Saturday, November 23, 2019

UPDATED: What Can We Reasonably Expect From OIG's FISA Report?

I'll admit I was a bit bummed by the end of yesterday. The initial upper of learning that, beyond the obvious misrepresentations in the Carter Page FISA application, OIG determined that an FBI lawyer had actually altered material that was submitted in support of a renewal application was followed by the heavy downer of the NYT's claims that downplayed the overall significance of the OIG report. Although the sources for the NYT story were obviously interested parties, what disturbed me beyond the spin was semi factual assertions such as these (I quote from the WSJ):

The Justice Department's inspector general is expected to conclude there was a proper legal basis for the government's application to monitor a former Trump campaign foreign-policy adviser, but that errors and lapses in judgment were made during the process, according to people familiar with the matter.

Now, some of this could be spin. "Errors and lapses in judgment" could be a minimum assessment. If there were proof of motive, those "errors and lapses in judgment" would unquestionably be criminal acts. The problem from a prosecutorial standpoint is establishing the motive beyond a reasonable doubt. Even obvious bias against a political candidate may not be adequate to establish that the bias was itself the motivation that actuated the "errors and lapses in judgment" that led to a FISA warrant. And three FISA renewals. Against a man who has been charged with no crimes.

What were some of these "errors and lapses in judgment"? According to the NYT the report will say that

The paperwork associated with the renewal applications contained information that should have been left out, and vice versa, ...

In other words, errors and lapses of judgment of both omission and commission. Two glaring examples come immediately to mind:

* The FISA applications included mention of Carter Page's previous contacts with Russian officials, but omitted to explain that Page had--as far as was alleged--truthfully reported on those contacts and fully cooperated with the FBI (and CIA) regarding those contacts. The full nature and extent of Page's previous cooperation with the US government was omitted.
* The FISA applications included--touted--Christopher Steele's supposed past reliability as a source, but omitted to clearly disclose that during the relevant time period--his "reporting" on the Trump campaign--Steele was employed as an opposition researcher for the Clinton campaign. (This may raise issues that OIG raised separately in its recent report that slammed the FBI for its serious failures in vetting sources.)

Either of those two examples should have raised red flags for any disinterested judge assessing the applications--if the facts had been revealed.

Then what could it mean to say that "there was a proper legal basis for the government's application to monitor a former Trump campaign foreign-policy adviser"? That, I suggest, depends on the point of view. Here's what I mean.

Objectively speaking there obviously was NOT a "proper legal basis for the government's application to monitor" Carter Page. We know this for a fact because the FISA coverage of Page was ultimately dropped by Team Mueller and Page was never charged with any wrongdoing--despite the tribulations that others associated with the Trump campaign have gone through. If there were a proper legal basis for the application that FISA coverage on Page would not have been dropped.

Now, In order for a "proper legal basis" to exist to obtain a FISA order against a US person (such as Page) the FISA application must establish probable cause that the US person (Page):

knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States.

That clearly didn't pan out--and the Mueller Dossier's essential silence on Page speaks volumes in that regard. That means that, at a minimum, Team Mueller realized that there was no such probable cause, but quite probably--based on the silence re Page--that they knew that Page was not engaged in clandestine intelligence gathering at all. At least not for a foreign power--only for the US. Significantly, there is little to no effort in the Mueller Dossier to even smear Page by implication. No claim even that Page had been involved in such activities but ceased and desisted before a case could be made.

In light of that, I ask again: What could it mean to say that "there was a proper legal basis for the government's application to monitor a former Trump campaign foreign-policy adviser"? It could mean one of two things.

First, it could mean that the FBI officials who prepared, vetted, and submitted the FISA application did so in complete good faith--even if incompetently. I doubt that the OIG report will, when it sees the light of day, offer such a total exoneration. The reason is that, beyond the "errors" there are the "lapses of judgment." People at that level aren't supposed to suffer "lapses of judgment" on such important matters. Then again, neither are they supposed to make "errors." Nor alter documents. If the OIG doesn't slam the FBI's conduct--in close cooperation with highly experience DoJ officials--then this report will fairly be characterized as a whitewash. I think Horowitz knows that.

