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!