Predication, Lying, And The Flynn Case, Part 1

Yesterday I did a long post in which I demonstrated that the FBI never, ever, had a reason to investigate Michael Flynn. Or, to hedge just a tiny bit, if they did have a reason to investigate Flynn they certainly never articulated that reason--Opening And Closing The Flynn Case. The reason Peter Strzok wanted to be sure, on 1/4/17, that the FBI's Washington Field Office (WFO) still had a case open on Flynn--despite the lack of any reason for opening that case to begin with--was to cover the Bureau's behind when they went to interview Flynn. The FBI and DoJ knew they had no reason to interview Flynn, but they could cover their behinds by claiming that it was the conclusion of the WFO investigation (for which there never was a reason). They knew the Logan Act ploy would never fly.

Think of all this in terms of what AG Bill Barr told Laura Ingraham with regard to the entire Russia Hoax: "there was no basis." In other words, more legalese type words, NO PREDICATION for any investigation. In our constitutional order the government is not supposed to simply investigate random persons. The government is supposed to have a reason--predication--for doing that. It is against the law to misuse government powers and conduct a pretext of an investigation--one lacking predication--for the simple purpose of destroying someone you dislike or disagree with. Ask Scooter Libby about that. Or read Sidney Powell's Licensed To Lie. The title of Powell's book is sadly accurate in the real world. Is it true, you ask, that becoming a prosecutor or investigator gives you a license to lie. Well, those words don't actually appear on their official credentials, but just ask yourself: When was the last time a prosecutor or FBI agent was prosecuted for lying in the conduct of their official business? You don't think they do lie? Please.

However, to return to the point. The FBI had--literally--no business opening a case on Flynn, and so they also had no business interviewing him. To try to make this perfectly clear, I'm going to paste in most of a post I ran back in December, 2018, when Flynn made his plea deal. And after that we can get back to what a bad idea the current license to prosecute "false statements" under 18 USC 1001 is.

UPDATED: Setting False Statement Traps Is Not Official FBI Business

As the slow motion drama of the Michael Flynn prosecution winds slowly toward sentencing, it has become increasingly clear that the conservative commentariat feels conflicted. On the one hand, they can't approve of what appear to be lies on the part of Flynn--inexplicable as this appears to have been in the circumstances (Flynn knew that the FBI had a recording of his conversation with the Russian Ambassador). On the other hand, there seems to be something distinctly fishy about the entire case against Flynn. The evidence of investigative and prosecutorial misconduct--possibly including criminal acts--has become overwhelming. Nor has Robert Mueller's reply to the Flynn response to the sentencing memorandum allayed any of those misgivings--quite the contrary, as Scott Johnson (one of the Powerline bloggers) puts it:

I find the reply memo to be a shocking document. Something does not compute.

Something is clearly wrong with it all. Whether or not Flynn lied, it all seems so unfair, including the very way in which the agents conducted the interview. Another of the Powerline bloggers, Paul Mirengoff nicely sums up what we instinctively know was going on:

There’s no mystery about what happened to Flynn. Towards the end of the Obama administration, this decorated General and top intelligence official left the government and became the leading critic of the administration’s national security policy.  

Compounding his offenses against the deep state, Flynn joined the Trump campaign team. ...  

For the deep state, this was the last straw. Once Flynn was named Trump’s national security adviser, it sought revenge. ... 

Yet, the question arises: Is there a legally principled way to address the Flynn situation, one which does justice to Flynn--despite his misconduct--but preserves the integrity of our justice system and, crucially, of our courts? I believe there is and addressed it this past Saturday. The solution should, in fact, be glaringly obvious, but has escaped notice--most likely because it requires an examination of the basic principles underlying law enforcement in our constitutional system. In our system of law the State is not authorized to simply test its citizens--citizens are entitled to be left alone unless law enforcement has some articulable reason for approaching them. Let me state this very bluntly, with application to the Flynn case, before examining it in more detail:

False Statement Traps Are Not Official FBI Business. The FBI has no authority to interview random people to see whether they will lie. They must have an articulable reason for the interview to begin with--one that flows from their official duties. All else must follow from that.

Kim Strassell Gets Just About Everything Right

Kim Strassell has an excellent Twitter thread that appeared at Real Clear Politics this morning. It provides a nice, concise picture of what was done to Michael Flynn by the FBI. Importantly, and this is the part that Strassell leaves out, it was also done to Flynn by Team Mueller. In fact, all of the FBI's bad behavior would have gone unnoticed but for Team Mueller taking that ball and running with it. While being aided and abetted by Rod Rosenstein and Chris Wray.

That's not an excuse for the FBI's bad behavior, for which the entire organization deserves to be turned inside out. It's simply a recognition that this attempted coup was never just about the FBI--no matter how essential and central the FBI's role was for the past four years.

Two additional things to keep in mind going forward:

1) The FBI did not "create a crime," as Strassell and so many others like to repeat. What they did was create the appearance of a crime. Flynn did not commit a crime. To keep this illusion or appearance moving forward, the FBI and Team Mueller had to engage in repeated criminal acts of their own--lies and misrepresentations.

