The FISA-Gate Boomerangs

Victor Davis Hanson // National Review

Some things still do not add up about the so-called Steele dossier, FISA warrants, the Nunes memo, and the hysterical Democratic reaction to it.

A Big Deal or a Nothing Deal?

1) Progressives and Democrats warned on the eve of the memo’s release that it would cause havoc throughout the intelligence agencies, by exposing classified means and processes.

When no serious intelligence expert claimed that the released memo had done such damage, the official response to the memo was suddenly recalibrated by progressives. It went from being radioactive to a “nothingburger.”

The obvious conclusion is cynical: Cry Armageddon to prevent its release, then, after the release, resort to yawns to downplay its significance. An even more cynical interpretation is that Rod Rosenstein, James Comey, and other officials stridently objected to the release of the memo because they are named in it. Comey incoherently mocked the memo’s purported unimportance even while listing all its deleterious effects and the crises that would ensue.

Congressional, DOJ, and FBI resistance to the release of most documents connected to FISA-gate apparently originates with fears that information will either reveal Obama-administration efforts to surveille Trump officials during a campaign or will suggest that the impetus for the Mueller investigation came as a result of illegal activities and a concocted dossier — or both.

2) Critics scream, “Carter Page is no big deal.” Aside from the easy retort that neither, initially, was a petty break-in at the Watergate complex, or rumors of supplying arms to distant guerillas in Central America, Page is a big deal for a variety of reasons.

Democrats allege that, given Carter Page’s familiarity with Russians, it was logical for the Obama administration to use the dossier’s references to him to substantiate FISA warrants.

But is not the opposite more likely true?

He was apparently known to intelligence agencies for years (supposedly under investigation variously by the FBI, the CIA, the NSA, the Director of National Intelligence, and the Financial Crimes Enforcement Network), and he may have been the object of a 2014 FISA warrant. But such intelligence agents were never able to bring charges against him, and it appears he even cooperated with American intelligence in gathering info against the Russians. So why would the FBI and DOJ, suddenly in 2016, believe that mention of Page’s name in an unverified opposition-research dossier warranted four FISA warrants to find wrongdoing?

After all, if he was so well known to the FBI for so many years, during which they never charged him with being a Russian agent, and if the FBI nonetheless still regarded him as suspicious in 2016, why not simply go to a regular court to obtain a warrant to wiretap him? Such a court, of course, would be less secretive, not known for a 99 percent approval rate, subject to far more deliberation, and less useful for surveilling Trump associates.

A more likely supposition is that it was not Page’s past flirtations with the Russians (who supposedly dubbed him an “idiot”) that abruptly brought him back into the sights of the DOJ and FBI in 2016. Instead, it was his brief and minor relationship with Trump, and his appearance in a bogus dossier, that offered useful pretexts for court-ordered surveillance sweeps and indirect targeting of possible Trump associates.

Page was simply a tool, to be surveilled in hopes of also sweeping up other names and information that might corroborate some shred of the dubious Steele dossier. In that narrow sense, his name might as well have been Jones or Smith.

So far, all Carter Page has been found guilty of is momentarily working for the Trump campaign. His likely future lawsuits against Steele, Fusion GPS, the Clinton campaign, the FBI, and the DOJ will probably follow a number of avenues.

3) The New York Times and others strangely have claimed that the dossier-based FISA warrants were not the real basis of the Russian-collusion allegations, given, as the memo implies, that the FISA warrants were issued after FBI agent Peter Strzok had investigated George Papadopoulos, another minor Trump-campaign official of brief tenure.

But there has never been much connection between Page and Papadopoulos, as the Nunes memo also made clear. It is far more likely that Papadopoulos was written off as a dead-end functionary by Strzok, who also claimed to his paramour that there was likely nothing to be found at all in the Russian-collusion investigation. (And indeed Papadopoulos eventually pled guilty to making false statements, not collusion).

More likely, the collusion narrative gained ground only when the Steele dossier energized subsequent FISA requests in October and after the election, resulting in surveillance sweeps.