The second explanation is that the report will state that from the perspective of the FISA court, the FISC, "there was a proper legal basis for the government's application to monitor a former Trump campaign foreign-policy adviser". The FISC, of course, cannot be charged with failure to know about the FBI's "errors and lapses in judgment", since they were not disclosed to the FISC. From that perspective, the FISC may be said to have reasonably concluded--based on the applications before them, which is all the FISC had to go on--that there was "a proper legal basis for the government's application to monitor a former Trump campaign foreign-policy adviser".

I won't pretend. All this is deeply unsatisfactory and unconvincing. Nobody with any sense of reality doubts what happened. The irregularities all point toward it. No reasonable person can doubt that the omissions and commissions I cited above go way over the line of anything that could be acceptable in submitting such a consequential document to a court as a FISA application. As sundance at CTH has rightly said, FISA coverage is "the most extensive and intrusive form of surveillance ... possible." And this was in the context of the president of the United States, who was kept in the dark about it.

All that said, how are we to understand this? What is the proper context in which to assess the OIG report if it fails to make the criminal referrals we believe are warranted?

I return to two principles that I have stressed in the past, but which I've needed to remind myself of. One is that the scope of any OIG investigation is strictly limited. OIG has jurisdiction only over current DoJ employees. It can, of course, interview non-employees, but only if those persons consent to be interviewed--OIG has no leverage over them, as is the case with DoJ employees. Nor does OIG have grand jury powers--so, no subpoenas for persons or documents not already subject to OIG jurisdiction.

Here's a good example of what this means in practice. We've heard that OIG interviewed one very important player in all this who is not and never was a DoJ employee--Christopher Steele. However, that interview was doubtless very different from bringing Steele in front of a grand jury. The interview would have been a negotiated affair, with Steele answering questions only to the extent that he decided upon, and upon topics that he chose. As for OIG interviewing someone like Glenn Simpson? Dream on.

As a result, an OIG investigation into the Russian Hoax was bound by the nature of all OIG investigations to be limited and incomplete, simply because the Russia Hoax involved so many persons who either were no longer DoJ employees or never were DoJ employees.

That doesn't mean that this OIG investigation has been a waste of time. We'll undoubtedly see that OIG has gathered a vast amount of useful information--all of which OIG has been sharing with John Durham's investigators. The significance of that is that the information comes to Durham not in raw form but often as processed and sifted information--which can significantly speed up Durham's investigation. Which brings us to the second point.

John Durham is, unlike Michael Horowitz at OIG, a US Attorney, a prosecutor who can empanel a grand jury. While OIG can and has been sharing information with Durham, the reverse is not the case. Durham is under no obligation to share information with OIG and, in the case of grand jury information, is forbidden to do so.

That Durham has been very busy is clear, as for example from the fact that he has now made three trips to Italy to meet with Joseph Mifsud's legal representatives--or possible with Mifsud himself. Since on his first trip Durham obtained Mifsud's famous anti-suicide recording, one assumes that the later trips are follow ups based on already obtained information, to develop it.

The focus of Durham's investigation, as we have learned from public statements by AG Bill Barr, is also significant, because that focus is on areas that are largely beyond OIG's jurisdiction (there is inevitably overlap, of course). Barr's mandate to Durham has been, essentially, to go behind FISA. The FBI cannot simply go into the FISC and ask for a FISA order against someone--let alone against a US person, for whom the law sets separate standards. The FBI must first have a Full Investigation predicated and opened on the targeted person. Barr has directed Durham to investigate the origins of the Russia Hoax, which means that Durham is going behind the FISA issue to investigate the origins of the FBI investigations that supported the FISA (among many other things). These are areas that OIG will not have investigated to any great extent, and will involve persons over which OIG has no jurisdiction: Steele and the other UK players, Mifsud, Downer and the Aussies, Clapper, Brennan, the gaggle of CIA analysts, DoS officials (Nuland, Kavalec), and WH personnel (Rice, etc.).