2) Not only did the FBI have no reason to interview Flynn, they never had any reason to have an open case on Flynn in the first place. It's in the documentation for the case opening that you'll find the false statements that they FBI later relied on to interview Flynn.

If you keep these two facts firmly in mind, you'll be able to follow where Durham is trying to go: A big picture conspiracy to deprive multiple persons--to include Donald J. Trump--of their constitutional rights. The list of bad actors varies at different stages of the conspiracy--from the 2016 Russia Hoax, to the 2017 frame job on Flynn, to setting up Team Mueller on false pretenses, to the fake impeachment. Nevertheless, there is a real continuity of actors as well. The Flynn case overlaps several of these stages and includes bad actors from all of those stages. It is a door into the heart of the conspiracy that Durham is trying to exploit.

That said, here's Strassell:

A Closer Look At The FBI's Carter Page Investigation (Part 3)

In the first two parts of our closer look at the FBI's investigations of Carter Page, we focused on events beginning in March, 2016--about the time that Page joined the Trump campaign as a foreign policy adviser--and continuing to mid-September, 2016, the supposed time when FBIHQ first obtained "information" from Christopher Steele's so-called "dossier." That "dossier", as Devin Nunes has repeatedly stated, was in fact the product of the Clinton campaign's oppo research shop--Fusion GPS. The Fusion persons behind that "dossier" included Glenn Simpson and Nellie Ohr, wife of high level DoJ official Bruce Ohr, who was a close contact of Steele.

As we saw in Parts 1 & 2 of our closer look, the FBI's New York Field Office (NYFO) began its investigation of Carter Page after having been in contact with Page off and on beginning in 2009. During the same period, 2009 - 2013, Page was an asset of the CIA. What precipitated the falling out between the FBI and Page was the Three Russians case that the NYFO pursued against Russian officials based in New York. Page became a key witness in that case beginning in 2013 (the year that the CIA stopped using Page as an asset), but shortly before the trial was scheduled to begin there was a falling out between Page and the prosecution team (FBI agents and prosecutors from both the US Attorney in New York - SDNY - as well as DoJ).

Yesterday in the comments section to Part 2 there was an extensive discussion regarding Page's actual role in the Three Russians case, sparked by discrepancies between the complaint in the case (dated January 23, 2015 - my aging eyes mistakenly read that as 2013) and the press release issued by DoJ on March 11, 2016. The press release announced the guilty plea of the only one of the Three Russians who remained in the US, Evgeny Buryakov. The result of the guilty plea, of course, was that Carter Page was never called upon to testify at a trial. That should have been a happy ending for all concerned, but instead it was the beginning of an FBI Counterintelligence investigation of Carter Page that resulted in the FBI obtaining four FISA orders against Page. Those FISA orders, the final renewal of which was obtained by Team Mueller, became a key part of the FBI's (and Deep State's) effort to oust President Trump.

The discussion in the comments yesterday was very disturbing for me, as it opened new issues that--while probably not directly related to the Russia Hoax itself, or perhaps coincidentally or opportunistically related--nevertheless raised issues of prosecutorial abuse that have figured prominently in the Team Mueller Witchhunt. In this post I'll try to make sense of what happened between the FBI and Carter Page. That may not be possible, due to a lack of necessary information, but we may nevertheless get some idea of what may be hidden and what matters the Durham investigation may be looking at that are not public knowledge at this time.

Let's Review The Flynn Case

We're waiting for a key ruling in the Flynn case, and it could come before Thanksgiving. That being the case, this may be a good time to review what we know about the case.

It's widely believed that the Obama Deep State effort to frame Flynn may have begun as early as 2014. The animus toward Flynn was almost certainly fueled by his insistence on expressing his view that the rise of ISIS was the result of a knowing policy decision by the Obama administration. It's also probable that personal conflicts with other IC players like John Brennan (CIA) and James Clapper (DNI), as well as a very personal conflict with FBI Deputy Director Andrew McCabe played into this.

What form this effort took in its early stages is, as yet, unknown to the general public. No doubt, following Flynn's retirement from his position at the head of the Defense Intelligence Agency (DIA) in August, 2014, the Deep State kept an eye on Flynn's activities and his continuing interviews in which he blamed the Obama Deep State for the rise of ISIS. However, as the early stages of the race to replace the Obama administration began to shape up, Flynn was consulted by several Republican presidential campaigns, including: Carly Fiorina, Scott Walker, Ben Carson, Ted Cruz, and Donald Trump. By December, 2015, Flynn was very much a target for the Deep State and the Clinton campaign.

It was on December 10, 2015, that Flynn attended a gala dinner in Moscow in honor of RT (formerly "Russia Today"), sitting at the same table as Vladimir Putin. It appears that this event plus the allegation that Flynn had had an affair with a Russian-born UK academic, Svetlana Lokhova, was cobbled together and used to initiate a Full Investigation of Flynn by the FBI. The allegation, and the smear that Lokhova was a Russian agent, was disseminated by (among other Deep State operatives) the CIA/FBI asset Stefan Halper.

