Tuesday, March 3, 2020

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.


  1. "hear hear!" for your last 2 sentences.

  2. "If predication is merely a "prudential" matter that has nothing to do with Constitutional (TYPO-correct) guarantees of due process, if predication is required only as a matter of Departmental guidelines."

    I could see predication of a brief, informal probe being merely a "prudential" matter, but not predication of a massive, formal probe, eventually leading to one of the most consequential warrant applications in DoJ history.

    I'm aghast, that such a loophole would ever to have not been ferociously challenged.

    1. What I'm arguing in favor of is recognition that criminal investigation without predication is a denial of due process. Traditionally, due process is usually invoked in criminal cases only when the State takes some action against an individual--a search, arrest, beginning of prosecution, etc. The general idea of due process, however, goes beyond mere legality and involves the idea of fair play. That, IMO, is the idea behind the Guidelines that require predication--it's a recognition that it's fundamentally unfair to subject a citizen to investigation--even if he's unaware--without a justification that is "fair." But there's not much in the way of case law on the subject. Now, with all the cards stacked against the individual, the State can get away with far too much in terms of abusive investigation that may have enormous consequences well short of incarceration or even arrest. My contention is that such cases violate the promise of fairness that's inherent in the concept of due process, because once an investigation is started a process has begun that should be fair from the outset.

    2. Indeed, it's brutal that there's not much in the way of case law on the subject.

      The case of the FBI's leaks vs. Richard Jewell ought to have made it obvious, that the state can do huge damage, before it gets around to starting formal procedures.
      Where was the ACLU on that one?
      Was he just too much of a Deplorable for their taste?

  3. The standard that Horowitz set makes everybody, including himself, in legal jeopardy at any time. That is right out of 1984.

    Rob S

    1. Forget the nightmares envisioned in dystopian fiction. It's the dystopian reality of Lavrentiy Beria's secret police (NKVD) under Stalin, "Show me the man, I'll show you the crime."

      Under the 4th amendment, due process requires that crimes are investigated, not people. The inverse of the Soviet approach.

    2. Not only the 4th amendment, but also, implicitly the 14th, with its reference to equal protection.

      If the FBI *randomly* probes Joe Blow, and refrains from similarly probing John Doe, how does that
      constitute equal protection?

  4. Great post, Mark.

    You are most likely right that Horowitz is not stupid, but he most likely does see the world (and the Morton Salt case) the way his peers and colleagues inside the bubble see it.

    In reading your post, I also had to remind myself that there is a big difference between starting an investigation of a US citizen and 'searching' a US citizen. It seems to me that it is this latter question which will turn out to be especially problematic for the conspirators.

    Maybe they had sufficient predication to open an investigation. But did they have reasonable grounds or probable cause to 'search' Page, Flynn, Manafort and Papadopoulos' telephone and email records (or, as the 4th Amendment puts it, their "persons, houses, papers, and effects")?

    Watching Carter Page on Bongino yesterday ( I was again reminded that FBI/DOJ obtained a warrant to 'search' Carter Page by affirming that he was a Russian foreign agent when in fact he was an FBI/CIA operative. Preposterous!

    But I'm undoubtedly getting ahead of you and suspect you will be coming to this and related issues as you go through the report.

    1. Chris Wray has stated that at minimum two of the FISA warrants were "invalid". So, unlawful searches. Next question: Is it a question of bad judgment or of criminality?

      Reading the sections about FBI NY starting the investigation of Page I was incredulous. Of course Page is a bit of a knucklehead, but since when is that grounds for an investigation? And they immediately went for a FISA, which was such a lot of nonsense that they got turned down. Carter Page a threat to national security? Please, could we have a bit of perspective here?

    2. I hope Durham feels outrage. DoJ has become Dept of Justifying Anything We Do Because We Can And What Are You Going To Do About It?

  5. The money question: was this just Horowitz's erroneous grasp of what predication is required, or was this what DOJ/FBI folks he interviewed told him?