The takeaway from this is that the OIG FISA report is almost certainly only the beginning of a flow of information that will be coming our way. That is also almost certainly the meaning of Bill Barr's briefing of President Trump on the report and of Trump's recent interview on Fox, in the course of which he spoke of the historically unprecedented nature of the investigative findings that will be coming our way.

To put the investigative aspects of all this in better perspective, let's turn to Larry Johnson's excellent blog: Are the Coup Plotters Against Trump Facing a Reckoning? What Johnson does is to establish an investigative timeline to demonstrate the interaction between the OIG and Barr/Durham investigations--what's been going on "behind the scenes", and that has Dems in a panic. In particular, he shows how the OIG investigation has continued well past its original projected completion date, and how that has delayed to some extent Durham's activities. Of course Durham has had plenty to do, but he has also had to give deference to OIG with regard to some of the purely internal DoJ matters. All that is coming to a close on December 9th. We should be seeing Durham rampant.

Here's how Johnson's timeline works.

As we know, Bill Barr was confirmed as Attorney General on February 14, 2019--not that long ago in investigative terms. While we know he had been keenly following Russia Hoax events, and expressing concern for the country as a result, it would only have been after his confirmation that he would have begun to get a real handle on the enormity of it all. As Johnson says: "What he learned in the subsequent months [after his confirmation] apparently shocked and alarmed him."

No doubt Barr was briefed by Rod Rosenstein on the Mueller Witchhunt and related matters. However, Barr's receipt of the Mueller Dossier on March 22, 2019, surely had to have provided him with a wealth of information that would have "shocked and alarmed him."

It was at this point in time, after receiving the Mueller Dossier but before its public release on April 18, 2019, that Barr made his first, typically brief, public remarks about the OIG FISA investigation. He also received criminal referrals from Devin Nunes. In testimony before the House Appropriations subcommittee hearing on the Justice Department’s budget proposal:

the Office of the Inspector General has a pending investigation of the FISA process in the Russian investigation, and I expect that that will be complete probably in May or June, I am told. (April 9, 2019)

The next day, April 10, 2019, Barr made a far more explosive statement to Congress:

“I think spying on a political campaign is a big deal,” Mr. Barr said, adding that he believed “spying did occur.”

Note that Barr is referring to matters that could involve but FISA, but might include other forms of surveillance:

“I am not suggesting that those rules were violated, but I think it’s important to look at them,” Mr. Barr said. Later he said he wanted to ensure that there was no “improper surveillance” — not suggesting there had been, but that the possibility warranted review.

A month later, on May 13, 2019, Barr announced that Durham, the US Attorney in Connecticut, had been chosen to examine the "origins" of the FBI's Russia investigation. (We have since learned that Durham had already been active, as early as September, 2018, but we don't know what his investigative focus was at that time, nor how it may have related to his current investigation--although there was a relation.) This, says Johnson, "is where the original timeline for releasing the Horowitz report was derailed and delayed."

What happened is that Horowitz developed "new information" that led him to "expand his investigation and re-interview several witnesses." Johnson speculates that a key witness turned to OIG out of fear of Durham's newly energized investigation. Additional witnesses then came forward to talk to OIG, delaying Durham's work in that regard.

