because they never had a case.
All they appear to have had were the 2013 attempt by Russian spies to recruit Page as an asset, and the Steele dossier.

Now here's what I want to make clear. The original FISA order, when the target is a US Person (USPER) such as Carter Page, lasts for 90 days. A FISA order can be renewed, but the renewal is NOT granted on an "if at first you don't succeed, try try again" basis. To get an extension on a FISA--and let me say here that I completely agree with McCarthy that the initial FISA was pure BS--the FBI has to either:

1) make a reasonable showing that it is making progress in its investigation as a result of its use of FISA, i.e., it is moving forward with additional evidence gained through FISA that tends to confirm the presentation of the case that was made in the initial application, or

2) in the absence of such progress, the FBI must make a reasonable showing that the extension is likely to produce progress.


No extension should be granted unless one or the other condition is met; if not, the FISA should be shut down. Yet in this case three extensions were granted--despite the fact, as McCarthy convincingly shows, that there is absolutely no reason to suppose that either condition was ever met. We'll know for sure if/when President Trump finally declassifies these documents, but any fair reader of the redacted versions will be forced to McCarthy's conclusion: The FBI never had a case.

Prescinding from the corruption involved in the initial application, the fact that there were three extensions requested and granted is astounding--it should truly shock any normally aware citizen. That the top levels of both the FBI and DoJ should approve the extension requests, having nothing to show for their previous supposed investigative efforts, and that four separate Federal judges should approve such threadbare--not to say facially deficient and therefore bad faith--applications in a case that is so consequential for our Constitutional order strains credulity. And yet that, barring truly shocking new revelations that contradict all that we've learned thus far, is exactly what happened.

In light of this I would go beyond Johnson's characterization of this as "scandal"--the only suitable word, not to be lightly used, is "crisis." And it's a continuing crisis. The reaction of both Democrats as well as NeverTrump Republicans in the House and Senate has been bad enough, but the lackadaisical, dilatory, response of DoJ in the face of such scandal has simply been shameful.

Consider what we have learned to this point. All the evidence points to a conspiracy to prevent the election of Donald J. Trump as President of the United States. Failing this, the continuing conspiracy sought to terminate his presidency, presumably through the impeachment process, or failing that, to hamstring it through innuendo and outright slander. It's a scandal, and it's a scandal built on an outright hoax--the Russia Hoax. This conspiracy that I've referred to was a conspiracy that involved the core institutions of the Executive Branch of government: the Department of Justice--including the FBI--the "Intelligence Community" generally, including the CIA and DNI, and the Department of State. But if all this weren't appalling enough, this conspiracy against the integrity of our fundamental institutions and our courts--even our electoral processes--extended to enlisting the cooperation of the intelligence agencies of a foreign power--Great Britain (GCHQ and MI6), not Russia!--against our own government.

The question is: Where will this lead, where will it all end?

ADDENDUM: As before, for anyone who wants to read a good commentary on the FISA process, I recommend the FBI's own FISA Recipe. It does require very close reading to make the necessary distinctions between the various targets of FISA: USPERs, foreign powers, agents of foreign powers, etc. But if you're patient it explains it all for you, especially probable cause.

UPDATE: I stated (above) that "... McCarthy convincingly shows, that there is absolutely no reason to suppose that either condition was ever met. We'll know for sure if/when President Trump finally declassifies these documents, ..." Late this afternoon, 9/17/18, President Trump issued an order for the release of various documents related to the Russia Hoax, including the Carter Page FISA applications in relevant part--excluded would be references to possibly sensitive methodologies and related matters. I remain confident that McCarthy will be proven right--that very little additional information of real importance will be revealed.