    IOW, where did Horowitz get hold of this bizarre notion that the government can investigate people with no (or arbitrary, predication, set by arbitrary administrative fiat, without running afoul of due process requirements of the Constitution?

    1. IMO, it goes back to the notion that until some action of the State occurs that impinges directly on life, liberty, property, due process isn't in play. It's once the criminal justice process begins--usually with searches, interrogation, arrest--that the case law has focused on legality. But we all know that the reality nowadays is very different. Just look at what was done to Trump with all sorts of leaks, and no investigation even open, according to Comey.

      Here's a bit of a discussion of due process that follows the usual lines, but you'll see that the standard idea follows what I said above:

    2. "we all know that the reality nowadays is very different."

      This is esp. so after 9/11, when the Feds became ever-more hooked on getting people for Process Crimes.

    3. And with public figures, while they can decline an "interview", there's a lot of pressure to submit. And then the perjury trap comes into play. A week or two ago Joe diGenova was saying that he had told Trump: Don't you dare ever agree to an interview, because if you do you WILL be indicted. That spoke volumes.

  6. Do you agree then, as I've read numerous times from others, that this IG report is just a whitewash?

  7. Mucho thanks for investigating Mark. I find it gravely concerning that Horowitz sticks his no-predication-needed flag into such an irrelevant precedent. And then buries such a weak link with the presumed intent that it would never see the light of day. Real slick.

    1. Horowitz is too smart not to realize that the issue is not so simple.

  8. "I regard that as a fundamental violation of our Constitutional guarantee of due process."

    Absolutely. One could be subject to endless investigation/harassment by the government for no reason at all. For Horowitz to deny such a fundamental tenet of our country's founding and constitution, seems to really speak to how desperate he and others within the DoJ are to cover this up.

    ". . . 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."

    I'm sure that's what they're shooting for. At the least, it provides a level of plausible deniability. Sorry, thought we could do whatever the hell we wanted -- our bad. Their lapdog media will go right along with it too. Scary times.

    "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."

    I'm no lawyer, but can definitely appreciate the kind of due diligence Barr and Durham would have to undertake to properly prosecute this conspiracy. I always have.

    Assuming Barr and Durham are true to their stated intentions, I just hope they can accomplish enough ahead of the election to at least somewhat undo the damage done to Trump. Otherwise, the Deep State will have meddled with our 2020 election infinitely beyond anything Russia or our other enemies could ever dream. Roughly half of America still thinks Trump is a Russian spy.

    1. I'm speculating, but I'd be willing to believe that Horowitz--a liberal Dem--tossed that stuff in about predication as a favor to the plotters. All the damning facts are still there, but that was kind of a lifeline--if they can work it.

  9. Context. The Obama Administration seduced the DOJ/FBI/CIA (and other Executive Branch agencies) into becoming de facto criminal enterprises. That is not a trivial thing, and no one (including Barr and Durham) wanted to go there unless it became absolutely necessary (which it has).

    The Deep State (and in particular, Chris Wray) will fight to the death if necessary in order to prevent this reality from becoming public knowledge and unleashing a public reaction that would inevitably lead to major reforms and personnel changes.

    And yet, the full truth will someday be revealed and a whitewash would lead to a major political backlash in addition to destroying any remaining bonds of trust between citizens and these law enforcement institutions. And the reaction won't be just epidemic cynicism, but also a popular redefinition of these agencies as "enemies of the people."

    That is a very dangerous place to go, and Barr does not want that to be his legacy. Comey and Brennan are no less a crook than John Gotti and should be treated accordingly.

    1. It was not just Obama, it was decades upon decades of both Republican and Democrat administrations.

  10. What's after Trump?

    So far, not our republic.

  11. Off topic comment.

    Brennan and Comey are once again tweeting a day or two apart. Yesterday Brennan had a plug for Biden and today Comey solemnly intones that for the first time in his life, he voted for a Democrat. When reading tweet, Kate Smith's God Bless America should be playing in he background.

