UPDATED: FISC Order In View Of OIG FISA Report Findings

Today the Foreign Intelligence Surveillance Court (FISC) issued a rare public order in response to OIG's FISA report which detailed FBI bad behavior in submitting FISA applications with regard to Carter Page. The actual title of the FISC order is:

IN RE ACCURACY CONCERNS REGARDING FBI MATTERS SUBMITTED TO THE FISC

The order begins with a brief explanation of FISC procedures, as established by FISA. Follow the link if you get off on that kind of stuff.

Likely the most interesting aspect of the order comes in the concluding paragraphs, in which the FISC addresses the specific topic of disgraced FBI attorney Kevin Clinesmith's bad, i.e., criminal, behavior. The FISC, in essence, states that any application that Clinesmith worked on must now be regarded as suspect and notes that on December 5, 2019, the FISC ordered the FBI to "provide certain information" regarding applications handled by Clinesmith. The FISC intends to publish that December 5 order and gives the FBI until December 20 to submit suggested redactions--while noting that

In view of the information released to the public in the OIG Report, the Court expects that such review will entail minimal if any redactions.

Below are the concluding paragraphs that also contains the expected highminded language about the FBI doing things to make sure this never happens again and telling the FISC what those things are. IMO, the relevant Congressional committees should invite CJ John Roberts to offer any views he may have on the subject of FISA generally and the FISC in particular. Since the FISC is a creation of Congress it's hard to see what Roberts could actually do with this mess--short of declaring the FISC unconstitutional and refusing to appoint judges to participate in it.

What Trump learned from Watergate

Several commenters, including Joe, recommended over the last few days an excellent article by Geoff Shepard:

Nixon’s Resignation Reconsidered

New Watergate evidence suggests that presidential resignation is a mistake — then and now.

I'm half way through it, but I've previously read basically identical accounts by Shepard. It's an eye opener that everyone needs to read.

Today Don Surber riffs off Shepard's article in What Trump learned from Watergate. I like Surber's choice of quotes from Shepard--it's a great tease to get people to read Shepard:

"There is documented proof of a series of secret meetings between Chief Judge John Sirica and Watergate prosecutors. I don’t know which is the bigger surprise: that they were secretly meeting to resolve issues in advance of trial or that they were documenting their agreements in memos to their files. The mother lode of these documents, improperly removed in 1974 when Jaworski left office, first came to light in 2013 in response to my FOIA requests. 

"At one point, Cox became so worried about the sustainability of Judge Sirica’s one-sided rulings in favor of the prosecutors that he feared their conviction verdicts would be overturned on appeal. He secretly approached Chief Appellate Judge David Bazelon to explain how the judicial panels could be stacked to maintain Bazelon’s slim one-vote liberal majority. Sure enough, each of the 12 appeals from Sirica’s criminal trials was heard by the full nine-judge appellate court, sitting en banc — a circumstance unprecedented in any federal appellate court anywhere in the country, before or since." 

Archibald Cox in retrospect made Jimmy the Weasel Comey look honest. 

The deep state won.

However, Surber goes on to make what could be an important point in his conclusion:

Donald Trump prepared for impeachment all along. He kept his nose clean and gave Democrats plenty of room [sic: rope?] to hang themselves with the Mueller Report. And they did. They had one shot at President Trump and Russian collusion was the shot they decided to take.

...

President Trump learned from Nixon's firing of Cox, which created a backlash. He kept Mueller, which avoided an obstruction of justice claim. 

The president has needled and ridiculed the hapless Democrats, but he also has given them everything they asked for. When they objected to his July 25 phone call to Ukraine, President Trump released the transcript. There will be no nonsense about the cover-up being worse than the crime on his watch. 

That transcript should have ended the controversy, but Adam Schiff is insane, Jerry Nadler is a fool, and the press is corrupt. Down the rabbit hole of impeachment they dove. 

Public sentiment, the law, and the facts are in President Donald John Trump's favor. He learned from Nixon. it is not paranoia when they really are out to kill you.

