Saturday, April 18, 2020

How's This For Predication

Regular readers will recall that, according to the Attorney General Guidelines for the FBI's National Security Investigations, in order to obtain a FISA warrant the FBI must first have a Full Investigation opened. Once again, below is the required predication for opening a Full Investigation. Note that the difference between a Full and a Preliminary Investigation is that in the case of a Full the FBI must be able to cite "specific and articulable facts that give reason to believe that a [described] circumstance ... exists." Meaning, specific and articulable facts that give reason to believe that the circumstance actually exists. In a Preliminary Investigation the standard is that the circumstance may exist. Among the practical differences that arise from this distinction is that in the case of the Full Investigation the FBI is allowed to use more intrusive investigative techniques--specifically, FISA.

Here are the relevant parts of the Guidelines, and I've highlighted the portions that would logically apply in the circumstances that the FBI claimed gave rise to the Crossfire Hurricane Full Investigation:

FBI Headquarters or a field office may initiate a full investigation if there are specific and articulable facts that give reason to believe that a circumstance described in Part II.B.l of these Guidelines exists.  
Part II.B. 
1. Circumstances for Opening an Investigation 
The circumstances on which the initiation of a ... full investigation may be based are: 
a. An individual is ... an international terrorist or an agent of a foreign power.
b. A group or organization is ... a foreign power or an agent of a foreign power,c. ...
d. An individual, group, or organization is ... engaging, or has ... engaged, in activities constituting a threat to the national security (or related preparatory or support activities) for or on behalf of a foreign power.
e. A crime involved in or related to a threat to the national security has ... occurred, is ... occurring, or will ... occur. 
f. An individual, group, or organization is ... the target of a recruitment or infiltration effort by an international terrorist, foreign power, or agent of a foreign power under circumstances related to a threat to the national security. 
g. An individual, group, organization, entity, information, property, or activity is ... a target of international terrorism, espionage, foreign computer intrusion, or other threat to the national security. 

For a long time I was absolutely convinced that Crossfire Hurricane could only have been opened based on the Steele dossier's claims with regard to Carter Page. I assumed that the FBI had had access to the early "reports" from the dossier, in which Steele stated that Page was coordinating with Paul Manafort on behalf of the Trump campaign with high level Russian officials to obtain collusive electoral assistance from the Russians. The FBI claimed for a long time that it hadn't had that access, but that now appears to be yet another, um, misstatement:

Undercover Huber
Source #1 (Steele) “reported the information contained herein [the FISA warrant application] to the FBI over the course of several meetings with the FBI from...June 2016 to August 2016”.
I thought the FBI only got the “dossier” allegations mid-September?
8:19 PM · Apr 16, 2020

Nevertheless, it appears to be fact that the FBI really did open Crossfire Hurricane as a Full Investigation based solely on predication relating to George Papadopoulos--not Carter Page. However, we know from disgraced former FBI Director James Comey that Crossfire Hurricane was an "enterprise" investigation--in other words, it was claimed that there was an "enterprise" or "group in fact" of individuals engaged in the activity to be investigated: collusion with Russia that constituted a threat to the national security.

As part of the FISA application against Carter Page the FBI had to provide a brief summary of the predication for that Full Investigation. Undercover Huber has drawn attention to that "predication". Over the last couple of days I've been reviewing the claimed probable cause as presented in the FISA application. Here is my version, with some redactions replaced by identities as we now know them. It's more extensive than UCH's version:

In or about July 2016, the Australian government provided information to a [U.S. Government official] regarding efforts made by the Russian Government to influence the 2016 U.S. Presidential election. Specifically, according to this information, during a meeting in or about April 2016 between an Australian official [Alexander Downer] and George Papadopoulos, [REDACTED], Papadopoulos suggested that Donald Trump's campaign had received some kind of suggestion from Russia that Russia could assist with the anonymous release of information during the campaign that would be damaging to Hillary Clinton. It was unclear whether Papadopoulos or the Russians were referring to material acquired publicly or through other means. It was also unclear from this reporting how Donald Trump's campaign reacted to the alleged Russian offer. Nevertheless, as discussed below, the FBI believes that election influence efforts are being coordinated between the RIS and Page, and possibly others.
The FBI is investigating several individuals associated with Donald Trump's campaign, including Papadopoulos and Page, to determine the extent to which such individuals are engaged in unlawful activities in support of Russia's efforts to undermine and influence the 2016 U.S. Presidential election. The FBI believes that Page is coordinating election influence efforts with the Russian Government. As discussed below, Page has established relationships with Russian Government officials, including Russian intelligence officers, and has been identified by source reporting as an intermediary with Russian leadership in "a well developed conspiracy of co-operation" to influence the 2016 U.S. Presidential election.