While the time frame is not entirely clear, and the investigation may not have been initiated until Flynn was asked in February 2016 to serve as an adviser to the Trump campaign, we do know this. When the FBI officially opened its Crossfire Hurricane investigation of the Trump campaign at the end of July, 2016, it was opened as an "enterprise counterintelligence investigation." That means that the FBI was claiming that a subgroup of the Trump campaign was acting as an "enterprise" that was an agent of a foreign power--Russia. Disgraced former FBI Director James Comey, in testimony to Congress, described the subjects of Crossfire Hurricane as "four Americans," and one of those Americans was Michael Flynn.

That sets the stage for the "Flynn case" as we know it, involving the business of Flynn's telephone conversations with the Russian ambassador.

UPDATED: Dersh Gets It Right

Today on Fox News Alan Dershowitz hit a hanging curve out of the ball park--and followed up with an article at The Hill: Did Michael Flynn lie? Or did the FBI act improperly? I have only one, partial, reservation with regard to his statements, which I'll make clear.

Quite simply Dershowitz states:

Is it the proper role of law enforcement to conduct criminal morality tests to determine whether citizens will tell the truth or lie when given the opportunity to do either by FBI agents?

As I've been saying, the answer--perfectly obvious to any sane person--is: Absolutely not! Dershowitz then takes it a step further, referring to Mueller's handling of potential witnesses:

Is it proper to target individuals for such tests for the purpose of pressuring them into becoming witnesses against the real target? These are important questions for all citizens who care about civil liberties and prosecutorial abuses.

That one is bound to involve trickier factual situations, but there's no doubt that Dershowitz is touching on exactly what he describes: "important questions for all citizens who care about civil liberties and prosecutorial abuses."

Here's my reservation and, as I said, it's only a partial reservation that pertains to the particular circumstances of the Flynn case. Dershowitz is absolutely clear that Flynn did nothing wrong in speaking to the Russian Ambassador. I only wish that Dershowitz had made it equally clear that the FBI had no business interviewing Flynn because there was nothing to talk to Flynn about that was within the field of the FBI's duties--neither criminal nor national security.

A Good Place For Tim Shea To Start?

Tim Shea is Bill Barr's right hand man, hand picked to be the USA for DC. Recall:

As the U.S. attorney in the District of Columbia, Shea would oversee some of the lingering cases from special counsel Robert Mueller’s Russia investigation, along with a number of politically charged investigations. The office is also generally responsible for handling potential prosecutions if Congress finds a witness in contempt.

There's no lack of work waiting for Shea. There's the Flynn case, of course. And all the Durham related matters--FISA fraud, the origins of the Russia Hoax, etc. There are also--or should be--any number of leak cases. And then there are old cases, some closed, that deserve another look. The Awan brothers, for example.

But here's a case that begs for a look--or another look, depending on whether you believe the FBI or not: the Seth Rich murder. If Durham is busy looking at the Intelligence Community Assessment (ICA) that "established" for the gullible and for the cynical Never Trumpers that Russian "hacking" of the DNC and general "meddling" was a thing. Barr has consistently made skeptical noises, so why not start by finding out what the FBI did or didn't do? We know the FBI didn't examine the DNC server--preferring to take the word of a Ukrainian linked firm, Crowdstrike, that the meddling Russians had hacked it.

There's an interesting story that's been out for a few days now. It seems the FBI has been caught out lying about Seth Rich. Here's the 25 words or less version of what's going on: The FBI has always denied possessing any records related to the Seth Rich investigation; documentary evidence has surfaced that proves that position to be false.

For the sake of refreshing everyone's recollection, this is what the Seth Rich case is about:

Due Process And The Flynn Case

According to the Due Process clause of the United States Constitution appears in two places of that document. Both instances are in Amendments to the text itself. The first is in the "Bill of Rights"--the first Ten Amendments that were added within a year of ratification of the Constitution. It's a measure of the importance of the principles enshrined in those first ten amendments that there was enough concern about the failure of the Constitution to expressly affirm these principles that James Madison himself took the leading role in amending the Constitution. And so, in the Fifth Amendment we read:

No person shall ... be deprived of life, liberty, or property, without due process of law.

Likewise, in the wake of the Civil War, protection of civil liberties was regarded as so fundamental for the the union of states that is the United States that it was regarded as necessary to explicitly extend that same principle to the states, in the Fourteenth Amendment:

... nor shall any State deprive any person of life, liberty, or property, without due process of law.

Typically, in a law school course on what's termed "criminal procedure", the idea of due process of law is traced back to the beginning of actions that include some infringement on individual liberty or privacy--a search, seizure of property or person, arrest, etc.

With regard to the Flynn case we often hear the complaint that Flynn was given no warnings that he was under investigation, that his answers to the agents' questions might be used against him, etc. Sometimes the famous Miranda warnings are even cited. The idea behind these complaints is that in the governments handling of the Flynn investigation there was a lack of what legal scholars refer to as "fundamental fairness."

The fly in this ointment is that for "due process" and "fundamental fairness" to apply, there is a threshhold issue: these concepts normally only arise when there is some government process in motion that would deprive a person of "life, liberty, or property." The process may be judicial, administrative, or executive, but some process or proceeding is normally required before a court will consider fundamental fairness. Thus, obtaining a search or seizure warrant (seizure of property or person) is typically the beginning of a due process examination.

