Lisa Page's Confirmatory Bombshells - Day One

Lisa Page's testimony before the House Judiciary Committee--released yesterday by Rep. Doug Collins (Ga.) is 365 pages in length and was conducted over two days. It includes questioning in alternating rounds by the GOP and Dem Representatives. In what follows I will confine myself to the questioning by the GOP Reps, since the Dem questioning is mostly in the nature of damage control.

While there is overall little new in what Page says, her testimony is strongly confirmatory of the positions I have maintained over the past years regarding the Russia Hoax. I particularly welcome her testimony because it directs the focus to what I believe is the fundamental legal issue, which is: the basis for initiating the Crossfire Hurricane (CH) investigation. In that sense I refer to Page's testimony as containing "confirmatory bombshells." She removes any remaining doubt regarding the corruption that characterized the entire process.

ROUND ONE: TREY GOWDY QUESTIONING

The hearing leads off with Trey Gowdy doing the questioning. My impression at this point--as throughout--was pretty much in line with what the GOP Representatives who did the questioning stated at the time: Page gives every appearance of being a very forthcoming witness. True, Page is at times defensive, but she presents as sincere and credible, answering all questions forthrightly unless instructed not to answer by FBI counsel. Even then she attempts to provide as full a response as possible. Her narrative of an FBI that was alarmed at the possibility that the Trump campaign had been infiltrated by "the Russians" comes across as perfectly sincere. And yet ...

The actual effect of her testimony is quite otherwise when it's subjected to a close analysis. In fact, the actual thrust of her testimony is to strongly confirm that the entire Crossfire Hurricane investigation (the FBI codename for the investigation into the Trump campaign) was fundamentally based on ex-MI6 spook Christopher Steele's totally unverified "dossier". Further, it soon becomes apparent that the FBI was applying a double standard to Hillary Clinton related investigations as opposed to Steele's outlandish allegations against Trump.

THE DOUBLE STANDARD

Without getting into parsing the Espionage Act (I8 USC 793), I will assert as fact that if I, in my past life, had done anything remotely like what Hillary Clinton did my ass would still be in jail with no end in sight. When you read Page's testimony you have to hold on to that solid bit of reality, because Page comes across as very credible in asserting that the FBI truly believed that they had no evidence against Hillary Clinton. The one, significant, break in that credibility is that Page, testifying in July, 2018, fails to mention a fact that she certainly knew--that James Baker, Comey's counsel, maintained to the bitter end--or just before it--that Hillary Clinton should be charged under the Espionage Act. Of course Page couldn't know what Baker would tell the House when he testified in October, 2018.

Now compare Page's account of the FBI's remarkably circumspect investigation into Hillary's homebrew email server with their hair's-on-fire reaction to the Chris Steele narrative of Trump as Putin's puppet. Consider--in all likelihood Hillary's "super sensitive" (Page's phrase) emails are circulating within the intelligence establishments in Moscow and Beijing. For anyone with even a little understanding of the realities of global intelligence the potential damage to national security in that should be mind boggling. And yet Page is quite calm in her testimony on that score. In contrast, when she comes to testify regarding Steele's unsupported allegations about the Trump campaigns collusion with "the Russians," she pitches it strong. Here, if we accept her narrative, Page conjures up a picture of an FBI in near hysteria--"someone associated with the [Trump] campaign ... is working with the Russians to obtain damaging information about Hillary Clinton." "[T]he Russians have coopted an individual [in the Trump campaign] ... maybe wittingly or unwittingly, that's incredibly grave, and we need to know that as soon as possible." In describing the state of mind at the FBI upon first hearing the Steele allegations, she says:

We were like, holy cow, this is a big deal, and we're all very stressed about this.

When comparing these investigations, however, a person with a skeptical turn of mind might ask: Exactly what is so "incredibly grave"? That the information that's so potentially damaging to Hillary is coming from the Russians, or that it actually could damage Hillary? After all, the Steele "dossier" "information"--so potentially damaging to Trump--was also coming from "the Russians"--via Chris Steele. Was that fact "incredibly grave"? Is Russian sourced information credible when it's anti-Trump but non-credible when it's anti-Hillary? Page describes the possibility of a compromised Trump presidency as a "horrific ... national security threat." But let's be serious. We know as nearly as possible for a certainty that Hillary's homebrew server with its trove of incredibly sensitive classified communications was actually compromised by foreign intelligence services. Whereas the unverified Steele dossier is ... pure narrative, to put it kindly. Notably, in that regard, Page's compelling testimony regarding the state of mind within the FBI is framed as a portrayal of a past state of mind. She makes no attempt, in the cold light of July, 2018, to maintain the actual truth of that narrative. So much for Steele's supposed reliability.