So, the Guidelines require specific and articulable facts, and the FBI provides these specific facts (which, however, we now know are inventions and not facts) which appear to form the core of the predication that ultimately led to the Mueller Witchhunt and the fake impeachment of President Trump:

Papadopoulos suggested that Donald Trump's campaign had received some kind of suggestion from Russia that Russia could assist with the anonymous release of information during the campaign that would be damaging to Hillary Clinton. It was unclear whether Papadopoulos or the Russians were referring to material acquired publicly or through other means. It was also unclear from this reporting how Donald Trump's campaign reacted to the alleged Russian offer.

I submit that, while "unclear" "suggestions" "of some kind" are specific facts, they do NOT "give reason to believe" that the circumstances as described actually exist, nor do they provide predication for undertaking an investigation that was targeting a candidate for the presidency. Such suggestions can only give rise to a suspicion that such circumstances may exist--which logically could only lead to a Preliminary Investigation. IOW, no FISA.

In fact, of course, most of the assertions contained in the two paragraphs from the FISA application are either flat untrue or extemely misleading. For example, we know that the basis for the Michael Flynn investigation--Flynn is one of the individuals being investigated for "unlawful activities in support of Russia's efforts to undermine and influence the 2016 U.S. Presidential election"--were untrue. Again, the claim that Page was the coordinator of collusion with Russia is based on untruths. Also, the claim that Page "has established relationships with Russian Government officials, including Russian intelligence officers" implies that Page was in a clandestine intelligence relationship with those Russians--which we, and the FBI, know was not the case.

All of this leads to an interesting situation. Here we have the FBI initiating an unprecedented Full Investigation that is clearly targeting a presidential candidate as an agent of a foreign power--that's the reality behind the legalese--yet instead of seeking a FISA on the individual (Papadopoulos) whose claimed statements led to opening that investigation, the FBI instead turns around and targets a FISA against a different individual (Page).

That logically leads to the question: Why was Crossfire Hurricane not predicated on Page's past supposed "relationships" with Russian intelligence officers or his supposed "secret meetings" in Moscow as the Trump campaign's collusion coordinator? The most logical explanation I can offer is this: The FBI did not want to draw attention to the Steele dossier as the basis for the investigation. If questions about the underlying investigation--not just the FISA--should ever arise, they would be able to deny that the investigation was predicated on Steele's bogus information. They would be able to claim that they had instead relied on information provided by a high official of a close allied nation: Australia. Much better than basing it all on a dodgy character like Steele. Too bad the Downer narrative turned out to be another in a long lines of hoaxes.

This is, in fact, what has happened. The FBI has denied that the predication--which is readily seen, now, to be grossly inadequate--was based on the Steele dossier. In addition, to bolster that defensive position, the Intelligence Community Assessment (ICA), which claimed as the Intel Community's "assessment" that Russia was actively "meddling" in the election, was invented to support the basic legitimacy of Crossfire Hurricane.

And that explains why Barr and Durham think the ICA is so important.


  1. The FBI standard for a full investigation comports with Probable Cause in which "evidence of a crime will be found."

    Reasonable Suspicion is the FBI's Preliminary Investigation of the belief that crime is "afoot."

    Problem is, in with normal criminal law and with the FBI standard, is the reasonable standard and the belief standard.

    Was is reasonable to believe Trump or anyone within or associated with his campaign was a Russian spy?

    To make matters worse, from a 2006 CRS report requested by the former SSCI General Counsel Michael Davidson states that "[p]robable cause is bit different under FISA. Ordinarily, probable cause speaks to the probability of the existence of a certain fact, e.g., probable cause to believe a crime has been, is, or is about to be committed and that the search will result in the discovery of evidence or contraband. FISA authorizes issuance of a surveillance or search order predicated upon the probability of a possibility; the probability to believe that the foreign target of the order may engage in spying, or the probability to believe that the American target of the order may engage in criminal spying activities, 50 U.S.C. 1805(a)(3)(A), 1824(a)(3)(A), 1801(b)(1)(B), (b)(2)(A).3"

    Even with all that, the report notes that with FISA that "... the predicate not the standard that is changed. The probable cause standard is the same in FISA as in a criminal context: would a prudent individual believe that a fact is probably true. It is the focus that is different. Would a prudent individual believe that spying may occur."