Moreover, given the admissions by Strzok that he detested Trump and pondered ways of stopping him, and given that he and the FBI were never able to find Papadopoulos indictable on intended collusion charges, it is entirely unlikely that Papadopoulos prompted much of anything.

If he was not a dead end, then the argument could just as well be that an admittedly biased FBI agent hounded a minor, former Trump aide to find collusion, failed to find it, tried to turn him by the usual “false statements” perjury traps, and then Strzok or others around him leaked information about collusion investigations to damage the Trump campaign.

4) Other than Andrew McCarthy of National Review, few have written about the FISA-court application(s) for surveillance of Trump-campaign officials that the FISA court rejected in June 2016, shortly before Trump was nominated as the Republican candidate.

Given that 99.97 percent of FISA requests are eventually granted, why exactly did a federal judge quite extraordinarily reject an Obama-administration FBI-DOJ request? Was it too “broad” or insufficiently sourced in June? And what (or who) had changed by October, when a subsequent request was apparently granted? Was Strzok’s July investigation of Papadopoulos better grounds to surveille Trump associates? Was the dossier (which apparently became known to the FBI as early as June or July 2016) initially used to obtain a warrant, to no avail? Or was the dossier instead used first in October, on a subsequent attempt, and in this case the FISA court granted the warrant?

5) The talented, Trump-hating Peter Strzok was a sort of ubiquitous Zelig of FISA-gate and the most interesting of all the players named so far in the case. He probably convinced Comey to change the wording of his report on Hillary Clinton to prevent criminal liability. He may have started the whole shebang off by investigating George Papadopoulos. He texted away to his mistress and fellow FBI investigator Lisa Page the court secrets of the FBI and Mueller investigations, saying his gut sense was that there was “no big there there” to the entire effort. He interviewed Mike Flynn without Flynn’s lawyer being present, and he probably compared Flynn’s responses in that interview to FISA intercepts. He also met with Andrew McCabe to ponder ways to nullify the Trump ascendency. And unlike his far less talented superiors, he may have been careful to avoid strictly breaking the law.

6) Even less has been written about the Obama administration’s public attitude to the ongoing efforts of its own DOJ and FBI to seek FISA warrants to surveille Trump associates.

Trump (apparently tipped off to prior FISA surveillance of his campaign associates) presciently tweeted on March 4:

Most of the establishment media insisted that Trump’s tweet proved he was unhinged and paranoid. Former Obama White House officials issued haughty denials. Yet it is increasingly likely that Trump received good counter-intelligence on Obama-administration efforts that were either improper or illegal, and likely both.

An Obama communiqué that replied to Trump’s accusation had the inadvertent effect of leaving even more doubt:

A cardinal rule of the Obama Administration was that no White House official ever interfered with any independent investigation led by the Department of Justice. As part of that practice, neither President Obama nor any White House official ever ordered surveillance on any U.S. citizen. Any suggestion otherwise is simply false.

Some have noted that the disavowal was carefully worded. First, it claims that no “White House official” interfered with any independent investigation. Fine, but does that mean other administration officials may have, or that a White House official may have interfered with investigations not deemed “independent”? And does “interfered with” include unmasked? Second, if neither President Obama nor a White House official ordered surveillance on any U.S. citizen, does that mean that Obama-appointed DOJ and FBI officials might well have?

The problem may not be that the Obama White House itself had ordered surveillance of Trump associates, but rather than it sat back and enjoyed the wide berth granted to its DOJ and FBI investigators.

In support of the Obama denial, the Washington Post’s Glenn Kessler, to take one example, at the time issued an embarrassing second denial in a “fact check” that was soon made inoperative by leaks about ongoing FISA-warranted surveillance of Trump officials:

The Washington Post for months has sought to confirm this report of a FISA warrant related to the Trump campaign but has been unable to do so. Presumably other U.S. news organizations have tried to do so as well. So one has to take this claim with a huge dose of skepticism.

The Wrongdoer in Chief: Obama?