Look at it another way. Page repeatedly asserts that the focus of the CH investigation wasn't really on Trump himself, but rather on the "someone" in the campaign who was seeking damaging information on Hillary. Would it be "incredibly grave" for the Trump campaign to learn the Russians had damaging information on Hillary? Would that be more or less incredibly grave than the Clinton campaign actively seeking damaging information on Trump from Russian sources, through the opposition research firm Fusion GPS? In asking these questions I don't downplay the seriousness of anyone associated with US politicians acting colluding with foreign powers, but there is definitely a lack of proportion here, and it definitely suggests that the focus really was on Trump himself.

All of this--believe everything and anything re Trump, give Hillary the benefit of the most strained doubts--takes on detailed focus when Gowdy turns his questioning to Peter Strzok's famous "insurance policy" text.

THE OPENING OF CROSSFIRE HURRICANE

For example, in Page's account of events that led up to the "insurance policy" text we learn that Strzok thought that Steele's revelations about Carter Page's supposed "secret meetings" in Moscow--utterly unverified and based on Russian sourcing--was such hot "stuff" that he came in to FBIHQ on a Sunday to open the Crossfire Hurricane (CH) investigation. Further, Page--quite unselfconsciously as it seems--makes a point of noting that CH was opened, not as a Preliminary Investigation, but as a Full Investigation. Forgive my National Security law geekiness for a moment, but this is very significant. Page, whose background is in Organized Crime, fumbles the distinction a bit, even exclaiming at one point:

"Oh my God, I've been gone 2 months and I forget!"

But she gets it together and explains the distinction--for the benefit of questioners who probably fully understood it already. Gowdy sets it up by pointing out that there seems to be--clearly referencing the Steele dossier--"a paucity of evidence" for starting the CH investigation. Page accepts that judgment but quickly responds that such a "paucity of evidence" as was represented by the Steele dossier

was more than sufficient to open an FBI investigation because, of course, all you need, particularly to open a Preliminary Investigation -- although I think this was opened as a Full -- is an allegation, essentially.

If you understand what Page is saying, that's a real mouthful. She's right on both counts. To open a Preliminary Investigation is easy enough--an allegation will do--but, and this is key, CH was in fact opened as a Full Investigation. At this point Page realizes she may have misspoken in saying how easy it is to open an investigation--and this is part of what gives her testimony the feeling of credibility--so just as time for her first turn with Gowdy is running out she adds:

"but for a Full you need an articulable -- oh my God, I've been gone 2 months and I forget!"

What she was trying to say before time ran out is clearly stated in the FBI Guidelines for National Security investigations:

FBI Headquarters or a field office may initiate a full investigation if there are specific and articulable facts that give reason to believe ...

"Facts" means facts--not narrative or supposition. So Page is clearly stating that CH was opened as a Full Investigation. That being the case, the opening should have been based on the belief that the Steele dossier allegations were facts. But consider. Hillary's homebrew server? Fact. Classified emails on that server? Fact. Hillary's briefing on how to handle classified documents as Secretary of State? Fact. Christopher Steele's dossier? Specific and articulable facts? Not so much.

THE INSURANCE POLICY

In fact, as Gowdy gets into his line of questions on the "insurance policy," Page states as much--that the Steele allegations were not specific and articulable facts. The CH investigation was opened--as a Full--on July 31, 2016. The "insurance policy" text was sent shortly thereafter, on August 15. The short version of Page's explanation of the "insurance policy" text is that it followed on a meeting that was called to map the FBI's way forward with the CH investigation. Page, it seems, had proposed that a conservative approach be taken, in terms of what investigative techniques would be employed. Clearly, without saying so in her testimony, she had FISA in mind and was questioning whether it was wise to seek a FISA. After all, she reasoned, Trump would likely never be elected, so why "burn" sources, as might happen in seeking the FISA? Strzok, on the other hand saw FISA as an "insurance policy"--if they pushed hard the FBI could get a FISA on the Trump campaign before the election and have this powerful investigative technique already in place in the unlikely event that Trump won. To go for a FISA after a Trump victory would, of course, have been impossible. As we know, Strzok's counsel won out.