    1. Heh. And Biden rejected Comey's endorsement--must know something.

  12. Abridge this article -- focusing on the Supreme Court decision -- and submit it to American Thinker.

  13. Reading this, I was struck by the DoJ/FBI rationale for seeking FISA warrants versus convening a grand jury. Even in Fairfax or Montgomery county with a jaded jury pool, at least there would a group of citizens who would be observing the evidence collected and making Prosecuting decisions by majority vote. Where the whole FISA two-step invasion seems like using a chain saw for an ingrown toenail.

    Add to the FISA method fabricated transcripts, threats of bankruptcy, investigative operatives, and attempts to entrap.

    Many things in this saga raise concern, but I keep coming back to the Papadopoulos $10,000 and the idea that had he entered the country with that money, this whole escapade could have wound up much differently.

    The whole thing seems like such a cluster of powerful actors without compassion or conviction for truth and justice.

    Thank you for your efforts; you are providing a public service of great value.

    1. Gray, excellent points. There clearly is a lack of accountability in our criminal justice system. Usually it works fine, but as we've seen it's ripe for abusive exploitation--especially when it interfaces with the national security system. I haven't made any study of the systems in other western countries, most of which are not common law countries, nor how accountable they are.

      Re the $10K, that's very true. Papadopoulos would have been in very big trouble and the pressure would have been much more severe than what he in fact experienced.

      "without compassion or conviction for truth and justice."

  14. do you think that brenner clapper comey mccabe etc would go to the media ahead of an indictment to try and get ahead if it and spin it or is it more likely we'll just wake up one day and see the indictments on the news?

    1. That would be unsurprising. In a sense they've already been doing that with all their public statements.

  15. Very bog news, in its way:
    Schumer's threat to Gorsuch & Kavanaugh, "You have released the whirlwind, and you will pay the price”, is answered by Roberts: "not only inappropriate, but dangerous".
    Tucker is talking about it now.

  16. Sorry for typo: "very BIG", not "bog".

  17. And, Hannity started his show tonite with this Schumer story, and Greg Jarrett argued that Schumer went right up to the line of criminal conduct.

  18. This episode tends to support the theory, that the Left is aiming to agitprop its flock to a fever pitch of hate (of the White Patriarchy), to try to intimidate vs. Barr/ Durham's bids (?) to prosecute D.S. crooks.

  19. Great article. I left a couple of comments in a Twitter thread here:

    But a brief follow-up, as I believe this is especially relevant. Please review this point from Mark Wauck's post first:

    "[T]o 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."

    Highlight this clause from it:

    "starting up investigations just to assure itself on no evidence or suspicion whatsoever that no crime has been committed"

    Notice first what has been left off: "by any given person."

    Now you've got the basis for *intelligence* activities, as conducted against foreign targets - which may be persons, networks, or target sets comprising multiple elements animal, vegetable, or mineral.

    Intelligence doesn't need the predicate of a crime, or even specific evidence of a focused threat. Intelligence works off a theory of national interests and security. It gets away with investigating all kinds of non-criminal things by basing its operations on going after foreign targets, which have no expectation of constitutional protection.

    The FBI, in its counterintelligence and counterespionage roles, is constantly running into the bleed-over -- the Twilight Zone -- between that clean, foreign-targeted use of intel methods, and the restricted use of intel methods against US persons. Targeting foreign actors inevitably involves encountering interactions with US persons.

    But if you're not targeting "a given [US] person" in your probe, then you have a certain amount of latitude. The FBI uses that latitude to the hilt; indeed to the point of exceeding it, even in non-hoax investigations.

    There is a whole set of agency protocols to be observed at the boundary between investigating foreign targets and knowingly tracking the activities of US persons encountered in those investigations.

    But one very big thing is not required, to obtain FISA permission to knowingly track the US person. And it's the very discriminator the 4A was written to require: the predicate of an *actual crime.*

    National security isn't fundamentally about building cases to prosecute defined crimes. It's about detecting threats to interests and tracking and predicting foreign activities. Its systemic profile is different from the 4A-constrained assumptions of law enforcement.

