The Horowitz Dossier And Predication

John Durham and his team are pretty much leaking nothing. Which makes for a slow news cycle. So, to kill the time while we await the big developments come May/June, as per AG Bill Barr's assurances in his most recent interview, I've started reading the Horowitz Dossier, aka, "The FISA Report." Finally! Of course I've read lots about it, and excerpts from it, but now I'm doing the whole thing in a systematic way. I've started at the beginning and plan to work my way through to the end, and I'm almost a quarter of the way through already.

My initial impression is that I can see why the Durham investigation is taking so long. What happened from 2015 (at least) through to 2019 (at least) was immensely complex and involved an awful lot of people, all offering excuses and justifications for their commissions and omissions. And to complicate matters, some of the main actors are scattered around the globe, are subjects of foreign powers, even operatives of foreign "allied" or "friendly" intel services. At least one key player is all of the above and, as far as you or I can tell, has disappeared. Putting this beast of an investigation into prosecutive form is bound to be a gargantuan job.

Another initial impression is that it's been a long time since I've read so much officially sanctioned BS. In particular, the justifications for starting Crossfire Hurricane, for starting the various sub-investigations off that main file, for not attempting a defensive briefing of the Trump campaign, for accepting the word of Fusion GPS, Chris Steele, the DNC, Crowdstrike, and all the other unsavory anti-Trump actors--it's all well beyond laughable. If you ever had any doubt that John Brennan's January, 2017, Intel Community Assessment was anything other than an after the fact justification--i.e., a coverup--all doubts will be dispelled by reading Horowitz's report. But this is the subterfuge that Durham has to expose--in prosecutable detail. It's a big job, and he's up against experienced bureaucratic operators.

You may recall that when Horowitz first came out with his report, both Barr and Durham took vocal and public exception to Horowitz's claim that Crossfire Hurricane was properly predicated. Rather than go into that issue again, I want to briefly point out something I noticed and which took me very much by surprise. That something is Horowitz's view of the authority of DoJ and the FBI to conduct investigations and, specifically, his ideas on the whole concept of predication. This topic is raised on page 19/51 (the first number is the numbered page, the second is the overall page number in the pdf file). Here's what Horowitz says (all extra formatting is mine):

A. Predicated Investigations

Where the FBI has an authorized purpose and factual predication--that is, allegations, reports, facts or circumstances indicative of possible criminal activity or a national security threat, or the potential for acquiring information responsive to foreign intelligence requirements--it may initiate an investigation. The predication requirement is not a legal requirement but rather a prudential one imposed by Department and FBI policy. [Footnote 41]

[41] For example, the Supreme Court has held that the Department [of Justice] and FBI can lawfully open a federal criminal grand jury investigation even in the absence of predication. See United States v. Morton Salt, 338 U.S. 632, 642-43 ( 1950) (a grand jury "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not"); see also United States v. R. Enterprises, 498 U.S. 292, 297 ( 1991).

So, in the body of the dossier Horowitz is saying, point blank, that the DOJ and/or FBI could, if they wanted to, dispense with predication requirements and just start investigating for any reason--or none at all. In other words, according to Horowitz, if the DoJ/FBI decided they wanted to assure that random citizens were not national security threats--and protecting against national security threats is an authorized purpose for the DoJ/FBI--they could start investigating random citizens for that purpose with no predication whatsoever regarding the individuals being investigated. Simply by changing their guidelines. That, according to Horowitz, would be fully compatible with our Constitution--it would simply be a matter of whether the DoJ could get away with that politically. Does that sound right to you?

Of course, that's pretty much what happened to Michael Flynn--under the interpretation of events most favorable to the FBI and DoJ. As nearly as we can determine the FBI and DoJ decided to find out if they could catch Flynn in a factually inaccurate statement, even though 1) Flynn's phone call to the Russian ambassador not only did not violate any law, it was actually part of his official duties, and 2) the FBI and DoJ already knew what Flynn and the ambassador had discussed and knew it was totally above board. There was no predication for the investigation--it was a test of Flynn's memory. The booby prize, in the form of a "lying to the FBI" prosecution, went to Flynn.

I was amazed to "learn" all that, and so I looked up the 1950 SCOTUS case of United States v. Morton Salt., which Horowitz cites in support of his stated view. Imagine my surprise at what I found. Horowitz claims, in footnote 41, that

"the Supreme Court has held that the Department [of Justice] and FBI can lawfully open a federal criminal grand jury investigation even in the absence of predication. ... even just because it wants assurance that [the law is not being violated]."

