Rep. Adam Schiff, D-Calif
Firstly there was the flurry of further indictments from Special Counsel Robert Mueller.
Though none of these indictments actually takes the Russiagate collusion case which Mueller is supposed to be investigating any further forward - the indictment against the 13 Russians who worked at the St. Petersburg based Internet Research Agency actually resulted in an admission that there was no collusion between the Russians who had been indicted and any member of the Trump campaign - such is the intensity of the commitment of the media to the Russiagate narrative that they were treated as big news, when in truth they are no such thing.
Secondly we have had the Memorandum the Democrats in the House Intelligence Committee put together in response to the GOP Memorandum which was published earlier.
Contrast between Democrats' Memorandum and GOP Memorandum
Even at a first glance the contrast with the GOP Memorandum is sharp and obvious.
Where the GOP Memorandum is a concise and impersonal document three and a half pages long obviously written by a lawyer (Representative Trey Gowdy) which uses legal language, the Democrats' Memorandum is a meandering ten page document which though purportedly dealing with the legal issue of due process uses language which is more journalistic than legal.
For all the very striking difference in language, does the Democrats' Memorandum in fact refute any of the claims made by the GOP Memorandum?
A good starting point is to look at the way the two Memoranda discuss the Trump Dossier.
The GOP Memorandum says that the Trump Dossier though 'minimally verified' provided the main evidence for the application to the FISA court for a warrant authorising surveillance of Carter Page.
The Democrats' Memorandum says on the contrary that the Trump Dossier had only a "narrow" role in the application for the FISA warrant authorising surveillance of Carter Page.
Which of the two Memoranda is telling the truth?
Byron York at the Washington Examiner has provided a masterly analysis of the Democrats' Memorandum showing that it does not in fact refute the GOP Memorandum's claim that the Trump Dossier provided the main evidence used to obtain the FISA warrant authorising surveillance of Carter Page.
Before discussing this there is however one fact about the way the Democrats' Memorandum discusses the Trump Dossier which I wish to make.
The trap the Democrats are in over the Trump Dossier
The Democrats together with the other supporters of the Russiagate conspiracy theory find themselves in a trap.
The key point that the GOP Memorandum makes is that the Justice Department and the FBI obtained from the FISA court a warrant to carry out surveillance of Carter Page on the basis of the Trump Dossier notwithstanding that the Trump Dossier was (1) unverified and (2) "political research" paid for by the Democratic National Committee and the Hillary Clinton campaign, with the Justice Department and the FBI failing to inform the FISA court about (1) and (2). The GOP Memorandum argues that this omission led to serious violations of due process.
In responding the Democrats want to deny that any violations of due process took place. In order to do this they seek to downplay the importance of the Trump Dossier in the various applications for the FISA warrant and for the renewal of the FISA warrant.
The Democrats have to do this since the Justice Department and the FBI have admitted that the Trump Dossier is unverified. That calls into question whether - if the FISA court had been told that the Trump Dossier was unverified - a FISA warrant would have been granted. Since the Democrats want to argue that it would have been granted, they are obliged to downplay the Trump Dossier's importance in obtaining the FISA warrant.
However at the same time that the Democrats seek to downplay the importance of the Trump Dossier in obtaining the FISA warrant, they cannot bring themselves to repudiate the Trump Dossier entirely.
That is because, unverified though the Trump Dossier is, it remains the main - in fact so far the only - actual evidence of collusion between the Trump campaign and Russia.
The result is that the Democrats' Memorandum is obliged at one and the same time to argue that the Trump Dossier (1) played only a minor role in the applications to obtain and renew the FISA warrant (2) but has nonetheless been 'substantiated' and is therefore true.
It is the need to reconcile these two contradictory claims - the second of which is of course untrue - which explains why the Democrats' Memorandum is - unlike the GOP Memorandum - such a long and convoluted document.
Use of the Trump Dossier in obtaining the FISA warrant
The attempt to minimise the role of the Trump Dossier in obtaining and renewing the FISA warrant in fact fails from the start.