The reason Flynn was not provided with any warnings was because the Miranda rules only apply when the person being questioned is either already in custody--has been deprived of liberty to that extent--or the law enforcement questioners intend to take that person into custody upon completion of their questioning. Neither of those conditions applied to Flynn. Flynn was free to show the agents the door at any time during the interview, or to have refused to be interviewed at all. He wasn't in custody of any sort. Nor was Flynn about to be taken into custody. Even had Flynn confessed to being a Russian agent the agents would not have handcuffed Flynn and led him out of the White House. I guarantee you that. Therefore, the agents were under no legal obligation to inform Flynn that they intended--if possible, and subject to the opinion of DoJ prosecutors--to use any statements Flynn made against him. That understanding of due process and fundamental fairness is, to this day, settled law. You may think that that situation offended fundamental fairness, but the courts have the last word and they disagree with you. Or have up to this point.

The Flynn Case: The Day After

Yesterday, in addition to filing a motion demanding that Sullivan recuse himself from the Flynn case, Sidney Powell also filed her

FIFTH SUPPLEMENT IN SUPPORT OF AGREED DISMISSAL

This fifth supplement contains a copy of one page of handwritten notes that were taken by "a lawyer in the FBI's Office of General Counsel" (which was headed at the time by James Baker). The notes were taken on 1/25/2017 at a meeting that was held by the FBI and DoJ to discuss the Strzok/Pientka interview of Michael Flynn on the previous day, 1/24/2017. The note taker is not further identified--it could have been Kevin Clinesmith, who was assigned to the Flynn case ("Razor"), but that is only a likely surmise. Clinesmith, of course, worked in the OGC, several levels below Baker.

First, let's look at what Sidney Powell has to say about the significance of the these notes--what we can learn from them about the FBI/DoJ view of the case at that time:

Today the Government produced a single page of FBI notes from January 25, 2020 taken by a lawyer in the FBI’s Office of General Counsel. In that meeting it was clear, the day after the FBI’s interview of General Flynn, that “no reasonable prosecutor” would bring a Logan Act charge regarding the December 29, 2016 phone call with Ambassador Kislyak, which was similar to communications by “other transition teams.”

Moreover, the FBI knew on January 25, 2017, that none of the statements made by General Flynn to the FBI the day before could be material to any legitimate FBI investigation or action. These notes are further exculpatory evidence—standing in direct violation of this court’s Brady order—showing that General Flynn has been innocent all along, which the FBI knew from the beginning.

To summarize, Powell makes three points which, as we'll see, require some "reading into" the notes, but which also seem entirely reasonable:

Hands Down Best Commentary On Flynn Case

Every time I've listened to Brett Tolman discuss anything to do with the Russia Hoax I've been impressed by the way he gets right to the real heart of issues that are often difficult to grasp for people who are unfamiliar with the legal aspects of our national security apparatus. This morning on Fox and Friends Tolman was excellent and succinct as usual, in an interview that focused narrowly on the Flynn case, rather than the big picture of the Russia Hoax. Nevertheless, the implications for Durham's investigation could be enormous, as he will have crushing leverage over everyone involved in trying to screw Flynn--and through Flynn, Trump. Tolman was a former prosecutor, former USA, and former counsel to Orrin Hatch on the Senate Judiciary Committee. He really gets this stuff.

Here's how this excellent interview went.

Q: When you read the notes, it looks like a trap. And it looks like, going in, they were trying to get [Flynn] to admit that he had broken the Logan Act--which, that never happens, that never gets prosecuted [Tolman grin at mention of the Logan Act]--or to catch him in a lie. Cuz, ultimately, they weren't really interested in investigating his contact with the Russians but instead they were looking for a referral to the Department of Justice--and get that guy out of his job.

Tolman: That's right. This activity is outrageous. Everybody's saying it, but here's why it is. It's *predatory.* This is not ... a group of FBI agents who are informed there may be a line of investigation they need to look into. Instead, they are *creating* that investigation. And why are they doing it? They see him, potentially in the role he was in, they saw him as a threat. Perhaps he'd be a threat to what they wanted to accomplish through FISA. Whatever reason, they targeted him, and you can see now, it's starting to come out, that it was a target.

In other words, as I've maintained in the past: Setting False Statement Traps Is Not Official FBI Business. This interview of Flynn had no official FBI purpose--it had nothing to do with official FBI authorities or business. The excuse of the Logan Act was barely even a fig leaf--it was a joke, and a bad one at that. That excuse never rose to the level of a good faith belief that the interview had a legitimate FBI purpose. Nor was the FBI seeking information from Flynn for use in some actual legitimate investigation. The pretext for the interview was simply that the leak--probably an FBI authorized leak to begin with, and certainly one they gave a wink and a nod--had caused a public stir. Flynn fell for that. But the interview itself sought no information the FBI didn't already have and that was legitimately their concern--it turned out to be no more than a memory test for Flynn. And because his memory was claimed not to be up to snuff he was called a liar and was prosecuted. "Predatory." It is not official FBI business to conduct memory tests. That is not within the scope of FBI authority or duties.

