Monday, August 24, 2020

The FISA Double Standard

I refer, of course, to Chuck Ross' fine article, FBI Agents Pushed For A FISA To Investigate Foreign Government Targeting Hillary Clinton. Ross is working off Lindsey Graham's recent revelation of internal FBI debates that concerned a FISA in an investigation that would have targeted an agent of a foreign government that was seeking to influence the 2016 election. That foreign government was reported--as early as early 2015--to be targeting the Hillary campaign even before its formal announcement.

It's impossible to be certain of the identities of the agent or the foreign government. However, Senator Graham maintains that this incident illustrates that the FBI had a double standard for seeking FISAs in the context of the 2016 electin: one standard when the FISA might impact Hillary, and a very different standard when the FISA was pretty much guaranteed to impact Trump--since the so-called 'probable cause' in the case of the Carter Page FISA was known by the FBI to have originated from the Hillary campaign. In such circumstances, the Page FISA and its rationale as regards the Trump campaign was bound to be leaked--as indeed it was.

There are some key differences in the two situations that we should be clear about. Most importantly, the agent of the foreign government targeting the Hillary campaign was not a US Person. Here's the key sentence from one of the internal FBI docs. I'll break the sentence up into bullet points:

  • While superficially connected to political candidates, 
  • the investigation targets a NONUSPER involved in illegal activity; 
  • it does not target the candidate(s), 
  • and there is no evidence the candidate is even aware of the potential targeting. 

As the FBI Field Office that was pushing for the FISA pointed out, this FISA should have been a slam dunk both from a simple investigative as well as a national security standpoint--unlike the Carter Page FISA. The proposed Hillary related FISA would not have targeted a US Person, so there would have been no issues about constitutional rights. That automatically makes it much easier to obtain the FISA. Further, the Non US Person was already known to be involved in illegal activity. Unlike in the case of a US Person, there is no requirement for criminality nexus in the case of a Non US Person, but it certainly enhances the FISA application in the eyes of the FISC judge--a foreign agent violating our laws while interfering in our presidential politics! What should be of more concern to the FBI, our lead counterintelligence agency?

What would be the sticking point, then? Why would DoJ and the top levels at FBIHQ have been chary about pushing this FISA application?

The sticking point was probably that, while the eminently justifiable FISA would not have targeted Hillary, it might nevertheless have picked Hillary up--either in direct contact with the foreign agent or, perhaps more likely, in contact through her campaign operatives. What would the FBI do in that event? Should the FBI be acting as a surreptitious supervisor of a presidential election, or should it instead adopt a more distanced approach by conducting a defensive briefing to warn Hillary off any illegalities involving foreign agents?

The upshot of the internal FBI debate was that FBIHQ--meaning, Jim Comey, who was fully briefed in on the matter--opted for conducting the defensive briefing and eschewed seeking the FISA. In doing so, the FBI laudably avoided getting involved (at that point--haha!) in a presidential election. However, it also closed the door on its best opportunity (as the FBI Field Office pointed out) to obtain highly important intelligence concerning foreign governments targeting our own government at the highest levels.

Another aspect is that by providing the Hillary campaign with a defensive briefing they also, in effect, provided Hillary with a 'heads up'. Hillary was put on notice on how to avoid potential scandal--if she should somehow have been receptive to accepting foreign influence in the form of "campaign contributions ... in a form outside established parameters for such donations." Given that the activities of the Clinton Foundation strongly suggested Hillary's inclination to accept such influence and to act in accordance with the desires of the donors, the American people were the big losers from the defensive briefing: Their lead CI agency missed out on possibly crucial intelligence, and the public missed out on possibly gaining important insights into the character (or lack thereof) of the favored presidential candidate.

By contrast, the Carter Page FISA--which was pushed very aggressively by FBIHQ, to the extent of ultimately committing a serious fraud on the FISC--was a much more difficult scheme to accomplish. Carter Page was a US Person, and a known cooperator with the US Intelligence and law enforcement agencies against Russia. The required element in his case of a possible criminal violation ended up involving a highly questionable use of the Foreign Agents Registration Act. Crucially, the FISA was bound to--and, in fact was intended to--intrude into the Trump campaign. Finally, we know that those pushing the Carter Page FISA harbored extreme anti-Trump bias and had accepted highly questionable--now known to be fraudulent--'probable cause' from the Hillary campaign itself!

It's possible to argue that Comey's FBI took the proper course with regard to the Hillary campaign in this instance, by conducting the defensive briefing and avoiding involvement in presidential politics. However, it's impossible to avoid Senator Graham's conclusion--in light of the FBI's later approach toward the Trump campaign--that the decisions with regard to the Carter Page FISA were influenced by improper motives. Once again, we see the influence of the Hillary campaign generated Steele "dossier". The only possible reason to deny Trump the defensive briefing that was afforded Hillary would have been a claim that the Steele "dossier"--generated by the Hillary campaign and compiled (supposedly) by a paid foreign operative with a strong anti-Trump bias--could be trusted without verification.

The other thing that should jump out, is that disgraced former FBI Director Jim Comey was very much involved in the situation involving Hillary--even before her candidacy was formally announced. That being the case, are we really to believe that Comey had no involvement--or only a peripheral involvement--with the Carter Page FISA that happened with the presidential campaign in full swing, and which was a direct intrusion into a presidential campaign? I think not. And that makes one wonder about the timing of Senator Graham's release of new FBI documents.