In fairness, and to give credit where it's due, Trump has had some excellent lawyers--after a few initial miscues. And he's followed their advice.

Read it all. It's excellent.

IMPORTANT UPDATE: Need Something To Worry About?

Byron York has it for you: Impeachment moves to Senate. Get ready for a scramble — and a January surprise.

The last time Mitch McConnell checked in--last week on Hannity--he sounded confident that GOP unity would hold and that he might gain one or two Dem senators. My view is that the scenario York paints is unlikely simply because it could spell political suicide for any turncoat Republicans. Even for those not facing an election, their betrayal would not be forgotten. I suspect the lessons of the Kavanaugh nomination have been learned. McConnell will be in overall charge.

Here's York's bottom line version:

Schumer is not trying to convince all 53 Senate Republicans to support his proposal. He just needs four. There are 47 Democrats in the Senate. If Schumer can persuade four GOP senators to join Democrats, they'll have a majority of 51 and can force the calling of new witnesses. Of course, Schumer is counting on Democrats voting as a bloc against the president, which is probably a good bet.

If Schumer gets what he wants, it seems hard to believe that will be the end of it. The request for more witnesses appears designed to lead not to closure but to reopening the case against Trump. In this way, if Democrats can introduce new testimony in the trial, they can say the new testimony has raised new questions that will require new investigation. And new investigation will require more new witnesses, which will surely lead to more new questions, which ... 

Call it the Brett Kavanaugh model of impeachment. During the Supreme Court justice's confirmation process, a hearing had already been held, and Kavanaugh appeared on the way to joining the court. Then, up popped a new allegation, the Christine Blasey Ford story, and Democrats demanded the case be reopened, witnesses be interviewed, evidence be gathered, and time be taken for more investigation. Republicans acceded to those demands, and the Kavanaugh confirmation careened off course for a while before GOP lawmakers finally got it back on track. 

.... 

For example: On Monday, lawyers for the House Judiciary Committee told a federal court it is essential that grand jury materials from special counsel Robert Mueller's Trump-Russia investigation be given to House investigators. Why? Because it might help the impeachment effort. "If the House approves articles of impeachment," the lawyers argued, "relevant grand-jury material that the committee obtains in this litigation could be used during the subsequent Senate proceedings." 

If the Judiciary Committee receives the information, there is little doubt its leaders will work with Senate Democrats to create the impression that there is new evidence so compelling that it absolutely must be included in the impeachment trial. And if Republicans disagree, what are they trying to hide?

Indeed, Schumer and his colleagues have prepared the way to characterize any move to limit the trial's scope as an effort to hide wrongdoing from the American people. "To engage in a trial without the facts coming out is to engage in a cover-up," he said Monday. 

The bottom line is, Republicans should not believe for one minute that the campaign to remove the president will rely only on the case Democrats have built in the House. Schumer and other party leaders will scramble for new information to throw at the president, and at Republicans, until it is over. The GOP, and the White House, need to be ready.

UPDATE: Looks like Mitch gets it. And by "gets it" I mean that he's internalized the lessons of the Kavanaugh confirmation:

Senate Mitch McConnell dismisses Sen. Chuck Schumer's proposal to call live witnesses: "Those who have been eagerly hoping for impeachment are starting to scramble." https://t.co/gZeA2x1TQ9 pic.twitter.com/HrwZFbhn7E

— ABC News Politics (@ABCPolitics) December 17, 2019

UPDATED: Briefly Noted: The Flynn Case

If notable commentary on the Flynn case developments shows up today I'll include it here. For now I'll stick with what was said in Judge Rejects Flynn Motions.