All was not delay, of course. OIG shared its information with Durham, and Durham's work fed off that new information as well:

Fox News’ Bret Baier reported on Tuesday [October 8th] in a Fox News exclusive that “based on what he has been finding, Durham has expanded his investigation adding agents and resources, the senior administration officials said. The timeline has grown from the beginning of the probe through the election and now has included a post-election timeline through the spring of 2017, up to when Robert Mueller was named special counsel.”
Two weeks later, on Wednesday, 25 October 2019, Barr's Justice Department leaked two critical developments: 
1. The investigation of the roots of the plot to destroy Donald Trump and his Presidency is now a criminal matter. 
2. Inspector General Horowitz announced that his report on the FISA fraud would be out shortly with no major redactions.  
This was not a mere coincidence. Attorney General Barr was letting it be known that the Horowitz investigation was tied to Durham's criminal investigation. And the fact that it is a "criminal" matter means there is a Grand Jury. I want you to recall the criminal referrals from Devin Nunes.

That brings us pretty much up to date. Johnson, like me, views Trumps remarks yesterday to Fox as highly significant. Those remarks, in which Trump stated that the "overthrow attempt of the presidency" could be traced to the Obama presidency, "to the highest levels," was clearly planned, and was not off the cuff. Trump doesn't oversell things, doesn't cry wolf. This derives from that "great Attorney General," Bill Barr. Once the FISA report is out, the focus will be fully on Barr and Durham.

Here I want to quote Johnson in full, because he makes several important supporting points for this timeline based narrative:

I think it is important to lower expectations about what the Horowitz report will accomplish. It is not an indictment. It is an audit. It will present findings of deficiencies without reaching conclusions about bias or motives of those who behaved illegally or incompetently. That is not Horowitz's job. But the report will provide criminal referrals, though that will not likely be specifically mentioned in the report. This is an important step in setting the stage for John Durham to press forward with the criminal investigation. 
I want to remind you of Bill Barr's speech to the Federalist Society a week ago. He made a specific point about the plot to sabotage Donald Trump's Presidency: 
    Immediately after President Trump won election, opponents inaugurated what they called “The Resistance,” and they rallied around an explicit strategy of using every tool and maneuver available to sabotage the functioning of his Administration. Now, “resistance” is the language used to describe insurgency against rule imposed by an occupying military power. It obviously connotes that the government is not legitimate. This is a very dangerous – indeed incendiary – notion to import into the politics of a democratic republic. What it means is that, instead of viewing themselves as the “loyal opposition,” as opposing parties have done in the past, they essentially see themselves as engaged in a war to cripple, by any means necessary, a duly elected government. 
I believe that Bill Barr intentionally signaled that the sedition by the intelligence community, the FBI and the Department of Justice will not be allowed to slide. But he is going to do everything to punish them according to the law. He is committed to a rule of law and enforcing the laws of this country.

Johnson concludes by turning to John Durham's personal history, as I have in the past. I have several times suggested that Durham is very committed to pursuing this Russia Hoax investigation wherever it goes out of a sense of serious, unfinished business from his own past. Johnson explains so admirably that, again, I want to share it:

And then there is John Durham. 
     In the late 1990s, Durham was tapped by Bill Clinton’s justice department to investigate Boston police and FBI agents’ connections with infamous gangster James “Whitey” Bulger. That investigation ultimately identified corrupt law enforcement officials who had given the killer information he then used to kill informants and eventually became a part of the case that led to Bulger’s conviction. 
Durham's investigation implicated Robert Mueller. According to knowledgeable sources, the Clinton Justice Department would not allow Durham to bring charges against Mueller: 
I do not believe that Bill Barr is going to prevent John Durham from following the evidence and charging those culpable with crimes. I suspect that this fact is weighing heavily on Jim Comey, Andrew McCabe, John Brenna, Jim Clapper and others in the FBI, DOJ and intelligence community. We will know more in a month.

This story is just beginning.

UPDATE: What the "altered email" means in the big picture. Durham is gonna be squeezing Clinesmith like Clinesmith can't imagine. MUST WATCH:


  1. (My comments are based on your first couple of sentences. I haven't read your whole entry yet.)

    It's understandable to be let down. But, this is spin being reported by a friendly outlet for the Deep State. Preet Bharara took the report seriously.