The next question focuses on the enormous pressure that Team Mueller was able to exert over Flynn to coerce a guilty plea. The question ends up: "Does Lt. General Flynn now have some leverage to go for exoneration?" Listen to Tolman's response:

Tolman: Yeah, couple of things, very important, there. People plead guilty when they're innocent. Why do they do it in the federal system? Because the federal system has what's referred to as the trial penalty. If you take them to trial you're risking many, many more years in prison. Decades. And they can do it. They could do it in this case. They could create a sentence that he would be facing ... decades in federal prison. So there's enormous pressure. So he pleads guilty thinking it'll be probation, he'll get this behind him, only to learn and realize that his lawyers didn't serve him well, there were conflicts of interest. He's now feeling that he's stuck, he hires a new lawyer and she aims at one thing, one thing alone: She wants to see the underlying documentation that justifies what they did. That's called 'exculpatory evidence', what they found. Usually you find that kind of evidence and it suggests some sort of innocence. But here it suggests innocence *and* misconduct by the FBI. It's outrageous!

The final question is prefaced by a video clip of Devin Nunes saying "Clearly General Flynn is gonna have a civil rights case. ... Secondly, hopefully there's gonna be some prosecutions for this matter." So, the question goes, re Priestap's notes, which suggest strongly that Priestap thought the "game playing" was at least ill advised, perhaps even legally wrong: "James Comey and Deputy Director Andrew McCabe were in that meeting. What will happen to them?"

Tolman: So, a lot of people are throwing out the phrase, 'obstruction of justice.' That's *not* the only issue for these individuals. If they knew going into this that they were setting up and creating this crime that wasn't actually there [please refer again to my comments above] then they made representations to the grand jury, and then they made representations to the court--all of those can have criminal consequences. Keep in mind, the Supreme Court in 1971 said that an individual like Flynn can go after agents that do this kind of thing--knowingly violate someone's constitutional rights. It's called a 'Bivens action.' And I'm pretty certain, if this case gets dismissed, that'll be the first thing he does.

A Bivens action is not necessarily straightforward in all cases, but I believe Tolman is correct in this case. There have been, in relatively recent years, restrictions placed on Bivens actions by the Supreme Court. Nevertheless, in this case, where there is such strong evidence of a conspiracy to use the "color" or cover of federal law to knowingly violate Flynn's rights, acting outside of any plausible authority, that Flynn probably has a strong case. And a case that any lawyer would love to present to a jury. You can read about Bivens actions here.

This is what the conspirators are facing: the strong potential for crushing civil and criminal liability with all the attendant legal costs and gut wrenching consequences for personal lives. That's what Durham gets to work with to secure cooperation and/or pleas. That's the kinda stuff you should consider before getting into an attempted coup.

UPDATED: Armed Protests? Or Not Really?

You've undoubtedly seen the headlines:

FBI warns of plans for nationwide armed protests next week

The headlines are similar at all the other MSM outlets--it's always about "armed protests" in all 50 state capitals.

The claims are said to be based on an "internal FBI bulletin." Some of the sites, like CNN and ABC, claim that you can read the FBI bulletin further down their pages, but that's not precisely true. You can't read the actual bulletin. What you can actually read is a further statement that the FBI put out after the leak was publicized. That statement appears to be intended to clarify the media hype.

However, this AP account does contain what purports to be a direct quote:

WASHINGTON (AP/WTNH) — Every state is now on high alert after the FBI sent out a warning of plans for armed protests at all 50 state capitals and in Washington in the days leading up to President-election Joe Biden’s inauguration.

This stoking fears of more bloodshed after last week’s deadly siege at the U.S. Capitol.

An internal FBI bulletin warned that, as of Sunday, the nationwide protests may start later this week and extend through Biden’s Jan. 20 inauguration, according to two law enforcement officials who read details of the memo to The Associated Press. Investigators believe some of the people are members of some extremist groups, the officials said. The bulletin was first reported by ABC.

“Armed protests are being planned at all 50 state capitols from 16 January through at least 20 January, and at the U.S. Capitol from 17 January through 20 January,” the bulletin said, according to one official. The officials were not authorized to speak publicly and spoke to the AP on condition of anonymity.

The FBI issued at least one other bulletin — they go out to law enforcement nationwide on the topic — before the riots last week. On Dec. 29, it warned of the potential for armed demonstrators targeting legislatures, the second official said.

Here's how I read this:

Information Sharing Is Great!

The whole principle behind the notion of "information sharing" is the common sense idea that two heads are better than one. All concerned parties get together, share what they know on a given subject, bat the facts around to come up with analysis and ideas for what action to take. "Brainstorming." It works in business, it works in the law, it works in daily life, and it works in the Intel Community.

For example, you bring analysts from different intel agencies together under the direction of John Brennan, they brainstorm ideas, and then Peter Strzok writes up the Intel Community Assessment the way John Brennan wanted it from the beginning. Then they foist the ICA on 1) an unsuspecting public, and 2) a cynical and witting political establishment. What a concept! What could go wrong? Well, Donald Trump, Devin Nunes, Bill Barr, John Durham, an aroused American public.