Margot Cleveland has an informative, relatively brief, analysis of the ruling. Helpfully, she goes over what Flynn's options are going forward. She addresses a similar point to the one commenter D raised at the linked post. As I pointed out, for Flynn to go public might probably simply enrage the judge for sentencing purposes. Similarly, Cleveland writes:

Now Flynn must decide whether to proceed with sentencing or to attempt to withdraw his guilty plea or challenge the effectiveness of his first trial counsel, or some combination of these. In weighing his options, Flynn will likely recall his last sentencing hearing before Judge Sullivan and the federal judge’s reaction to hints that Flynn was not accepting responsibility for the offense—something that affects sentencing.

Also, given Judge Sullivan’s prior comments, if Flynn proceeds to sentencing now, he is likely to see some jail time. Of course, President Trump might then pardon Flynn, but with the 2020 election forthcoming, political calculations might squelch that hope.

Read it all. Overall she's pretty much on the same page as I am, but she lays emphasis on the fact that Sullivan appears to have approached the motion with a closed mind. My own expressed incomprehension at some of his statements point in the same direction. Cleveland quotes Sidney Powell regarding what I described as Sullivan's "over the top" claim of “Ethical Concerns with Mr. Flynn’s Brief”:

Powell said in a statement that “the plagiarism accusation makes no sense,” adding that she “relied on briefing in one of my own cases and both cited and linked the brief written primarily by my brilliant friend Lucas Walker.” “That’s how Judge Sullivan knew the source for the material,” Powell explained.

Here's the link:

Judge In Michael Flynn Case Decides To Ignore Mounting Evidence Of Prosecutorial Abuse

Two passages in Judge Emmet Sullivan’s decision, separated by scores of pages in the tedious 99-page opinion, make clear that the outcome was a forgone conclusion.

UPDATE 1: Ouch!

This is embarrassing.

Judge Sullivan's accusation that a "plagiarized brief violated" the rule against "dishonesty, fraud, deceit, or misrepresentation" is... fraudulent.

The case he cites has to do with a lawyer demanding payment for a brief he didn't write. [Fraud]

🤦‍♂️ pic.twitter.com/hrUOpzWeGX

— Techno Fog (@Techno_Fog) December 17, 2019

UPDATE 2: Imagine what Jonathan Turley might have written about Sullivan if he'd been aware of the full facts regarding  the "plagiarism" claim as outline above by Techno Fog. Here's the link to Turley: Flynn Judge Accuses Defense Counsel In Curious Plagiarism Claim. Maybe, just maybe, Flynn has an argument for having the case reassigned?

... Many of us have criticized the prosecution of Flynn who pleaded guilty to a single false statement in interviews with the FBI. In addition, Flynn may not want to be sentenced by Sullivan whose last major hearing include false allegations against Flynn and dramatic condemnations. One can certainly understand Sullivan’s refusal to let Flynn get out of a plea that he willingly entered. However, the opinion contained an attack on his counsel that seemed gratuitous and unsupported. 

Sidney Powell is a former prosecutor with extensive criminal justice experience. She was the subject of a curious part of the long opinion. 

Early on, Judge Sullivan dedicates a separate section to suggest that counsel has committed an unethical act: 

... 

Wait. Powell cited and had a hyperlink to the source of that material, but it warrants a section accusing her of plagiarism and ethical violations?
... I just do not understand why an insufficient citation warranted such a public lashing and suggestion of unethical conduct. 

Powell says that “the plagiarism accusation makes no sense.” She maintains that she used her own prior briefings and a brief written by a friend who was in fact cited. 

The criticism in the opinion will likely deepen the unease of Flynn in having the sentencing under Judge Sullivan. However, the court said that it will proceed with precisely such a hearing on January 28, 2020.

MULTIPLE UPDATES: Judge Rejects Flynn Motions

The memorandum opinion of Judge Sullivan is 99 pages long, so obviously I can't have read it. We'll soon see what others think.