On this point I can do no better than quote Byron York, whose discussion of this point is masterly
Democrats say, the Justice Department "met the rigor, transparency, and evidentiary basis needed to meet the FISA's probable cause requirement" for a warrant on Page. Democrats say the Justice Department provided the court with four categories of information that together were "a multi-pronged rationale for surveilling Page." The four categories are:To which I would only add what I have said previously, which is that the issue of Carter Page's previous history is in the context of the issues discussed by the GOP Memorandum a red herring.
* contemporaneous evidence of Russia's election interference;
* concerning Russian links and outreach to Trump campaign officials;
* Page's history with Russian intelligence; and
* [redacted] Page's suspicious activities in 2016, including in Moscow.
Remember that the standard for winning a warrant to wiretap a U.S. citizen in the United States is quite high, and that the purpose of the warrant application was to convince the FISA judges that Page specifically, not the Trump campaign generally or any group of people, was a Russian agent and was likely violating the law.
The first bullet point, about "Russia's election interference" - a reference to, say, evidence of Russian hacking of the Democratic National Committee or Russian internet trolling - doesn't say anything about Carter Page.
The second bullet point, an apparent reference to Russian contacts with George Papadapoulos, also doesn't say anything about Page.
The third category, referring to Page's business history in Moscow in the 2000s, and more specifically a 2013 case in which Russian agents tried unsuccessfully to recruit him, does of course focus on Page. As I wrote this month, by several accounts, Page's history was not a big part of the FISA application, but it was a part, and House Republicans should have included that fact in their memo. On the other hand, Page's history was history; it was not new in October 2016, when the first warrant was granted, and it's not clear why it would have triggered the DOJ to ask for, or the FISA court to approve, a wiretapping warrant.
The Democrats' fourth and last bullet point, referring to "Page's suspicious activities in 2016, including in Moscow," seems to be the category that would have given the warrant application its punch. Unlike the other bullets, it was both new and about Page specifically. And sure enough, it is the category in which Democrats concede that the Steele dossier was used.
The purpose of the GOP Memorandum was to identify the repeated and serious violations of due process which it says took place when the surveillance warrant against Carter Page was obtained and renewed.
The inclusion of background information about Carter Page's past in the application for the surveillance warrant was not a violation of due process.
It does not therefore form part of the subject matter that the GOP Memorandum was written about. The GOP Memorandum was therefore right not to mention it.
Democrats' attempts to give credence to the Trump Dossier
As to the Democrats' Memorandum's attempt to give credence to the Trump Dossier, Byron York is equally masterly and here is what he has to say about that
Democrats write that "In subsequent FISA renewals, DOJ provided additional information obtained through multiple independent sources that corroborated Steele's reporting."To which I would add that the three blanked out paragraphs in the Democrats' Memorandum which Byron York refers to are a classic exercise in obfuscation.
First, that says DOJ did not provide such information in the original warrant. Then, the sentence is followed by three bullet-point paragraphs which are entirely blacked out. We don't know what they say, but the summary sentence seems to suggest that after the original warrant was granted, the Justice Department verified Steele's allegations.
That is not what the Justice Department and FBI have told congressional investigators. Indeed, in a response Saturday evening, House Intelligence Committee Republicans said, "At the time of the initial application, all of the Steele dossier's specific claims about Page - including that he met with Igor Sechin and Igor Divyekin in Moscow in July 2016 - were uncorroborated by any independent source, and they remain unconfirmed."
Adam Schiff - the author of the Democrats' Memorandum - would of course have known before he wrote the Memorandum that if he inserted classified material into these three paragraphs they would have to be redacted and would be blanked out.
That however is what he did, knowing that that is what would happen, and that must therefore be what he wanted when he wrote the paragraphs.
In other words Schiff wrote three paragraphs into the Democrats' Memorandum in support of a sentence ("In subsequent FISA renewals, DOJ provided additional information obtained through multiple independent sources that corroborated Steele's reported") knowing they would be blanked out.