What may prove to be of far more interest, and may reveal explosive new information about what was going on at the FBI and DoJ, is the rest of the documentation that falls under the declassification order. Of immediate interest is the release of UNREDACTED text messages. The unredacted text message between Strzok and Page alone could prove extremely interesting--just this morning I was reading new speculation regarding the content of redactions in there texts. That will all be resolved. Even more importantly, perhaps, is the fact that the unredacted texts sent by James Comey and Andrew McCabe will also be released. Even people who know better take a very casual attitude toward texting--as if texts somehow just disappear. Further, I would be willing to bet a large amount of money on this: that none of these people conducted their texting with the thought that they might someday be fired. I think they felt safe in their jobs.

The final item of special interest in the declassification order is the inclusion of all FBI FD-302s regarding Bruce Ohr. An FD-302 is simply a report of investigation--typically, but not necessarily, a report of an interview. To review: Why was the FBI interviewing Bruce Ohr--a very high level DoJ official? In Fall, 2016, the FBI had been forced by its own internal regulations to terminate Christopher Steele as an official source because Steele had been found to be leaking to the press the same or similar "information" that he was providing to the FBI--he was therefore deemed to be unreliable. But the FBI did a little runaround of its own regulations. They had Bruce Ohr continue contacting and "debriefing" Steele from late 2016 well into 2017. Those FD-302s record the FBI's debriefing of Ohr regarding his continuing contacts with Steele, on behalf of the FBI. To say that this arrangement was irregular would be a gross understatement, especially given that Ohr claims he never informed anyone else at DoJ about this arrangement. Well, maybe he informed Andrew Weissmann.

This may be speculative, but there is a possibility that those FD-302s may contain references to Steele's relations with British intelligence agencies--MI6 and GCHQ in particular. If so, they could be explosive in providing further light on collusion of American intelligence with the intelligence services of a foreign power against the US government. Hold on!




33 comments:

  1. As strange as this may sound, but one rational explanation for the continuing obfuscation and suppression of evidence by DOJ/FBI is that they are attempting to conceal an even more heinous criminal act than subversion of a presidential election. Specifically, it could be that this type of conduct has been going on for a very long time and this case is just the tip of the iceberg.

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  2. I can agree that subversion of the election is only part of the overall project. The overall project would be the formation of an irresistible "progressive" state, run through DoJ, State, and the Intel Community--so unified in purpose that even a change in parties would be powerless to overcome this new direction of the country.

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  3. Mark,
    Does Sessions recusal stop him from looking into the Carter FiSA warrants? I am believing that Joe diGenova knows what he is talking about and the hammer is on its way down and my guess is Sessions is Thor.

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  4. That's a tough one, Mike. The easy answer is, yes, his recusal does prevent him from getting involved with the Page FISA since his recusal had to do with all Russia/campaign matters. And my suspicion is that he still wants someone else to do the heavy lifting re all that. However, as a matter of legal ethics my belief is that, if the forthcoming IG report on the Carter Page FISA is forthright enough in describing a fraud on the FISC, then Sessions could unrecuse himself based on the fact that the FISA was key to getting the Russia Hoax Mueller Team started. In other words, since his recusal would be seen to have been based on a deception against him, he could walk it back because the factual basis would no longer be there. That's my belief, FWIW. I'd very much like to see that, for his sake, but I don't expect it.

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  5. It will never end. The bureaucracy has always, through foot-dragging and other low-grade resistance, hampered presidential directives; but now, one man in a single agency has taken executive review authority - just taken it, like the Marshall court took the power of judicial review. Every future president will report directly to an unelected tribunal. If you believe conspiracy theories, an empowered FBI is simply a streamlined, consolidated master of chief executives. Before Mueller, those who tell the president what to do were part of a loose band of extra-constitutional overlords. Now, they have a more efficient management structure.

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  6. Christopher, this, I suspect, has been the goal.