    Also, Barr and Durham probably know things that Horowitz doesn't. And Horowitz doesn't cover Brennan, CIA and the DoS.

    So we will know more soon.

  2. One thing that I've learned from you is that it's all about the predication. Has anything changed to make it seems as though they had a legitimate predication.

    A retired CIA analyst, Michael Scheuer, was on CBN last night and everything he spoke sounded as though it could have come from your mouth.

    Here is the link.

    1. As you point out, the OIG can't indict people. But if the report says that highly-motivated public servants, patriots one and all, were perhaps only a little overzealous in their actions, that's not good news.

      Seems to me it goes straight to the issue that Barr is concerned with: predication. And a finding of no bad intent has got to affect or put pressure on Barr to roll over some, and keep that meat axe sheathed.

      Still, I'm going to wait. There's all sorts of misdirection out there. And the NYT & WaPo have no credibility whatsoever.

      I'm waiting, like everyone here. I have confidence in Barr, especially after his last two speeches. And that's where the needle is going to stay.

    2. I like this--it's why I'm trying to focus on solid principles:

      "There's all sorts of misdirection out there. I have confidence in Barr, especially after his last two speeches."

  3. I hear you, Mark, on Johnson's guesses about Durham/ Bulger.
    However, I still will be aghast, if the OIG doesn't present criminal referrals vs. McCabe, Comey, etc., on the basis of "a proper legal basis", as if they couldn't see the Steel dossier to be BS.

    1. Yeah, that "proper legal basis" really stuck in my craw.

  4. Trump supposedly had an "animated" meeting with Barr a couple weeks ago. I inferred Barr was telling him the OIG report was no more than what you ever see an any Internal "investigation".

  5. At over 500 pages, the Horowitz report is going to be damning in detail, but will not venture into the realm of making claims that can easily be cast as politically motivated retribution. The MSM is already primed to portray everything in the report as a Trump-commanded attack on his enemies and therefore discredited, so Horowitz must walk a fine line in stating his conclusions. As such, expect the report to draw fire from both Progressives and Conservatives.

    And don't forget that Horowitz is going to be testifying in front of the Senate Judiciary Committee shortly after the report is issued. That public testimony is going to put Pelosi in a very tight box with respect to a potential impeachment vote. As I've indicated previously, the best bellwether on the future is gong to be Rudy, and he is undaunted and loves the microphone.

    1. I don't expect LEGISLATIVE BRANCH POLITICIANS to do anything more than entertain their constituents every election year (like feeding pigeons). The result of the past 3 years of "oversight" investigations has been laughable. It will continue to be empty calories. Popcorn for the peons.

      The ONLY hope for justice is Bill Barr. He is a lion tamer who stepped into the center ring of the Democrat Media Circus swamp. If Barr produces anything of value next year, the Democrat Media attack on him will be epic.

    2. Re Barr, Trump suggested as much himself the other day.

  6. Since I believe Bill Barr is (until proven otherwise) an 'honest broker', I'm sticking with the following:

    1 The NYT Clinesmith leak is mostly spin.

    2 The Horowitz report is 500+ pages long and its highly likely that which ever bad guy who has seen portions of it hasn't seen all of it. I'd be very surprised if anybody associated with Horowitz has leaked. (If Horowitz undermines himself with leaks he's cooked).

    3 Until proven otherwise I'm going to believe Horowitz is straight. Accordingly I'm going to tend to believe the facts that he has found and presents as well as his conclusions regarding wrongdoing over which he has jurisdiction.

    In other words there may be things that happened which don't look so good but which didn't violate applicable laws or rules. Especially in respect of compliance with currently applicable FISA procedures.

    Lindsey Graham has said repeatedly that he intends to look into the question whether our laws and rules are adequate to prevent the kind of behavior undertaken by our law enforcement and counter-intelligence authorities. Well, now he'll have his chance.

    4 For all the reasons Mark and others have mentioned, criminal prosecution falls to John Durham whose robust authority and investigative powers far exceed Horowitz'.