    What I hear in Horowitz's really esoteric defense of predicate-less investigations is an attempt to justify applying the national-security/intel model to the law enforcement model. His argument isn't as bizarre as it seems; it's the same argument we had during the Church Commission deliberations in the 1970s.

    FISA and the FISC were instituted to place restraints and mandates on what Congress ultimately recognized as a national security requirement to sometimes knowingly investigate, surveil, etc US persons - in the absence of a crime or criminal predicate - for national security purposes.

    The dangers of that are clear, in Technicolor, from Spygate. That said, Horowitz is off the rez in his argument anyway, because the first-order problem with DOJ/FBI is that they did NOT observe the restraints and mandates of FISA and their departmental protocols in seeking the FISA authority against Carter Page.

    1. There's lots packed into that thread.

      Yes, since I refererenced the FBI as LE I was speaking of US Persons. The distinction between USPERS and Non-USPERS is, of course, key in both FISA and the AG Guidelines.

      However, I must disagree with your view that FISA doesn't require "the predicate of an *actual crime*" in order for the FBI to target a USPER.

      The FBI can get a FISA on a USPER only if that USPER is an "agent of a foreign power." With that in mind, read:


      specifically 1801(b)(2)(A)&(B).

      (b)(1) deals with persons "other than a US person."

      But (b)(2) deals with "any person"--i.e., it includes USPERs. Note the key phrase, twice repeated:

      "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;"

      A FISA against an USPER requires a criminal predicate.

      Criminality is assumed in the other subsections.

      In my post, however, I was dealing with the question of predication for Crossfire Hurricane as a Full Investigation, not for the FISA that came later (although it was clearly in mind). My contention all along has been that, irrespective of any question of FISA, the FBI lacked the required predication to open CH as a full investigation. Their reason for doing so is very clear--they intended to apply for a FISA ASAP and to do so requires (AG Guidelines) a Full Investigation.

    2. I note your comment:

      "Twilight zone of natsec/CI is perennial problem for fed law enforcement. Foreign tgts of *intel methods* have no constitutional protections; US tgts of L/E methods, incl FBI CI/CE, are supposed to, but breaching is ever-present. FISA intended to address."

      Well put. Criminal predication is part of the supposed protection for USPERs under FISA, as I document above.

    3. I probably didn't express myself well in the original comment.

      I was focused at the time on the thought premise that, with criminal law, there is preexisting (predicate) evidence that a statutory crime has been committed.

      Examples: an apparent murder with a dead body in evidence, a possible crime (abduction, murder) with a missing person, a broken window where merchandise is missing, systematic clandestine transfers of funds, etc.

      With a CI investigation, there need be no such predicate evidence *of the actual crime.* That evidence is what the investigation is intended to obtain. Probable cause for CI, in the case of the US person, is about the US person's associations, given what foreign actors are doing. It's not about certainty that a specific crime has been committed.

      In a standard criminal law case, you and the coroner believe with cause that a murder has been committed. You're looking for "who" now.

      In a CI case, you can't tell if a subject has been acting as a foreign agent - you may not be able to tell if ANYONE has, as regards the specific situation you're investigating - and you want to find out. You have a "who" with relevant associations. But you don't know that there's been a crime. The *crime* you're looking for -- acting as an agent -- necessarily involves the US person (it can't be a US crime if it's a foreigner abroad, not subject to US laws), but your particular US person's agency isn't proven merely by what you do have in evidence (e.g., phone calls or texts with foreigners).

      Those are two different propositions. The latter proposition is fraught with constitutional dangers, precisely because there's no dead body or missing merchandise. You're following the bread crumbs looking for a dead body.

      The principle of 4A fits the "already have the dead body" crime nicely. It's fuzzier for the "this would be a crime if we can find a dead body" predicate.

      In making this point, I am looking at Crossfire Hurricane in general, not just the FISA application.