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  7. A very focused article that poses the Ultimate Question: Will we return to Representative Government? Even if Obama himself was relatively or completely innocent (which I don't believe, but he is entitled to innocence for now): WILL WE ALLOW ANY ARM(S) OF THE GOVERNMENT TO INFLUENCE OUR SELECTION OF PRESIDENT? Here's the rub: For the lefties who say, "Yes!" to this, remember, the same shadow government will likely exert significant control over a liberal or "progressive" president, once they favor her election? And maybe the reasons the Carter and Obama failed was that the DeepState restrained them?
    IF any of this is true the current (and subsequent) President and Congress have the opportunity to be the most consequential his our history: If, at great risk, the expose the money changers in the temple(s) and run them out of town and re-establish constitutional law and government by the people, he or they will rightly take their seat(s) on Mt. Rushmore.

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  8. For some reason, I think that a lot of the fast footwork we are seeing executed by the deep state goes back to the 250 FBI files found in Greg Craig's possession lo those many years ago. Under President Clinton, of course. My gut is telling me that people who could have stood up over the last quarter century were badly, but secretly compromised.
    Charles Colson went to prison for having a single file. As for the Clinton's, then and ever since, just nothing but crickets....

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  9. Anon, I think this coup attempt, this attempt to seize power permanently, does have the deep roots you suggest, and many of those roots can be discovered in the takeover and makeover of our legal and investigative establishments.

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  10. Peter Addams, I do think we're in uncharted waters--for America. You have to look deeply into history for parallels. Perhaps the French and Russian revolutions. You can see the ideological ferment that ultimately has given birth to our current crisis beginning in the Progressive Era (1890s to 1930s), culminating in the FDR makeover. I can't claim exact parallels, but these are the sorts of historical parallels that we should look to for guidance.

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  11. Hanuman_prodigious_leaperSeptember 16, 2018 at 7:20 AM

    Why are we excluding the judges from the cabal? FBI surely has files on them
    Name them please. Rubber stamps are expensive to make and maintain.
    Maybe being paranoid here ... FBI declining on Kavanaugh ... Future leverage or they are in disarray.

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  12. Obama used the NSA's capabilities to spy on our elected representatives in Congress, and yet they renewed FISA in an almighty hurry in 2017 when all and sundry knew. Why?

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  13. Hanuman, re the four FISC judges, I have no intent to exclude them from any cabal, but more evidence is needed for membership. That they failed miserably to do their jobs is obvious. All four were GOP appointees and all have been named:

    https://lawandcrime.com/politics/judges-who-approved-carter-page-fisa-warrants-were-all-nominated-by-gop-presidents/

    "George W. Bush nominated Rosemary Collyer to D.C. federal court, and Michael Mosman to the District of Oregon. Ann Conway was a George H.W. Bush pick to the Middle District of Florida. Ronald Reagan tapped Raymond J. Dearie to take a seat in the Eastern District of New York. FISA court judges are appointed by the Chief Justice of the U.S. Supreme Court, and the conservative Roberts named all of them to those position. Roberts was nominated to the Supreme Court by President George W. Bush."

    Re the FBI declining on Kavanaugh, I suspect that they believe the anonymous allegations didn't rise to the level of a criminal offense. Ordinarily the FBI would need to get a declination from DoJ (recall the irregularity of Comey's declination re Hillary). They decline to investigate when there is no violation on its face.

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  14. The "court" never had a hearing. AG Lynch pushed it through and Obama signed off.

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  15. The complacency and in many cases outright complicity of the press is the real enabler of this disgrace. Without major media attention with an unbiased eye and eighth-grade level write ups, the majority of the voting public will never understand what is at stake here. This conspiracy originated 100 years ago with the founding of the "Progressive" movement and a deliberate effort to dumb down the American voter through the educational institutions. We see now the poisoned fruits of that effort in a zombie press and university culture that actively promotes ignorance of and disdain for the principles of liberty and independence. I fear for my children's future.

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  16. It seems our country has a three tiered justice system: one for the politically connected elites, one for political enemies of the bureaucracy, and one for regular citizens. If this keeps up, it will not hold.