    As Mark says, this 'story is just beginning.'

    1. I hope you watched the video that I just added. Those guys aren't buying the spin, either.

    2. I'll watch it.

      In the meantime here's a link to Andy McCarthy's take on the Clinesmith leak and his views on Horowitz:

    3. Thanks for the reminder. I've been saving that for later.

    4. It's a good thing I didn't read McCarthy earlier--I might have been discouraged from writing myself. It's a very fine article, one of his best. He makes most of the points I make and also adds some. I really like his point about the need for the FBI to show that FISA on a USPER is the "least intrusive option" when Page was literally begging to be interviewed.

    5. Brett Tolman is very good.

  7. There's another aspect to this from the IG perspective. If Comey et al got played by Brennan and the intelligence folks the IG could take the position that while they may have been fools, they acted in good faith. And since the CIA is outside the IG's scope he didn't need to follow the thread any futher.

    1. That theory has been floated. While Brennan may have led the Russia Hoax conspiracy, I don't believe an operator like Comey was in good faith.

  8. "There was a proper legal basis for the government's application to monitor a former Trump campaign foreign-policy advisor(spelling corrected-see adviser vs advisor)
    Question--Which former Trump campaign advisor? Were there not more than one application to the court?

  9. Great job Mark. It is important to lower expectations about the OIG report because the OIG can't do the things we're looking for--prosecutions. As Larry Johnson notes, it's an audit.

    From Dec. 9, until the presumed indictments, the DNC-MSM will be spinning the "mistakes were made, but nothing to see here" narrative as hard as they can spin. Expect snippets quoted out of context to fill the airwaves in support of any and all of the coup conspirators. It will probably be depressing.

    That the bimbo Katie Hill testified to Schiff's panel as if the Russian hoax was true, is all you need to know about how deep the rot is. Talk about having drunk the Kool-Aid.

    It's not as if the media is going to start reporting the story they've kept buried for three years.

    PS: I finished the Lee Smith book earlier this week. Those were some great observations you contributed for incorporation in his work. Well done.

    1. Thanks. It's not accurate to say it's an "audit," but that does convey that it's not a full blown criminal investigation in the sense that must people understand that.

    2. I hear what you're saying, though from my perch a compliance audit--compliance with DoJ policies and procedures--fits the bill. I'm sure I'm ignorant of the specific government bureaucratese that precisely covers the work of the OIG. Cheers.

    3. "From Dec. 9, until the presumed indictments, the DNC-MSM will be spinning the "mistakes were made, but nothing to see here" narrative as hard as they can spin."

      Forbes, if you want a laugh, see Lawfare's Benjamin Wittes attempt to do exactly that here:

      Comments are especially revealing. The twitterverse isn't buying what Wittes is selling.

      In my opinion, Wittes himself has a lot to lose here.

    4. Might hafta travel a bit to visit his BFF in prison?

  10. I don’t consider the WSJ to be any better than the NYT when it comes to facts, fairness and all that. Particularly when it comes to Donald John Trump. Their rationale sounds like what we were lead to expect as a defense from the Obama coup personnel: We were just doing our job, "by the book", investigating a possible threat to our country in the form of a presidential candidate (Susan Rice’s CYA memo to self on Inauguration day 2017), and the chorus sung by James Comey and others. Now they are having to append that with the Bill Clinton defense “mistakes were made”. Changes nothing.

    I too will be sick if this is where Barr and Durham and the grand jury end up. But I am not taking the NYT’s and WSJ’s word that that is what will probably happen. Not reliable sources, IMHO.

    1. As Don Surber says, we all know Murdoch doesn't like Trump.

  11. OIG investigation of more than a year into evident FISA abuse, classified at TS, and Leaky Town via The New York Times says he found one FBI lawyer embellished just a bit triggering a major constitutional crisis? Okay, but we're going to need to check your work. And receipts.