    LEOs running loose on getting RS and PC gets many cases tossed, reputations destroyed, and jail time.

    The FBI ran loose.

    1. I didn't read the whole report. I'm not sure what they're talking about, "a probability of a possibility." The relevant section of FISA as it now is, is 1805(a)(2)(A), which states quite plainly without talk of possibilities:

      the judge shall enter an ex parte order as requested ... if he finds that—
      (2)on the basis of the facts submitted by the applicant there is probable cause to believe that—
      (A)the target of the electronic surveillance is a foreign power or an agent of a foreign power

      The case they're talking about was a decision by the FISA Court of Review. The opinion is long, but there's no use of the word "possibility" at all. While I think I understand where the report is coming from, I think it's misguided and unnecessarily confusing. Here's the opinion and a shorter Wikipedia summary:

      This is a 2002 case. What it's really about is the Patriot Act and in particular about what we called "the Wall," meaning, the supposed necessity to maintain a "wall" between criminal investigators and counterintel investigators using FISA. The court held that the two groups can cooperate basically seamlessly.

      While I think that's logical, it may be behind some of the abuses we see in the Russia Hoax. I don't have the inside knowledge to offer an opinion, but I see it as a possibility. I say that because I believe the criminal violations the FBI/DoJ hoped to "trump" up were not traditional NatSec crim violations but instead were "fraud" based ones. Not coincidentally fraud was Weissmann's real area of expertise.

    2. Mark, you are the expert on this not me. My LEO experience is municpal cop.

      I was just trying to show how they may have ran a loose interpretation based on prior legal opinion from CRS.

      Cops have been thrown in jail for less than this.

    3. This is all very complicated. The CRS opinion/report is a mess. Let me say this first: The problem wasn't a loose interpretation--on the surface, everything appears to be, more or less, "by the book," as Obama would say. The real problem was misrepresenting and even lying about the facts.

      Having said that, here's what most people would miss in reading CRS. You'll notice that they cite--in addition to the case from 2002--a 1972 SCOTUS case that is cited for the something like the view that Probable Cause isn't the standard for national security wiretaps (what they were back then).

      That, in fact, IS what the law was back then and, if you go by SCOTUS cases, arguably still is. That's why I keep telling people who want to "repeal FISA" that they don't know what they're asking for. If that were to happen we'd go back to the constitutional view that the POTUS is free to spy for national security reasons, and that would be interpreted pretty liberally.

      Six years after that case, FISA was passed and revolutionized national security wiretaps. What FISA was intended to do--for better or worse--was to bring NatSec law into line with criminal law standards. So, if you read FISA, you'll find familiar concepts: you need probable cause and (for a USPER) you need a criminal violation. The "secret" FISC was introduced to limit the disclosure of NatSec info.

      However, because Congress felt it was in uncharted waters and was afraid that FISA would be held to be an unconstitutional infringement on the POTUS' NatSec powers, they included an emergency provision, hoping that the law would never be challenged all the way to the SCOTUS--which it hasn't been.

      What changed things again was 9/11. Dubya began invoking the emergency powers of FISA broadly. Congress also passed the Patriot Act which allowed for the full use of the new technology. Also FISA was allowed to be used in conjunction with criminal investigations.

      This is where we stand now, except that the "all your data" approach of the Patriot Act has temporarily lapsed. My view is that FISA is unconstitutional, but I'm nevertheless not sure we should go back to pre-FISA days because of the vast advances in spying technology.

      The SCOTUS is wrestling with this, possibly looking for a good case.

    4. " ... misrepresenting and even lying about the facts."

      Sorry, that was part of what I meant. I was not clear.

      Illegally entering a building and then manufacturing PC afterwards. Making a traffic stop with no violation and then getting a felony drug arrest. Planting evidence, putting words in the mouths of witnesses and suspects in a sworn affidavit, committing perjury, suborning perjury, witness tampering, etc.

      Boil all this down, this is what the DOJ and FBI did with the CIA.