What I noticed first was that Sullivan takes a shot at Flynn's attorney, Sidney Powell, suggesting that she has engaged in "professional misconduct" for plagiarization, by "merely provid[ing] a hyperlink" to a brief she quotes rather than a direct citation (p. 17):

A. Ethical Concerns with Mr. Flynn’s Brief

The Court notes that Mr. Flynn’s brief in support of his first Brady motion lifted verbatim portions from a source without attribution. Compare Def.’s Br., ECF No. 109 at 11-12,15-16, 15 n.21, with Brief of the New York Council of Defense Lawyers et al. as Amici Curiae Supporting Petitioner, Brown v.United States, 566 U.S. 970 (2012) (No. 11-783), 2012 WL 242906at *5-6, *8, *12-13, *12 n.6. In a footnote, Mr. Flynn’s brief merely provides a hyperlink to the “excellent briefing by Amicus [sic] in support of the Petition for Writ of Certiorari in Brown v. United States.” Def.’s Br., ECF No. 109 at 16 n.22. 

The District of Columbia Rules of Professional Conduct apply to the proceedings in this Court. See LCrR 57.26. Rule8.4(c) provides that “[i]t is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud,deceit, or misrepresentation.” D.C. Rules of Prof’l Conduct R.8.4(c); see In re Ayeni, 822 A.2d 420, 421 (D.C. 2003) (per curiam) (lawyer’s plagiarized brief violated Rule 8.4(c)). “[C]itation to authority is absolutely required when language is borrowed.” United States v. Bowen, 194 F. App’x 393, 402 n.3(6th Cir. 2006); accord LCrR 47(a). “The [C]ourt expects counsel to fully comply with this [C]ourt’s rules and submit work product befitting of pleadings [and briefs] in a federal court.” Kilburn v. Republic of Iran, 441 F. Supp. 2d 74, 77 n.2 (D.D.C.2006).

I dunno. Sullivan's language strikes me as a bit over the top, a bit of a cheap shot, in that Powell was hiding nothing (any more than Flynn hid anything from the FBI)--what she did doesn't appear to be "dishonesty, fraud, deceit, or misrepresentation”, even if it wasn't in full compliance with the rules.

I have to admit that I'm unable to follow the Judge's reasoning as to the merits. Let me break up the paragraphs here into major points, beginning on p. 49:

Another "Imagine If It Was A GOPer" Story

Just broke at The Federalist: Ukrainian Oligarch Paid $700,000 To The Husband Of A House Judiciary Committee Democrat. It was for legal service, so that's OK, right?

The oligarch in question--for some reason The Federalist doesn't link his Wikipedia page--is Igor Kolomoisky, described as "a Cypriot-Ukrainian billionaire business oligarch." Kolomoisky is one of those triple citizenship guys--a veritable citizenship collector. Hey, ya never know when one of those will come in handy! Ukraine, Cyprus, Israel. I guess Cyprus is for money laundering purposes.

Here are the opening paragraphs--follow the link for details:

Robert Powell, the husband of Rep. Debbie Mucarsel-Powell, D-Fla., reportedly took $700,000 from a Ukrainian oligarch named Igor Kolomoisky. Mucarsel-Powell sits on the House Judiciary Committee, the committee that drafted two articles of impeachment against President Donald Trump for his alleged abuse of power with regards to Ukraine. 

In 2018, the Daily Beast reported that a number of businesses linked to Kolomoisky hired Powell as an attorney. One of those firms paid Powell at least $700,000 over two years, according to public records. 

The Miami Herald reported Powell was working for companies tied to Kolomoisky for 10 years. Powell made most of his money in the two years leading up to his wife’s election in 2018. 

Kolomoisky has been accused of contract killings and embezzlement in the past. Yet, in 2018 when Mucarsel-Powell was running for her seat, she did not see her husband’s work as relevant to her campaign.

And there's more. Maybe Dems think someone who knows how to arrange contract killings could come in handy.

ADDENDUM: Totally unrelated, except that it's all about Lefty sleaze and dishonesty, is this piece from AmThinker: Greta Thunberg paints her German train ride as cattle car deal, actually rode first class.