Eric Felten has a wonderful article on intel sharing today at Real Clear Investigations, and you need to read it all: How an FBI Team in Rome Gave Steele Highly Guarded Secrets. Wait a minute, you say? The FBI shared "highly guarded secrets" with a private citizen of a Foreign Power? That can't be right--that can't be approved! Information sharing is all fine and good, but there have to be some restrictions when it comes to "highly guarded secrets," right?

Indeed there are, but they only apply to chumps like you and me. Certainly not to High Bureau Officials. And so Felten chronicles--it's all there, buried deep inside Michael Horowitz's FISA Dossier--how the FBI shared "highly guarded secrets" with Christopher Steele, knowing full well that he was working for the Clinton campaign.

One's first reaction is bound to be: Should I laugh or cry? Is the US lead Counterintelligence agency being exposed as the Keystone Kops of the Intel Community? But rest easy. There was a very good reason for the FBI to share its "highly guarded secrets" with Steele. To understand why, you need to understand the context of the meeting at which so much of the sharing went on.

As you'll see when you read Felten, the meeting in question took place in Rome. It took place on October 3, 2016. The FBI had, by that time, received most of Steele's "information", but they needed more. In light of that, consider the timing for the Rome meeting. The date of October 3, 2016, means two things: The meeting took place after the Crossfire Hurricane investigation was opened, but before the Carter Page FISA was applied for. So, what kind of information was provided to Steele? This kind of information:

Lisa Page's Confirmatory Bombshells - Day One

Lisa Page's testimony before the House Judiciary Committee--released yesterday by Rep. Doug Collins (Ga.) is 365 pages in length and was conducted over two days. It includes questioning in alternating rounds by the GOP and Dem Representatives. In what follows I will confine myself to the questioning by the GOP Reps, since the Dem questioning is mostly in the nature of damage control.

While there is overall little new in what Page says, her testimony is strongly confirmatory of the positions I have maintained over the past years regarding the Russia Hoax. I particularly welcome her testimony because it directs the focus to what I believe is the fundamental legal issue, which is: the basis for initiating the Crossfire Hurricane (CH) investigation. In that sense I refer to Page's testimony as containing "confirmatory bombshells." She removes any remaining doubt regarding the corruption that characterized the entire process.

ROUND ONE: TREY GOWDY QUESTIONING

The hearing leads off with Trey Gowdy doing the questioning. My impression at this point--as throughout--was pretty much in line with what the GOP Representatives who did the questioning stated at the time: Page gives every appearance of being a very forthcoming witness. True, Page is at times defensive, but she presents as sincere and credible, answering all questions forthrightly unless instructed not to answer by FBI counsel. Even then she attempts to provide as full a response as possible. Her narrative of an FBI that was alarmed at the possibility that the Trump campaign had been infiltrated by "the Russians" comes across as perfectly sincere. And yet ...

The actual effect of her testimony is quite otherwise when it's subjected to a close analysis. In fact, the actual thrust of her testimony is to strongly confirm that the entire Crossfire Hurricane investigation (the FBI codename for the investigation into the Trump campaign) was fundamentally based on ex-MI6 spook Christopher Steele's totally unverified "dossier". Further, it soon becomes apparent that the FBI was applying a double standard to Hillary Clinton related investigations as opposed to Steele's outlandish allegations against Trump.

MAJOR APOLOGY: I Go There

Thanks to the commenters--see below--who took the time to correct me on a faulty timeline. I confused Giuliani's "detailed outline" of Biden Crime Family dealings in Ukraine--which Giuliani provided to DoJ in January, 2020, nine months ago--with the date that the FBI obtained the Hunter Biden hard drive. As the commenters have pointed out, it appears that the FBI obtained that original hard drive--not a copy--in about December, 2019. It was Giuliani who only obtained the material recently. I've revised this post and used the red font to indicate where the changes were made.

This correction doesn't actually change the legal ramifications of anything I say below.

I've been listening to Mark Levin's interview of Rudy Giuliani from last night, here. As I've made clear, I've been loath to get into the reports of disturbing sexual material on the Hunter Biden hard drive, for a number of reasons. However, during the Levin - Giuliani interview, there is a brief segment in which Rudy dances around the issue a bit. Nevertheless, while he hedges his statements with legal provisos, he leaves no doubt that the material on the hard drive involves clear criminal conduct. That doesn't leave too much to the imagination, in the total context. Thomas Lifson, in a blog at American Thinker--Hold on to your hat: Hunter's hard drive roll-out this week is going to unleash a whirlwind--quotes some Wayne Allen Root tweets that leave even less to the imagination. These are public figures making public statements that are clearly actionable if untrue. Further, Giuliani is credible--I presume that he would never make statements as explicit as those I'll describe without having his behind totally covered.

Now, before I get to my transcript of the Levin - Giuliani interview, let me go over some ground that we've already covered. You need to be clear that Giuliani talks about two separate issues in his response to Levin. Those two issues are quite separate from an investigative standpoint. They are also separated by nine months in time and may involve different evidence--evidence that may differ in probative value. 

