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.