Horowitz Reports Steele Meetings With Clinton Lawyers

What could be less surprising than Chris Steele meeting with the people who were paying him? Still, I'm sure they tried to keep meets to the minimum that were essential.

Here's the date that really interests me. September 23, 2016.

Horowitz reported that Steele met with Perkins Coie in July 2016, on or about Sep 23, 2016 and Oct 2016.  I don't recall this being known previously. Can anyone recall prior reports of Steele-Perkins Coie meetings on these dates? pic.twitter.com/hgVnlx3F8j

— Stephen McIntyre (@ClimateAudit) December 15, 2019

As I like to bring up, Steele was part of an extraordinary meeting in mid-September, 2016, that included future Team Mueller hotshots Andrew Weissmann and Zainab Ahmad, veteran DoJ Clintonista Bruce Swartz, Bruce Ohr, Lisa Page, and Peter Strzok. I've maintained that this looked like a meeting to tell Steele what they needed in the "dossier" so they could get the FISA on Carter Page. It's unquestionably a strategy meeting. And a few days later Steele meets with Michael Sussman, the Dems' real evil legal genius when it comes to elections.

Can I swear that the proximity of the two meetings wasn't coincidence. I suppose not, but I wouldn't want to bet that it is coincidence. In fact, if I were an investigator I'd be operating on the assumption that it sure wasn't a coincidence.

(It's About Pressure Points, passim)

Predication Is For Losers

At approximately 8 PM on Sunday, February 18, 2001, there was a knock on my front door.

At the time I was a Special Agent (SA) with the FBI, so imagine my shock when I opened the door and found the two top officials in the Division on my doorstep. I knew this couldn't possibly be good news, but they quickly sought to reassure me.

"Everything is alright, but Bob Hanssen has been arrested."

Alright? Bob Hanssen was my brother in law, and a longtime counterintelligence (CI) official at FBIHQ, privy to a vast range of sensitive intelligence information. A "high Bureau official," as field agents jokingly referred to anyone at HQ.

"Arrested? For what?"

"Espionage," they said.

I searched for something to say: "For the Russians?"

"Yes."

"I think you'd better come in," I said.

There was a small room right just off my front door that I used as a library. I led them in, got them seated, and then said, a bit shakily:

"I suppose this goes back to what I related all those years ago," I ventured, referring to events that occurred in 1990.

That statement was met with blank stares. And so I found myself backtracking to 1990. I explained that at that time I had approached the supervisor of the Russian CI squad to explain why I thought the Bureau should open an espionage investigation on Bob Hanssen. I had discussed it all with my wife the night before and had organized my thoughts around three salient points--I wanted to be sure to present a coherent and strictly legally oriented case. Those three points were as follows:

Events Leading to the Russia Hoax Tipping Point

What follows is a blog by commenter Mike Sylwester. While I don't ordinarily do this, I've been pulled in a number of directions recently. Mike has done a lot of research on the Downer-Papadopoulos aspect of the Russia Hoax and I believe his blog here will provide a useful framework for discussion on a topic that has become somewhat controversial.

Obviously, we don't know the whole story yet--that has become apparent in the last few days. Mike's focus on the process helps draw attention to the anomalies in the way Downer's "information" was handled. In any bureaucratic setting, anomalies in process must lead to suspicion.

As you read, you may wish to keep the Carter Page matter in mind, since at the same time that the Papadopoulos matter was being used to open Crossfire Hurricane--as the story goes--Bruce Ohr was conveying Chris Steele's Carter Page narrative to Lisa Page, Andy McCabe, and Peter Strzok.

Here's the distinction I see between the use of the Papadopoulos material and the Carter Page material.

Obviously, any domestic investigation would need to be handled by the FBI. The advantage to using the Papadopoulos material--which seems clearly to be a CIA operation--is that it insulated both the CIA and the FBI by inserting a supposedly independent operation by a "friendly" foreign power: Australia. In that way the CIA and FBI could pretend to be merely conduits of foreign intelligence rather than the primary gatherers.