In fact, the Supreme Court held nothing of the sort. The Court in the Morton case never even mentions either the FBI or DoJ. Not even once. The words "grand jury" do appear--once, but explicitly only by way of analogy. Here's what that case was actually about:

This is a controversy as to the power of the Federal Trade Commission to require corporations to file reports showing how they have complied with a decree of the Court of Appeals enforcing the Commission's cease and desist order, in addition to those reports required by the decree itself. [338 U.S. 632, 635]

Neither DoJ nor the FBI were involved, nor was there any grand jury investigation. It was a strictly regulatory matter. It was in that regard that the Court drew an analogy between grand juries and the broad regulatory reach of administrative agencies like the FTC (a matter which may soon be addressed by the SCOTUS). In 1950 the Court was still wrestling with the whole question of just what the nature of regulatory agencies is under our Constitution--a question that remains controversial 70 years later. In that context, Justice Jackson came up with this analogy:

an administrative agency charged with seeing that the laws are enforced ... is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or [338 U.S. 632, 643] even just because it wants assurance that it is not.

That, to me, is a very dangerous analogy, but it is certainly not the holding of the case. And notice: the analogy is not even a strict analogy: Justice Jackson doesn't say that a Grand Jury and a regulatory agency are exactly alike. He only says--because he's grappling with a still novel concept that he wants to fit within traditional legal thinking--that a regulatory agency is more analogous to a Grand Jury than it is to a properly judicial body (read the full opinion for that). But it's still pretty much sui generis, which is why Jackson resorts to an analogy.

Nobody I'm aware of has ever claimed that Horowitz is stupid. But to suggest that the FBI--the premier federal law enforcement agency--could even potentially end up in the business of starting up investigations just to assure itself on no evidence or suspicion whatsoever that no crime has been committed by any given person is an outrage. I regard that as a fundamental violation of our Constitutional guarantee of due process. In fact, Justice Jackson's characterization of a Grand Jury's function is sloppy at best. For a Grand Jury to be called there must at the least be a reasonable suspicion of criminal activity. It may not reach the level of probable cause, but there must be some articulable reason to at least suspect that a crime has occurred. The same goes for FBI investigations.

Here's the danger I see in what Horowitz is suggesting, as it applies to the Russia Hoax. Obviously--to anyone who reads Horowitz's report, including Barr and Durham--Horowitz has a very relaxed notion of predication. But more to the point: If predication is merely a "prudential" matter that has nothing to do with Constiutional guarantees of due process, if predication is required only as a matter of Departmental guidelines, then the whole Russia Hoax itself at its origin and core may not involve a violation of law--only a violation of internal guidelines for which a disciplinary slap on the wrist may suffice.

Now, having said that, it's still true that violations of the Attorney General Guidelines--while not criminal in and of themselves--could still be a key part of an overall theory of a criminal conspiracy: to defraud the government of honest services, to violate civil rights of citizens, etc. That, of course, was one reason why Barr and Durham immediately and publicly disagreed with Horowitz's claim that there had been sufficient predication for Crossfire Hurricane. However, I strongly believe that Horowitz's dangerous ideas on predication should not be allowed to go unchallenged. Just as illegally obtained evidence is excluded on Constitutional grounds, a lack of predication should be seen as the due process issue it really is. We've all seen and been outraged by the abusive prosecutions that derive from phoney predication--the Horowitz dossier is replete with examples. But we've also seen the threat of prosecution based on phony predication being used to bludgeon innocent people with the threat not only of jail but also of public disgrace, of bankruptcy, of devastated family life. It's high time that these abuses led to criminal consequences for the prosecutorial and investigative perpetrators, rather than mere disciplinary slaps on the wrist--if anything.

Of course it's good to know that Barr and Durham strongly believe that the Russia Hoax lacked predication. I hope this overview will suggest how complicated that issue is for their investigation, and so why each investigative step must be carefully planned out. Still, I very much want to see the roots of these abuses addressed. After the fact correction and vindication should not be considered acceptable. We need prevention, and the only way to get that is to instill fear of consequences in prosecutors and investigators who commence hoax investigations in the belief that they can do so with impunity. Until that happens the abuses will continue.