The longer version of Page's explanation is the really interesting part. In the transcript it's a bit disjointed because it's interrupted several times by the FBI attorney who, speaking on behalf of Special Counsel Mueller, limits what Page can say. However, Page obligingly describes the meeting as one in which the FBI was "trying to decide how aggressive or not aggressive [to be], ... do we burn sources or not burn sources or do we use X tools or Y tools." This is what she means.

The source in question who might be "burned," a "longstanding" source, was Christopher Steele. We know this because 1) we know Steele had been a source for the FBI since at least 2010, and we know from those parts of the Carter Page FISA that have been released--as well as from Andy McCabe's testimony--that Steele's dossier material was "crucial" (McCabe's word) to obtaining the FISA. In other words, Page's objection to seeking a FISA at that point was that to use Steele to support the FISA risked "burning" him, i.e., his identity as the source could become more widely known in the event of a Trump victory--as indeed happened. FISA, in this context, would have to be considered an "aggressive" technique. For these reasons Page was against seeking the FISA, based on what she regarded as the probability that Trump would lose, but the FBI decided to go for the FISA.

And then, having described the nature of the deliberations at the meeting, she adds these significant words:

But by this point, as you know, the 15th [of August, 2016], there -- it is at the -- literally the very beginning. So there is, in fact, a paucity of evidence because we are just starting down the path to figure out whether the predication [for the CH investigation] is true or not true ...

In other words, Page is flatly stating that a Full Investigation had been opened without any "specific and articulable facts" being known. But this is not how it's supposed to work. You don't open a Full Investigation and then decide whether there are sufficient specific and articulable facts to support your decision. If you're not more sure than not sure (a rough and ready description of the probable cause standard) whether the predicating information is true or not, then you should be opening a Preliminary Investigation to make some determination in that regard.

As Comey later testified, the dossier allegations weren't actually facts, because they hadn't been verified. They were mere allegations, but apparently mere allegations were good enough for government work when it came to subverting the Trump campaign and placing it under FISA surveillance. Yes, as Page correctly stated, mere allegations would have been good enough to open a Preliminary Investigation. The FBI could then have conducted logical investigation and possibly worked their way up to a Full if they were able to verify any significant claims in the Steele dossier. The problem for the FBI was that FISA is not an authorized technique ("tool" in Page's lingo) that can be used in a Preliminary Investigation--FISA is only authorized in the case of a Full Investigation. And that's why CH was opened as a Full before the FBI had gone "down the path to figure out whether the predication is true or not true." The FBI felt they needed an insurance policy in the form of a FISA order, and they needed it before the election.

Page seems to believe that she's presenting a quite reasonable account of the FBI's actions. In reality, however, she has laid bare the bias which also led to the skirting of guidelines, that laid at the very inception of the FBI's investigation. And then came the Carter Page FISA, which compounded it all.

ROUND TWO: JOHN RATCLIFFE QUESTIONING

John Ratcliffe's questioning of Page largely covers the same issues. However, because the GOP approach was--at least at this stage--to proceed chronologically, Ratcliffe approaches those issues on the basis of a different set of texts. Therefore he picks up more or less where Trey Gowdy had to stop, around the time of the CH opening and the "insurance policy" text.

Ratcliffe first turns to a Peter Strzok text in which Strzok expresses to Page his delight that, with the Hillary email investigation--Mid Year Exam (MYE)--closed and CH opened he could devote himself to something that "matters because it MATTERS." Page explains Strzok's meaning as follows:

The Clinton investigation was whether she mishandled classified information. That's important. It matters, but it does not matter like a person associated with a presidential campaign receiving and potentially accepting, which we didn't know, obviously, but the risk that somebody had received and accepted an offer of assistance from Russia, which I view as our sort of most treacherous adversary. So this was a more significant, more concerning investigation and unquestionably one which was more threatening to our national security.

In other words, Page is saying that Strzok wasn't discounting the importance of the MYE investigation, nor was he elated because the new target was Trump. He was just weighing the objective relative importance of the two investigations.

Now, Page is a lawyer, and had considerable amount of experience dealing with important investigations at a high level. One would therefore expect her to choose her words carefully. So it's a bit surprising that she should state that the FBI "obviously" "didn't know" that "a person associated with [the Trump] campaign ... had received and accepted an offer of assistance from Russia." If that was the case--and objective evaluation of the Steele dossier that formed the basis for CH shows it to be so--then CH should never have been opened as a Full Investigation. If Page truly believed that CH was properly opened as a Full Investigation then she should have phrased her response something like this:

True, we didn't have proof beyond a reasonable doubt, but we had solid grounds based on "specific and articulable facts" for believing that it was more likely than not that someone in the Trump campaign had been coopted by the Russians.

The fact that nobody in the FBI has said this--not Comey, no Bill Priestap who headed Counterintelligence at this time--but instead they have all insisted that Steele's allegations were all unverified leads to the only possible conclusion: CH was illegitimately opened as a Full Investigation. As we will see, that had significant consequences with which we are still dealing today.

The other thing we see in this exchange, once again, is the lack of perspective--the bias--that Page and, by implication, Strzok exhibit. Page characterizes MYE as a case of Hillary "mishandl[ing] classified information," as if that were the only counterintelligence concern involved, as if Hillary's actions happened in a vacuum. In reality, there is strong evidence that Hillary's homebrew server was compromised by foreign intelligence services who obtained extremely sensitive information. The MYE was based on solid and verified facts--it was not a tissue of allegations ginned up by a political party's opposition research firm. By contrast, the FBI had every reason in the world to know that the Steele allegations were coming from the Clinton campaign and that the prime purveyor of this information was, in the words of Bruce Ohr, biased and "desperate" to prevent the election of Donald Trump. Steele's motivation was crystal clear, and according to Ohr it was stated to both McCabe and Page. Steele, a contract employee for a branch of the Clinton campaign, hoped that information that he claimed to have obtained from Russian sources who could not be contacted by the FBI would be used to take out the Republican presidential candidate. And the FBI response was to immediately open a Full Investigation on the Trump campaign, rather than first try to verify the allegations.

WHO WAS THE REAL TARGET?

Ratcliffe adroitly follows up this exchange and draws out a series of admissions from Page that strengthen the case that CH, while formally opened on campaign members, was really focused on Trump from the beginning. For example ...

Ratcliffe turns to a Page text that was sent within days of the CH opening, and which refers to a "protect[ing] the country from that menace." Asked to identify who "that menace" is, Page immediately responds: "Donald Trump." She then tries to backtrack and claim it was really people in the Trump campaign, not Trump himself, but ends up admitting the legitimacy of Ratcliffe's understanding: it really was about Donald Trump.

A little later Ratcliffe challenges Page re this exchange:

Page: "Trump's not ever going to become President, right, right?"
Strzok: "No, no, he's not, we'll stop it."

and notes that that text was a week after opening on the campaign--obviously implying that Trump is the intended target, no matter what the formalities of the opening were.

THE MOST DAMAGING BOMBSHELL: TEAM MUELLER

However, all this leads up to what I consider the key moments in the Page testimony. Ratcliffe follows the series of texts up to May of 2017 and the opening of the Special Counsel investigation. He then focuses on the texts in which Page and Strzok discuss whether or not to join Team Mueller. Ratcliffe first asks Page to explain a Strzok text about "unfinished business":

"For me and this case [CH], I personally have a sense of unfinished business. I unleashed it with MYE. Now I need to fix it and finish it."

What could possibly be the "unfinished business"? Page tries to explain this by asserting that the FBI, by Comey's decision to reopen the MYE investigation shortly before the election, had improperly influenced the election. The obvious problem with that explanation is that Comey's decision had nothing to do with Donald Trump. Nor is it in any way clear in what possible way investigating Trump--based on unverified and unverifiable allegations--could possibly "fix" those past events. Unless revenge is considered a "fix."

Ratcliffe allows Page to chatter on for a bit, and then hones in: "a person reading [the text] might come to the conclusion that the fix ... means change the outcome, fix the outcome, stop Donald Trump, finish it."

Page protests "it's not because of who won or didn't win" but when confronted by Ratcliffe suggestion that Strzok really does mean "stop Donald Trump" she admits: "I don't have a better explanation."

And this lead to the culminating exchange, in which Ratcliffe questions Page regarding a well know Strzok text about the prospects of the Mueller investigation:

"You and I both know the odds are nothing. ... my gut sense and concern there's no big there there." 

Page asks to speak to the FBI counsel before answering, but not before blurting out:

"... even as far as May of 2017, we still couldn't answer the question -- sorry."

After speaking to the FBI counsel Page, protesting that she's "not trying to be cagey," states that she needs to rephrase the response that she began. Again she talks around the central issue for a bit, but finally admits that, while there was a "scope of possibility" of finding some wrongdoing, "it didn't ultimately touch any senior, you know, people in the administration or the campaign." Which is exactly the point Ratcliffe was getting at: the focus really was on Trump; if the investigation wasn't going to lead to impeachment--and Page does use that word--then they probably didn't want to be involved.

But there's a bigger point to this final exchange, and it goes back to the CH opening as a Full Investigation. I have argued repeatedly that the Steele dossier allegations could only ever have been used to justify a Preliminary Investigation--absent further verification. Gowdy and Ratcliffe were able to repeatedly elicit from Page admissions that the FBI did not, in fact, have "specific and articulable facts" to support a Full Investigation. All they had were unverified allegations that were, in principle unverifiable, since if they weren't totally invented by Steele then they came from sources in Russia who could not be tested for veracity, access, etc. Gowdy's and Ratcliffe's efforts culminated with Page blurting out that "even as far as May of 2017"--after 8 full months of investigation--"we still couldn't answer the question." In other words, they couldn't answer the question: were Steele's allegations credible. And this despite the fact that they had been presented as credible to the FISC in the Carter Page FISA application!

Let's now ask: How does that affect the Team Mueller investigation, or, how should it have affected the Team Mueller investigation?

The federal regulations that cover the grounds for appointing a Special Counsel simply state:

§ 600.1 Grounds for appointing a Special Counsel.
The Attorney General ... will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted

When you compare that seemingly simple statement to the FBI's guidelines, however, you'll see that life in the FBI is a lot more complicated than you might suppose. When can a "criminal investigation" be opened under those guidelines? Without beating around the bush, I will assert that what the Special Counsel regulations have in mind when they reference "criminal investigation" is what the FBI's guidelines refer to as a "Predicated Full Investigation." And when I quote those guidelines you'll immediately see how similar they are to the counterintelligence guidelines under which CH was opened:

b. Full Investigations
i. Predication Required for Full Investigations
A full investigation may be initiated if there is an articulable
factual basis for the investigation that reasonably indicates that a
circumstance described in paragraph 3 .a.-.b. exists or if a
circumstance described in paragraph 3 .c. exists.
ii. Methods Allowed in Full Investigations
All lawful methods may be used in a full investigation. 

The key words, of course, are "an articulable factual basis ... that reasonably indicates." You can see how closely that tracks with "specific and articulable facts." Once again, we're not dealing with supposition, or narrative, or mere allegations. With that in mind, let's review how the Special Counsel was actually appointed.

On May 17, 2017 Deputy Attorney General (DAG) Rod Rosenstein's wrote a letter in which he appointed Robert Mueller as Special Counsel (SC). In the letter Rosenstein states:

The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017,  ...

As we know, "the investigation confirmed by Comey" was Crossfire Hurricane--a Full Investigation. How would Rosenstein know that Crossfire Hurricane, which he was handing off to Mueller, was already a Full Investigation? Easy. He, or someone at the FBI, could look up the case status and there he would probably see an "FI," meaning: Full Investigation. Simple, right? In fact, that method is a lot simpler than reviewing the actual predication--the Steele allegations--and asking: Is there any reason why we should believe that these allegations are "specific and articulable facts" or that they form "an articulable factual basis ... that reasonably indicates" that a federal crime has occurred? 

Which method did Rosenstein use? I would argue strenuously that Rosenstein had an ethical obligation to conduct a de novo review of the predication for Crossfire Hurricane before taking the momentous step of appointing a Special Counsel--as did Mueller, when he accepted the appointment. I would also argue strenuously that neither Rosenstein nor Mueller did so--even when presumed experts in such matters, such as Comey and Priestap, testified to Congress that those allegations that formed the supposed basis for Crossfire Hurricane as a Full Investigation had never been verified. Just as Page appears to admit.

How can this scandalous situation be remedied? How to "fix" or "finish" it, as Peter Strzok, the instigator, might say? I'm not sure, but a good first step would be for AG Bill Barr to turn IG Michael Horowitz loose and have him look into this matter. In the meantime I suppose all we can do is thank Lisa Page for making all this perfectly clear.