SWC: Get Over It, Russia Hoax Conspiracy Theorists!

Shipwreckedcrew makes no pretense of hiding his disdain for those of us who believe--based on evidence--that candidate and then President Donald J. Trump was the victim of a "grand conspiracy":

Clinesmith Sentencing Statement Filed by Durham -- No Grand Conspiracy Revealed Regarding Clinesmith's Crime

The article curiously ignores key facts and shows little concern for the damage done to the credibility of the American federal justice system--which, he likes to remind us, he served for 22 years.

Here's how he begins:

This is sure to break the spirit of some, and reinforce the views of others that Attorney General Barr and now Special Counsel Durham are actively engaged in grand cover-up along with FBI Director Chris Wray regarding the FISA warrant obtained against Dr. Carter Page.

Why, one might ask, does SWC choose to frame the views of those who may disagree with him in such a harsh light? I have recently harshly criticized Barr regarding his actions, both as to his comments on the election as well as his curious appointment of John Durham as a Special Counsel. I haven't alleged a "grand cover-up"--more like a lack of courage or misguided concept of "healing wounds" by ignoring the cause of the wounds to the body politic. I'm sure there are many others who would share my point of view.

To SWC the "simple facts" are and have always been obvious: Clinesmith honestly, if mistakenly, believed that Trump was a "Russian operative":

UPDATED: More On OIG's Report On Problems In The FBI's Confidential Human Source Program

Yesterday we took a look at how OIG's reports on various aspects of the Russia Hoax will likely end up both supporting one another as well supporting certain aspects of the Durham investigation (OIG's Interlocking Reports). In doing so we quoted extensively from Brian Cates' fine article. Today Margot Cleveland has an excellent analysis of the same OIG report on problem within the FBI's CHS program. I recommend the entire article: Blockbusters Buried In The IG Report On FBI Misuse Of Confidential Sources (h/t Cassander), which is eye opening. However, I want to add a bit of a caveat.

The Russia Hoax involves the world of foreign intelligence collection and of counterintelligence. The agencies involved in this work gather information in various ways, but the use of confidential human sources remains, even in this day of sophisticated electronic data gathering, remains an essential part of that process. Essential, yet problematic. Evaluating the human motives of a CHS is always difficult at best, and even an evaluation of their reliability can be problematic. It's as complex as human nature and the human personality. Conclusions regarding a CHS can and should never be final, yet workers in the intel world are human, too. A source who lies in one situation may be truthful in another--nothing is simple. The dangers of being too trusting in a long term source who tells you what you want to hear, or of distrusting a source for various reasons--including being the bearer of bad news--are always factors to be borne in mind. Bureaucratic rules and guidelines, while necessary, will never be able to cover all situations and subjective considerations cannot be eliminated.

Here's what I'm leading up to. One aspect of the OIG report that Cleveland singles out is this:

Exempting Sources Like Steele from Routine Validation

A third important point gleaned from last week’s IG report on confidential human sources concerns the attorney general guidelines’ requirement that all long-term sources receive an enhanced validation every five years, except “those CHSs providing information for use in national security investigations or foreign intelligence collections.”

So, under the guidelines, while the FBI must seek and obtain the approval of the Human Source Review Committee (HSRC) every five years for most confidential sources, individuals, such as Steele, who feed the FBI unverified information from supposed foreign-intelligence collections are exempt. Not that a HSRC review would likely matter, in any event, since the HSRC must rely on the Annual Validation Reports and other relevant FBI documentation which, as the IG report revealed, intentionally omits negative information about CHSs.

Note that Cleveland rightly points out that the fact that the AG Guidelines do not require that a CHS used in "national security investigations or foreign intelligence collections" be subject to "an enhanced validation every five years" is, from one point of view, irrelevant. That point of view is the fact that OIG documented that the FBI "intentionally omits" documenting negative information about confidential human sources. (See the article for more on that.) Apart from other considerations, Cleveland again rightly cites OIG's concerns that the failure to document such negative information can adversely affect not only investigations but even, potentially, agent safety.

Chris Steele: Source From Hell--Or What?

Eric Felten's article today about Russia Hoax fabulist Chris Steele and Steele's FBI handler--Michael Gaeta--is strangely not as thorough as one usually expects from Felten's past work:

Supposedly Reliable Steele Acted 'Crazy,' His FBI Handler Says: 'People's Ears Were Bleeding.'

The article is fine, as far as it goes--Felten concentrates on Gaeta's and the FBI's dismay when Steele turned out to be the source for an article by ueber-sleazy 'journalist' David Corn. Corn's article--A Veteran Spy Has Given the FBI Information Alleging a Russian Operation to Cultivate Donald Trump--Has the bureau investigated this material?--came out in Mother Jones on October 31, 2016, just a week before the election. Corn's article is, typically, full of innuendo and anonymously sourced characterizations. Coming in the immediate wake of disgraced former FBI Director James Comey's reopening of the Hillary email case, Corn hints at possible negligence on the part of the FBI in not following up on the 'Veteran Spy's' information about supposed Trump - Russia collusion, leading off with a statement by noted champion of bipartisanship, Senator Harry Reid:

On Sunday, Senate Minority Leader Harry Reid upped the ante. He sent Comey a fiery letter saying the FBI chief may have broken the law and pointed to a potentially greater controversy: “In my communications with you and other top officials in the national security community, it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisors, and the Russian government…The public has a right to know this information.”