    5. Right. Similar stuff, just in the intel world.

  2. Do we trust John Solomon?

    FBI Corruption: @jsolomonReports says indictments may be coming this week in the FBI’s corrupt handling of the sham Russia collusion investigation. #AmericaFirst #KAG2020 #Dobbs

    — Lou Dobbs (@LouDobbs) April 17, 2020

    1. Trust him? I believe he's honest, I believe he has good sources. I don't particularly believe that his sources are good enough to tell him what Barr has in mind. Maybe I'm wrong. I watched that last night. He says perhaps a handful of indictments but a major info dump. I can see that. I can also see a bigger conspiracy trial. OTOH, if Barr can go after the major players maybe he can get what he's looking to accomplish. But I'd be surprised if Solomon's sources know that.

      Maybe I'm wrong.

    2. I watched the Dobb's interview with Solomon, last night -- it's not what Solomon said.

      He did not say indictments may be coming this week. It was more along the lines of "based on things that we have learned this week, I believe indictments may be coming" (paraphrased from memory.)

      He goes on to say he does not expect dozens but says there could be "several."

      But he never said anything about indictments "this week."

    3. I didn’t watch. Could be wishful thinking on Dobbs’s part?

      I remember Barr’s “late spring, early summer” remark. Doesn’t match this...

    4. My personal opinion: Dobb's is getting a bit long in the tooth, and either didn't understand what Solomon was saying (it wasn't the most coherently composed sentence in the history of journalism, but that's live TV for you.)

      So, take your pick: Dobb's heard what he wanted to hear, misheard what Solomon said, or didn't understand it.

    5. Dobbs misheard or misinterpreted.

      Video of 4/17 Lou Dobbs program. At around the 23.40 mark, John Solomon finally gets a chance to talk. (!) He did not say what Dobbs later tweeted that he had said.
      Dobbs is a terrible listener; a ranter and an interrupter. He got this wrong.

      (Mark, this may show up on another thread. Didn’t realize I had two threads open. Tried to delete it… Sorry)

    6. Wonder if Dobbs learned how to interview from Hannity, or Hannity learned from him, or they both learned from a third person. BOTH are terrible for talking over guests, interrupting them, and not listening to what they are saying!


  3. Dobbs misheard or misinterpreted.

    Video of 4/17 Lou Dobbs program. At around the 23.40 mark, John Solomon finally gets a chance to talk. (!) He did not say what Dobbs later tweeted that he had said.
    Dobbs is a terrible listener; a ranter and an interrupter. He got this wrong.

  4. Excellent thread by UCH that gets into the predication issue:

    >> <<

    He points out the gross logical inconsistency in the FBI explanation that they believed the Downer tip about PapaD and a "suggestion" that Russians had dirt on Hillary and wanted to share.

    This is the excuse for opening CH investigation, and then they almost immediately opened individual investigation on 4 Trump campaign associates because they had "Russian Connections," which would fit with the gossip Downer passed along.

    The problem, as UCH points out, is that Michael Caputo had much strong ties to Russia than any of the other four they investigated, and was working for the campaign during the interval between April 2016 when PapaD supposedly was told about "Russian dirt," and while the DNC emails were hacked.

    IF yuo accept the FBI explanation as to why the investigated the four Trump associates, then Caputo should have been an even bigger target for investigation. But they never opened an investigation on him.

    UCH points out the likely reason: Caputo had already left the campaign by August 2016, while PapaD, Carter Page, Michael Flynn, and Manafort were all still involved.

    IOW, the campaign was the real target all along; Russian Collusion was just the pretext to spy on them, and try to frame Trump for being Putin's bitch.

    1. UCH is off base. If you accept what he's saying you have to ignore all the evidence that the Russia Hoax was in the cards as far back as 2015--and there's lots of evidence of investigative activity presupposing the Russia Hoax well before the FBI supposedly first learned about Papadopoulos.

      Nor is the failure to bring Caputo into the Russia any big mystery (although Caputo WAS approached by a Russian FBI asset, Hank Greenberg, as early as May). Caputo (on whose radio show I did an appearance) was the Trump campaign's Director of Communications for New York--he lived in Buffalo. The Russia Hoax team was looking for people tied to foreign policy, which is why they immediately perked up in March when the foreign policy advisers were named. They already had Flynn in the works. Perhaps they put the media up to pestering Trump to name FP advisers. I still wonder how Manafort--a long time target of the Russia Hoax perps--was foisted onto Trump.

      Anyway, Caputo wasn't connected to the FP group so there wasn't the logical connection they needed--and time was short. Nor did it have anything to do with Caputo leaving the campaign in August. Page left shortly thereafter and they still got a FISA on him--despite not being in the campaign, being dissed by the campaign, and making all sorts of public denials and being a CIA asset.