      And again, my point is not that this is all perfectly fine. My point is that FISA is likely to fail again and again to protect Americans against ill-predicated investigations. That gray area between having the dead body and investigating in order to FIND a dead body is potentially an abyss.

      Andrew McCarthy offers really good reading on this. He has come down multiple times on the point that "collusion," not a statutorily defined crime, seemingly had to be manufactured to justify Crossfire Hurricane. That's precisely because of 1801(b)(2).

      But in terms of seeking evidence, "activities that involve *or may involve* a violation of the criminal statutes" may be interpreted more loosely than McCarthy thinks is right (or more loosely than you or I think is right) - which I believe is Horowitz's ultimate point. His argument exploits the "or may involve" wording. Your point effectively assumes it has a meaning as narrowly definable as "involve."

      McCarthy tacitly assumes that narrower set of premises for the search for the crime. I think that's right, in terms of what ought to be done, and his writing would indicate he expects DOJ/FBI to adhere to that standard.

      But what proves that the standard (which even McCarthy has not presented written down) has been transgressed? It can't be the outcome that no crime was found. That could happen with any CI investigation, because the crime, per se, has not been established beforehand. The purpose of the investigation is to detect and establish it.

      (And again, to circle back to the original point, that's the basic principle of intelligence operations for national security. Vigilance in search of threats, based on defined interests - not the pursuit of detected crimes for punishment and deterrence. CI wears two hats, both intel and L/E. There is inevitably bleed-over in the mindset.)

    4. If, in an intelligence investigation, there is no Constitutional protection of US citizens, then the FISC is superfluous and just an appearance of Constitutionality.

      Mark has gone over this in detail.

      The entite construct is wrong and not Constitutional.

      Yes, spying and internal intelligence is as old as General George Washington in the Revolution, but Washington was at war with a foreign, occupying military.

      Exactly when in the 2000s or since 1978 has the US been in a similar situation?

      Yep, none. Even the Al Qaeda actors, mostly from Saudi Arabia, was not that, as bad as that was. 9-11 occurred due to US intelligence and law enforcement errors and failures in which flags were raised, but ignored or explained away.

      To suggest that spying on innocent US citizens, which Trump was and of which none of the 9-11 highjackers were, gives carte blanche for the FBI to investigate without regard to the Constitution is truly dangerous and that is what has occurred and what IG Horowitz stated emphatically is proper.

      I just love the fact (sarcastically, that is dripping with derision and venom) that there was an uproar over the FBI looking at lists of library books checked out, but what happened with Trump is seen as valid and with "predicate."


    5. During my 30 year career with the FBI, during which I was both an investigator as well as a legal instructer/adviser, I opened numerous investigations, both criminal and CI. I also wrote numerous affidavits in support of warrants of various types as well as obtaining FISA coverage.

      The AG Guidelines for FBI National Security Investigations require the FBI to provide "specific
      and articulable facts that give reason to believe
      that a circumstance described in Part
      II.B.l of these Guidelines exists." Of course that's not "certainty that a specific crime has been committed," but it is recognizable as the equivalent of probable cause. It emphatically does constitute a predicate requirement.

      You state:

      "In a CI case, you can't tell if a subject has been acting as a foreign agent - you may not be able to tell if ANYONE has, as regards the specific situation you're investigating - and you want to find out."

      I can most emphatically assure you based on experience that there ARE "specific and articulable facts that give reason to believe" that a subject is acting as an agent of a foreign power. Without such a showing of predicative facts--specific and articulable--you will not be allowed to open a Full CI Investigation. The violation of those Guidelines is what much of the Durham investigation is about and is why AG Barr and Durham both publicly disputed Horowitz's contention that Crossfire Hurricane was adequately predicated. Which is to say, they dispute that the FBI in opening the case had provided, as required by the AG Guidelines, "specific and articulable facts that give reason to believe" that a subject within the Trump campaign (yet to be identified) was engaged in activity that threatened the national security of the US.