In this context, one of the final executive orders of the Obama administration takes on new significance. Shortly before leaving office, Obama abruptly issued yet another expansion of the Reagan-era Executive Order 12333, dramatically enlarging some 17 government agencies’ legal authority to surveille U.S. citizens — an order that had followed even earlier expansions of the number of officials privy to surveilled information. Why such a radical move in the last days in office?

The practical intent of that order might have been inadvertently contextualized by Evelyn Farkas, a former assistant deputy secretary of defense. On MSNBC’s Morning Joeshow, she blurted out:

I was urging my former colleagues and — and frankly speaking, the people on the Hill, it was more actually aimed — aimed at telling the Hill people, “Get as much information as you can, get as much intelligence as you can before President Obama leaves the administration.” Because, I had a fear that somehow that information would disappear with the senior people who left. So it would be hidden away in the bureaucracy that the Trump folks, the Trump folks, if they found out how we knew what we knew about their, the staff, the Trump staff’s dealing with Russians, that they would try to compromise those sources and methods, meaning we would no longer have access to that intelligence. So I became very worried, because not enough was coming out into the open, and I knew that there was more. We have very good intelligence on Russia. So then I had talked to some of my former colleagues, and I knew that they were trying to also help get information to the Hill.

What exactly did she mean by “how we knew what we knew about their, the staff, the Trump staff’s dealing with Russians”? Was the DOD also privy to FISA-ordered surveillances, or did DOD staffers simply read the passed-around Steele dossier and other memos?

What Farkas was probably outlining was an eleventh-hour attempt to leak, perhaps improperly and illegally, surveillance and classified gossip to as many government agencies as possible as well as sympathetic congressional leaders, in hopes that the information would flood out (as it did) before the incoming Trump administration could stop such illicit dissemination of improper government surveillance.

At some distant point, investigators and the media will conclude that the nexus of wrongdoing was likely Barack Obama himself. Aside from the massaged investigations of Hillary Clinton’s wrongdoing, during the election of 2016 and the Trump transition of November 2016 to January 2017, Obama allowed his DOJ and the FBI to manipulate the FISA courts to surveille an American citizen and indirectly target others. He then made sure such data were disseminated among as many administration hands as possible. And he further allowed his subordinates to unmask surveilled citizens, whose identities and (in some cases conversations) were ultimately leaked to news organizations.

That was a process of leaking and sensationalism that sought first to damage the Trump campaign. Ultimately, it succeeded in creating overwhelming public and official Washington pressure to justify James Comey’s later efforts to angle for the appointment of a special counsel.

The House Intelligence Committee’s “phase one” memo, as Nunes has described it, limits itself to the likely wrongdoing of DOJ and FBI officials.

One would expect that phase two and beyond would examine the nature of the surveillance itself, the number of Obama intelligence and political officials who had access to such information, the exact requests of named officials to unmask Trump associates, and the correlations of such unmasking with the roughly simultaneous appearance of such names in the media.

Both Watergate and Iran-Contra were multiyear affairs. FISA-gate may last longer, given that the media this time around are not a watchdog, but an enabler, of government misconduct. We are at the very beginning of the exposure of wronging by Obama-era DOJ and FBI officials — and their superiors — and have not begun to learn exactly why and how American citizens were improperly monitored, and by whom. In one of the strangest moments in the history of American journalism, Washington reporters and agencies, known for their loud interests in protecting civil liberties, are either silent or working to suppress news of these scandals, and they may well soon rue their own complacency.

Nor have we learned the full nature of why and how Obama-era investigative agencies departed from normal protocol in exonerating Hillary Clinton from criminal liability during a number of 2015–16 controversies. Presumably there are records, official and otherwise, of these matters; they should come to light as soon as possible.

What seems clear is that the present hysteria about the Trump administration was already deeply seeded in the federal government throughout the 2016 campaign and the 2016–17 transition. A number of powerful Obama officials thought they had both moral right and the administrative means to nullify Trump. And they were not shy in breaking the law to exercise them.

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