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  17. DHunter, I think we're dealing with two separate--but related--issues. Obama's abuse of NSA to spy on Congress IS something that Congress needs to address. Aggressively. OTOH, I believe they renewed FISA simply because it's the existing framework by which the country is protected against terrorist attacks and hostile foreign powers.

    I attempted to address the conceptual flaws in the whole FISA regime back in July: What The Carter Page Case Tells Us About The Flaws In FISA. If you check that out, pay particular attention to the comments I quote from Robert Bork's critique of the original FISA law.

    Nevertheless, prescient as Bork was, even he probably didn't--at least not at that early date--foresee the pass we've come to. The sad fact is that no laws or regulations can protect our freedoms if leftist revolutionaries have taken control of our societal (esp. educational) institutions and the American people insist on electing leftist revolutionaries who respect neither our Constitution, laws, nor our way of life. A constitution isn't a self operating system--as the Founding Fathers recognized: a republic, if you can keep it. To perpetuate our Constitutional form of government we must in the last analysis have virtuous leaders who are committed to that end.

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  18. Unknown, I know that that theory has some currency on various sites, but it's incorrect. Obama did not "sign off" on the FISA order, although I don't doubt he was behind the whole scheme. The FISC signed off on the order and didn't need a hearing to do so. That's not the fundamental fraud on the country that was perpetrated. The fundamental fraud--from the standpoint of the FISC--is that they neglected their duty to scrutinize the applications. I don't recall off the top of my head whether McCarthy says so, but he could have: any judge should have been able to tell that the renewals made no advance over the original order. By the same token, even assuming the good faith (which I don't) of the officials at DoJ who also sent the applications along to the FISC, those same officials should also have realized how flawed the applications were and refused to approve them.

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  19. Unknown, the theory that you repeat is based on a provision of FISA that allows for emergency use of FISA powers without an order from the FISC: 50 U.S. Code § 1802 - Electronic surveillance authorization without court order. We know that that didn't happen because we have the applications and orders to prove how things were done.

    BTW, that provision was used extensively--which is to say, routinely--by Bush. That's part of what led to the 2015 revisions.

    Please refer to my response, above, to DHunter. I'm not defending anything that has happened and I'm not even defending FISA as it was envisioned. There are larger issues at play here which constitute the real or central crisis.

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  20. Brainwright, I couldn't agree more.

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  21. Josh, I agree, and that's a manifestation of the real crisis.

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  22. The proper way to address this constitutional crisis is to impeach Asst AG Rosenstein and every FISA judge who approved Carter Page warrants.

    That invokes UNITED STATES VS NIXON (1974), which was a 9-0 SCOTUS decision during Pres. Nixon's impeachment proceedings that said there are no "executive" or "National security" classification privileges versus a House impeachment subpoena.

    Short form -- The Deep State has to cough up all FISA surveillance documents including sources and methods or go to jail for obstruction of justice.

    The problem with this thought is the the FBI and DoJ are in open rebellion against both the Constitution and the American people.

    They won't cough up the subpoenaed documents unless US Marshal's arrive to take said documents at gunpoint from the DoJ-National Security Division and FBI counter-intelligence SCIF's.

    Which is when we will find many of the records have been erased or altered at times the access logs for the SCIF's say no one was there and videos of those time periods are missing.

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  23. Thanks, Mil-Tech. That's interesting. Never heard of that aspect of the case before.

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  24. The FISA warrants were a means for the Intelligence Community's Trump-haters to search for any indications that money had moved toward Russia from Donald Trump, his businesses and his associates.

    Those Trump-haters intended to use such indications to prove that Trump was being blackmailed by Russian Intelligence.

    Those Trump-haters did not have to prove such blackmail. All they had to do was to leak tidbits of information continually to the Trump-hating mass media.

    The public would be informed that our heroic Intelligence officials were investigating blackmail payments to Russian Intelligence.

    Sally Yates' leaks about Michael Flynn potentially being blackmailed by Russia because of the Logan Act is an example of how the subversion would work. Yates' leaks about such blackmail did not make any sense, but they were effective.