      Having said that, yes, of course it's possible for investigators to be mistaken as to whether, e.g., a given person is in fact an agent of a foreign power. But that says no more than that "specific and articulable facts" may provide "reason to believe" but that "reason to believe" is still not proof.

      That is not entirely different from criminal cases. Finding a dead body doesn't prove murder, but it does offer predicate for an investigation of some sort. I am certainly aware of criminal investigations that appeared to be reasonably predicated but which had to be closed when it became apparent that no crime had actually been committed.

      For the record, while I don't in any way dispute Andy McCarthy's knowledge of criminal law and procedure generally, I don't regard him as a reliable authority on CI matters. The hard and fast distinction he has regularly made between CI and criminal matters does not hold up to serious scrutiny.

    6. FBI Boss: "Hey Pete - we have info Hillary has paid for Russian agitprop to influence the election against Trump. I want you to open up an investigation on her. OK?"

      Pete: "What? We're going to inject the FBI into the Presidential campaign?"

      Boss: "Oh, did I say Hillary? I meant Trump! Open up an investigation on Trump!"

      Pete: "Yes sir! Right away sir!"

    7. TexasDude, for some of the reasons I enumerate in reply to your comment on another post, It wasn't entirely unreasonable for the Framers to think that spying and criminalization of the acts of purely political opponents could be controlled by the political process and the courts. The Alien and Sedition Acts (1798) and the Logan Act (1799) soon offered a warning that their confidence had probably been misplaced.

  20. To continue my thought ...

    Intelligence/counter intelligence of US citizens should have never been given ultra Constitution powers to except in the most extreme and dire circumstances of such invasion of the US by a foreign or even domestic power.

    There is a reason why the CinC has wide latitude in that area per the Constitution. There is nothing ... nothing ... indicating that Trump or anyone within or even peripherally associated with his campaign and presidency was in a direct or actual or attempted overthrow of the US government.


    The frustration is that the vast majority of this was exposed, if not by detail, but by broad strokes, long ago by some heavy lifters like John Solomon and Sundance from CTH and not one thing has been done to date.

    That's the rub, the crawl in one's pant's leg. I suspect things are changing in that regard, but make no mistake, if you think this is just going to go away by mea culpa, you have not learned the lesson of Timothy McVeigh.

    That is not a threat, direct or indirect by me or anyone I know, but an assessment of relatively recent history.

    This is why I am cynical and fear for my children in this post Constitutional country we are in that Trump is trying to jerk us out of.

    This is why I say ...

    After Trump?

    1. One reason, I suppose, that the Framers wrote the Constitution the way they did with regard to the POTUS having plenary National Security powers ...

      Well, let's say three reasons.

      1) The US was a new and weak (relative to European powers) country and very much in need of a strong executive to maintain its independence.

      2) They certainly never envisioned anything remotely like the federal bureaucracy we have today, much less the National Security State and--for most practical purposes--World Empire it has morphed into. That development has had huge ramifications for individual rights vis a vis the State. Think about it: The FBI was founded in 1927, if I recall correctly. DoJ wasn't founded until 1868 and, in its present form, dates really to an FDR executive order in 1933.

      3) Technology.

  21. "This is why I say ...

    After Trump?"

    This is why I say, Donald Trump, Jr.

  22. So, the FBI is to use the most basic of causes to investigate whether counter intel or criminal, probable cause.

    Horowitz thinks otherwise and I'll bet many higher ups in FBI and DOJ agree.

    Yeah, us, not.

  23. I meant, reasonable suspicion.

  24. MW wrote:

    >> 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. <<

    For everyone's amusement, I give the quote from Woody Allen's film "Bananas" an illustration of what it would be like to live under a government that can investigate its citizens at will, w/o the need for pesky things like criminal predication, "just to be sure they aren't committing any crimes":

    >> Commandante Uno: "In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check." <<

    A government that can investigate you on mere suspicion, or just to "make sure you are not committing a crime," is a government that can sniff your underwear whenever and wherever it wants. That includes while you are still wearing them.