The FBI was predictably upset that their supposed top source, Steele, was participating in a hit job on the Bureau. Steele's handling agent, Michael Gaeta was dispatched to contact Steele--tellingly, not so much to read Steele the riot act but to find out what had gone wrong. Was it something the FBI had done or neglected to do? Was Steele in a huff about slow payments? Was this payback for the Bureau's slowness?

Adam Housley On Biden Inc., Wray, Durham

I'm going to do something a bit different. Adam Housley--who claims to have multiple FBI sources able to tell him what's up with the Biden investigations and other matters--did a brief two-tweet thread. That led to quite a few comments, which Housley in turn responded to. Many of the comments mirror the impatience and other things I see in comments here, so Housley's thread may serve as a useful vehicle to address those matters.

What I'll do is first reproduce Hously's thread, but then I'll insert the comments and Housley's responses in Q & A format. I'll also insert some comments of my own. There may be some minor editing. As you'll see, Housley begins with the business about the FBI supposedly "dropping" any Biden Inc. investigation, but the discussion branches out a bit to Durham. So here we go:

Two Puzzles

Two things about the Biden Crime Family case puzzle me a bit. One of them I think I can explain, the other I'm not sure.

The first is simply this: Why would the FBI apparently not take action to "protect persons" (as Rudy Giuliani has said), based on what we're hearing from multiple credible sources regarding the contents of Hunter Biden's laptop? As we all know, Giuliani is referring to what appear to be graphic sexual images of underage females on the laptop. I initially wondered--based on the earliest rumors/reports--whether the FBI had been able to identify the persons who might need protection, or whether the FBI had jurisdiction over those persons. It now seems clear that at least one of those persons has been identified and may actually be related to the Biden family.

Obviously, if the FBI was conducting a sensitive investigation of the Biden Crime Family (BCF) they would prefer to avoid any action that would alert the BCF to their investigative interest. Taking steps to protect a minor who was at sexual risk from Hunter Biden might well be that alerting action. However, absent a compelling justification for not acting, Giuliani is correct: the FBI would have had a duty to act to protect persons at risk, if those persons--as seems to be the case in at least one case--can be identified and located within the FBI's jurisdiction (I'll skip over what might be done regarding foreign nationals, since there isn't a simple answer).

The possible explanations seem to be twofold. The first explanation would be that the FBI may have determined that the person at risk had been removed from risk by the time the FBI came to know of the situation. In other words, the FBI may have been able to determine that some adult had intervened to prevent access by Hunter Biden to the minor who was at risk. There are signs from the text that Giuliani displayed yesterday to suggest that this may, in fact, be the case.

The other possible explanation would have to do with the date of the incidents. The text that Giuliani displayed was redacted--including the date. The incidents of concern may have occurred long enough ago that the minor in question is no longer a minor--and may not have been a minor any longer at the time the FBI gained possession of the laptop. That might also explain why the Delaware State Police passed on the material Giuliani offered them yesterday.

Those seem the most plausible explanations. As we'll see, below, there would likely have been too many FBI and DoJ officials involved, with far too much to lose, for any corners to have been cut in this regard.

UPDATED: It's James Baker's Turn To Throw Rosenstein Under A Bus

Not long ago I did a blog with the title: Dems Throw Wray And Rosenstein Under The Bus. John Solomon is now reporting that, according to James Baker in his recent House testimony, that business about Rosenstein maybe wearing a wire against Trump was no joke--or at least not from the perspective of the FBI--Former FBI lawyer: Plot to record, remove Trump not a joke:

Baker told lawmakers he wasn’t in the meeting that McCabe had with Deputy Attorney General Rod Rosenstein in which the subject came up. But he did have firsthand conversations with McCabe and the FBI lawyer assigned to McCabe, Lisa Page, about the issue.

“As far as Baker was concerned, this was a real plan being discussed,” said a source directly familiar with the congressional investigation. “It was no laughing matter for the FBI.”

Solomon is properly circumspect about what might be behind Baker's statements--after all, this could be simple truth-telling, or it could be payback for Rosenstein's cooperation with Trump in recent weeks? It remains possible, even likely, that Rosenstein wanted nothing to do with McCabe's idea of recording President Trump and seeking to invoke the 25th Amendment to remove Trump, no matter what his personal views on Trump. On the other hand, the FBI leadership--knowing what their criminal jeopardy was should Trump become aware of their shenanigans during the 2016 election--doubtless saw this as a life and death matter. For them. It wouldn't be for Rosenstein, although Rosenstein went on to create his own problems for himself--appointing the Special Counsel, approving the final FISA, all on fraudulent grounds. Solomon rightly stresses the extraordinary implications of all this: