McCarthy: About The "Premise" Of That Investigation ...

Commenter Cassander's prodding reminded me to read Andy McCarthy's latest article--The First Glimpse into Horowitz’s FISA-Abuse Report. I haven't got far into it, but right near the beginning McCarthy really hits the nail right on the head, skewering some of the spin that some of us have been fretting over. McCarthy addresses the business about the "premise" (or "predication") for the FBI investigation that served as the basis for the Carter Page FISA that is the main focus of the OIG FISA report--due out December 9th.

I discussed this at some length earlier today, but McCarthy gets right to the heart of the CNN spin very elegantly and pithily. It's a useful reminder of how we need to focus on key issues in order to separate the wheat from the chaff. After briefly recounting the news, the revelations about disgraced former FBI lawyer Kevin Clinesmith's bad behavior with other people's emails, McCarthy writes:

CNN adds that some of the witnesses interviewed expect the IG’s report will “find mistakes in the FBI’s handling of the FISA process, but that those mistakes do not undermine the premise for the FBI’s investigation.” The network describes that premise as the conclusion “that Russia interfered in the 2016 election.” 

Of course, that only relates half the story — the uncontroversial half. The FBI’s full premise was that the Trump campaign was complicit in Russia’s election interference. 

What is in issue is whether there were adequate grounds for suspicion of a Trump–Russia criminal conspiracy — enough to justify the FBI and the Justice Department in taking the fraught step of investigating the incumbent administration’s political opposition during a presidential campaign, exploiting such powerful counterintelligence measures as FISA warrants, the deployment of informants, and collaboration with foreign intelligence services against Americans who worked on the Trump campaign — the kinds of investigative techniques reserved for hostile foreign powers and terrorist organizations. 

If the narrative taking shape is that there may have been some abuses but it doesn’t change the fact that Russia meddled in the election, that misses the point. The questions are: What was the FBI’s evidence — which it represented as verified information in the warrant application — that the Trump campaign was in a cyberespionage conspiracy with the Kremlin? What evidence led the Bureau and the Justice Department to allege that Carter Page — who as late as spring 2016 was apparently cooperating in a federal prosecution of Russian spies — was a willful agent of the Putin regime engaged in clandestine activities against his own country?

Where I would take issue with McCarthy, of course, is his characterization of the conclusion "that Russia interfered in the 2016 election” as "uncontroversial." Thankfully it appears that Bill Barr doesn't regard that as totally uncontroversial--otherwise John Durham wouldn't be causing all those CIA analysts to lawyer up as he interrogates them about Brennan's Intelligence Community Assessment that formed the basis for that "uncontroversial" conclusion.

This passage also highlights a major difference between what Durham is doing and what Horowitz has been doing. Horowitz had no jurisdiction to probe into the origins of Crossfire Hurricane, or the process by which the CIA came up with their Assessment. He had to accept the Assessment's conclusion as a given. Durham does have jurisdiction over the Assessment. And he's going for it. Not just the part that McCarthy, rightly, views as controversial, but the whole ball of wax.

These distinctions are what we have to keep in mind going forward, as well as in assessing the FISA reports conclusions. Barr/Durham are not bound by those conclusions, as the trajectory of their investigation shows.