By contrast, while the Carter Page narrative of "Russian collusion" is superficially attractive, it falls apart as soon as Page's relationship to both the CIA and the FBI is known. Worse, concealing that relationship to maintain the credibility of the narrative can only be done by lying or hiding the ball. This, to me, explains why the FBI and CIA would have preferred to base all on the very lame Papadopoulos narrative. When DoJ turned down the idea of a FISA on Papadopoulos, however, the FBI had to turn to Carter Page.

Mike's blog follows:

New Article at AT

I have an article at AT: Predication Is for Chumps: The Sorry Lesson Linking Crossfire Hurricane to Robert Hanssen. It was written for AT, but I'll have an expanded (!) version here later. Anyone interested may want to hold off comments for the expanded version proper to this blog.

I'll be back in a few hours to deal with things.

More Insight Into The Crossfire Hurricane Case Opening

Stephen McIntyre has a very interesting twitter thread that in a sense extends commenter Mike Sylwester's remarks regarding the transmittal of the Downer/Papadopoulos "information" from the FBI Legat London through the Philadelphia Field Office--which I commented made no sense under any scenario--to Cyber Division at FBIHQ.

What I've done here is simply paste in from Thread Reader App McIntyre's own text. However, if you follow the link below what you'll find is that, as he says, in his tweets he has cross referenced the (frustratingly redacted) Strzok/Page texts. Those texts offer a sort of running commentary on events at FBIHQ leading to the opening of Crossfire Hurricane. You'll need to follow the link to see those.

A point worth mentioning. McIntyre states that Horowitz says that Crossfire Hurricane was opened by the FBI's Criminal Division. However, on p. 89 of the full pdf of the report we read:

On July 31, 2016, the FBI opened a full counterintelligence investigation under the code name Crossfire Hurricane "to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia." 

I think McIntyre is getting this wrong. Consider:

1) Strzok, a CI official, wrote the EC that Bill Priestap (top FBI CI official), used to open the case;

2) Strzok continued to supervise the case, under the CI command structure headed by Priestap;

3) The obvious reason for opening Crossfire Hurricane was to get a FISA--Foreign INTELLIGENCE Surveillance Act;

4) Comey testified to Congress that Crossfire Hurricane was an Enterprise CI Investigation--which makes perfect sense to me, given that CI officials at FBIHQ seem to have handled it from beginning to end.


THREAD: cross-reference Strzok texts to Horowitz during origin of Crossfire Hurricane.

Politics!

After writing almost non-stop yesterday, I'm taking a bit of a break--except that I've been working on a project that I hope to post in a day or two. A bit different.

Here's a must read article about the UK election: The fall of Labour’s ‘Red Wall’ is a moment to celebrate. The reason this is so great is because of the parallels to the US and Trump. Read it with that in mind and you'll be amazed.

And here's a political must view, below--Mitch McConnell talking Impeachment Theater. Here's what's notable in it from my perspective:

1. No mention of doing a deal with Dems on Senate rules. Quite the contrary. Mitch's mantra is--whatever the President and his lawyers want we'll do. Dismissal? You've got it! Full trial? You've got it! Take that, Chuck! Dems have screwed the country around for three years and more and they expect Mitch to cut them some slack now? Nope.

2. McConnell expects full unity among the GOP, and thinks he may pick up a couple of Dems. Coupled with Dem defections in the House--big.

3. McConnell was given the chance to talk up his new memoirs. He took the opportunity to tout his shepherding of judicial appointments and specifically touted stiffing Obama and the Dems on their hoped for SCOTUS pick, Garland. Wormwood for Dems, but you know that will be the GOP Senatorial talking point for 2020.

4. The House needs to get something done to show they didn't run a clueless, anti-constitutional, do-nothing Congress for 2 years. Guess what? Trump and the Senate have more than enough accomplishments to run a kick ass campaign. They'll be in no hurry to do Pelosi, Nadler, and Schiff any favors in 2020.