    The mass medias' hatred of Trump and of his associates is an important factor.

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  25. I speculate that the argument for the FISA warrant against Carter Page was supported by indications of bank transactions.

    Around the time that Donald Trump was inaugurated, there were press reports that German bank records were being subpoenaed.

    Carter Page's trips to Russia were only part of the alleged story. Another part was bank transactions indicating that money was moving to Russia from Trump, his businesses or his associates.

    These two parts reinforced each other.

    * The bank transactions supposedly indicated that Page had traveled to Russia in order to establish transactions.

    * Page's trips to Russia supposedly indicated that the bank transactions were related to Trump's election campaign.

    As I said, I am merely speculating here.

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  26. Mike, it's interesting that we've heard so little about the German bank. We do know that the Alpha Bank "transfers" turned out to be spam emails, but the media made the most of that while it lasted.

    Another aspect that you hear about occasionally but without any specifics that I'm aware of is the Estonian involvement. I seem also to recall the same about Polish involvement, but again no details. I'm referring hear to intel service involvement. If you can refresh my recollection ...

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  27. Following up my above speculation about bank transactions, perhaps the FBI's study of bank transactions justified the FISA renewals.

    Perhaps bank transactions of Carter Page himself were studied. After all, he conducted business in Russia. Furthermore, the dossier claimed that Russia would reward Page financially for helping to repeal the Magnitsky Act.

    The FBI might actually have thought that there was nothing to this aspect but used it as a justification to renew the FISA warrants.

    The investigation of bank transactions might be part of the FISA warrants where the FBI is successfully opposing declassification.

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  28. Doubtful about that, Mike. Bank transactions would be obtained via NSL, not FISA.

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  29. We are approaching the second anniversary on an ongoing coup against an elected president. This is not a Hollywood movie plot, but real life. Only a minor fraction of the Congressional branch is providing any semblance of checks and balances against this assault on our system of governance, but even there, Ryan and McConnell are bystanders at best. No intervention by Judiciary, even though they are culpable via FISC dereliction. And there are tens of thousands of honest and law abiding members within the DOJ and FBI who could and should be active to combat this covert tyranny. And yet, the coup lives on and grows stronger with each passing day. You only need to look at the success of the last second smear of the Kavannagh nomination in order to see that the good guys are losing. These are dark days and there are no adults in the room.

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  30. Mr. Wauck,

    Thank you for all of your research and articles. I have extensively followed this scandal. I have one question for you. Do you think that anyone will be charged for this abuse or will the perpetrators gets off scot-free?

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  31. I think the iron law of any bureaucracy--and our federal government is nothing if not that--is that no bueaucratic actor takes any action under the color of official authorization unless covered by someone higher up. That means that Obama is ultimately responsible for the big picture of this scandal. Who will actually be held responsible--in a court of law rather than merely in the court of history? If we're to believe what Joe DiGenova is telling us, then the FBI will take a heavy hit, right up to Comey. How high will it go at DoJ? That's hard for me to say. The forthcoming FISA report from the IG may tell us more on that count. It's hard to believe that Bruce Ohr will be able to skate. Sally Yates? I can only speculate. Glenn Simpson? There's no doubt but that he has skated very close to the edge of perjury in his testimony, and richly deserves anything that comes his way.

    One discourage aspect is how little we hear about the whol "unmasking" business. I suppose this all tends to confirm Robert Bork's fear that the ultimate effect of FISA would be to shield most bureaucratic wrongdoers and abusers of the system from accountability.

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  32. Don't forget, if all this is true, then Mueller has known this has been a hoax all along and continued the entire charade. Why would he do that...being such a man of integrity?

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  33. LOL! Believe me, Anon, I haven't forgotten that. BTW, Joe DiGenova, within the last week, stated that his sources have told him that Mueller is quite disillusioned with the Russia Hoax.

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