  1. Hi Mark,
    Three short things to comment on.
    1. I cant decipher your line in FISA Double Standard story
    "The other thing that should jump out, is that disgraced former FBI Director Jim Comey was very much involved in the situation involving Hillary--even before he candidacy was formally announced."
    2. On the SD stance re: Wolfe leak. You correctly state DOJ needed beyond a reasonable doubt to charge higher crime but offer no thoughts on what could help establish that. The phone carrier would have the exact byte counts of each of those texts, DOJ knows the phone model, camera resolution and target document. Could those not be related to the document since it is likely in specific page by page order? Your experience here as to other possible forensic methods would be valuable input. I think you and SWC are not wrong but being a bit hard on SD. I read all 3 of you daily and value the insights and point of view you each bring to the weighty issues of our times. All of you are patriots.
    3.Last thing. Expanding vocabulary via your blog. Word of the day is chary. Thanks !

    1. Re #1, I've cleaned up and corrected the wording a bit. Perhaps that will make it more clear.

      Re #2, it's a legit point. I've said I have a moral certitude in that regard.

    2. I should add that the reason I'm "hard" on SD is because he's "hard" on Barr with no reasons to back up his really rather slanderous accusations of corruption. It's pure conspiracy theory.

    3. Mr Wauck
      A follow-up on Enduringoak’s comments regarding SD. I also read CTH, SWC, and others but hold off on a final evaluation until reading your comments on what they’ve covered, you bring in a reasoned analysis based on facts and law while the others bring emotion in to varying degrees. SD/CTH has become more emotion driven, probably due to the double standard such as covered here. SD’s view is likely that one side pursues its goals ignoring the Constitution & laws that safeguard their opponents while expecting/demanding for themselves the full protection of the safeguards of the Constitution and laws. AG Barr appears to be following the Constitution and laws but we see little - as Don Surber says “No excitement with an indictment.” - and the GOPe history is to talk a good game but do nothing and lose with pride. SD probably connects AG Barr to the GOPe as little has come out so the question comes up is AG Barr a true law & order Constitutionalist or is he another GOPe (AG Barr's approach can be applied to both). With the election coming up soon SD likely expects nothing to be done with the excuse being that bringing indictments would interfere with the election, or indictments need to be delayed while they try to pin down every possible item rather than going with what can be proved beyond a reasonable doubt as you cover was done for Wolfe and Clinesmith.
      There is a saying that the Constitution isn’t a suicide pact, and to him he probably sees the GOPe using it as such; he is now ready to fight fire with fire. The Golden Rule only works if the other person/side, when they don’t then you probably have to use the Golden Rule to say that the other person/side wants to be treated as they treat you and reciprocate accordingly. We don’t want to go there, and with the GOPe history you end up with the frustration you’re seeing in SD from the continued waiting. SD doesn’t see AG Barr as distinct from the GOPe, you do and the rest of us hope he is what you see him to be.

  2. Given he corruption by Wolfe and Clinesmith and all that you have detailed, why have prosecutions been so limited? In the Wolfe case, the charges were reduced an no jail time, do you think an agent or a prosecutor would have asked how the 82 pages were transmitted? How is it that that has NOT been made public.

  3. I think the reason that sundance has been so tough on AG Barr and USAttorney Durham is that there have been no indictments and both Wolfe and Clinesmith have gotten off lightly despite obviously overwhelming evidence of guilt.

    1. Nope. Not gonna indulge your bent for conspiracy theory sans facts.

  4. Slate mentioned Wolfe was using the encrypted app Signal for communication see with his girlfriend reporter.

    >how the 82 pages were transmitted

    1. "the closest piece of information to metadata that the Signal server stores is the last time each user connected to the server, and the precision of this information is reduced to the day, rather than the hour, minute, and second"

  5. Criminal investigators typically develop a "theory of the crime" early on in order to help guide their investigative efforts. And it's not uncommon to use the Occam's Razor dictum in developing the theory of the crime. The reason for this is simply that it tends to work well in the practical implementation of criminal investigation.

    Now apply this to the FISA double standard mentioned in this post. Well. one theory could be that Jim Comey is, and was, a dirty cop who abused his position as FBI director to implement a criminal agenda on behalf of his patrons. IOW, Comey may have intentionally subverted the 2015 Hillary related investigation because it could have put her (or her campaign) at risk of exposure for corruption (pay to play). Conversely, Comey may have pushed the Russia Hoax investigation against Trump because he overtly wanted to influence the election in such a way as to prevent Trump's election. Both of these acts would not really be a double standard per se; but rather overt and volitional criminal acts by an arrogant and supremely self-confident criminal mastermind.

    1. The real point in all this, if your a prosecutor like Durham, is the use you could put this to if you're prosecuting someone like Comey and they take the stand. It could seriously undermine their basic credibility.

    2. A theory of the crime based on what is known is fine, provided one does not resist evidence pointing in a direction contrary to one's theory or attempt to force it to fit the theory — confirmation bias, preconceived conclusion syndrome, etc.

      Based on what we do know, for Comey, who was sitting at the top of the "7th-floor-involved" pile looking down on it all to now say "Who? Me? Golly, I can't imagine being a target" is laughable. Same goes for Brennan, despite whatever spin his spokesliar put out. The Russia hoax didn't self-generate and self-direct. CIA emails didn't alter themselves. FISA applications didn't falsify themselves. Steele's garbage dossier didn't write itself.

      Or are they all saying they're abject imbeciles?

  6. My sources say it was a man who worked for Dewars who wanted to gift Hillary some booze.

    Rob S