Frankly that looks to me like an attempt to convey an impression that there is 'evidence' which corroborates the Trump Dossier when of course we know that there is actually none.
That the allegations of 'kompromat' and collusion in the Trump Dossier have not been verified is in fact indisputable.
Needless to say if they had been verified there would have been indictments that referred to the fact by now, and we would not be having this discussion.
As it happens - and as Byron York says - there have been multiple admissions by senior officials of the Justice Department and of the FBI that the allegations of 'kompromat' and collusion in the Trump Dossier have not been verified.
It is misleading and mendacious of Adam Schiff and of the Democrats to suggest otherwise. The reason they did so is because of the trap they find themselves in which I discussed above.
Before leaving the subject of the precise role of the Trump Dossier in the application for the FISA warrant, I would say that Byron York makes a further interesting point, which is that the Democrats seem to have dropped their claim that the GOP Memorandum misrepresents what former FBI Deputy Director Andrew McCabe told Congress, and that he did not actually say - as the GOP Memorandum alleges - that without the information from the Trump Dossier the FISA warrant would not have been granted
Speaking of McCabe, a big controversy surrounding the original Republican memo was the assertion that McCabe "testified before the committee in December 2017 that no surveillance warrant would have been sought from the [FISA court] without the Steele dossier information." Democrats immediately denounced that statement as false. "He didn't say that," Intelligence Committee member Eric Swalwell told CNN on the day the Republican memo was released.In my opinion McCabe's opinion about the precise weight the FISA Judge gave to the evidence that was drawn from the Trump Dossier is a red herring.
Now, however, the Democratic memo makes no statement one way or the other about McCabe's assertion. Does that mean, then, that the Republican memo accurately characterized what McCabe said? Without the interview transcript, it's impossible to say. But it does mean that in their official, considered rebuttal, Democrats are not challenging it.
Since McCabe is not the FISA Judge he cannot know what weight the FISA Judge gave to what evidence was put in front of him, and McCabe's opinion on the question is no more than his guess.
Nonetheless it is interesting that the Democrats have quietly dropped this assertion they were making so publicly and so insistently just a few weeks ago.
In summary, it is now clear that the allegations of 'kompromat' and collusion in the Trump Dossier did play the key role in securing the FISA warrant authorising surveillance of Carter Page.
Byron York's summary is again masterly, and I have nothing to add to it
In sum, it appears that of the four bullet points listed by Democrats to support the most important assertion in their memo, three would not be sufficient to win a warrant on Page, and the fourth is - yes - the unconfirmed allegations in the dossier. Democrats say the FISA warrant application made just "narrow" use of the dossier, while Republicans say the application made extensive use of the dossier. (And not just Republicans on the House Intelligence Committee, but also the Senate Judiciary Committee, which conducted a separate investigation and concluded the dossier's allegations made up "the bulk" of the application.) We won't know who is right definitively until the application is released to the public, but it seems hard to believe a warrant would have been approved absent the dossier's allegations. (bold italics added)Claims of violations of due process in GOP Memorandum
The GOP Memorandum is not concerned with whether the allegations of 'kompromat' and collusion in the Trump Dossier are true.
It is concerned with whether there were violations of due process in obtaining and renewing the FISA warrant authorising surveillance of Carter Page.
Those violations of due process alleged by the GOP Memorandum are these (see my previous article)
(1) The FISA court was not told that the Trump Dossier was only 'minimally verified';
(2) The FISA court was not told about the 'political origins' of the Trump Dossier or in the applications to renew the warrant that it was paid for by the Democratic National Committee and by the Hillary Clinton campaign; and
(3) The FISA court on the occasion of the first application for the FISA warrant was not told about the extreme bias of Christopher Steele - the Trump Dossier's compiler - against Donald Trump; and
(4) The FISA court was not told that there was no known connection between George Papadopoulos and Carter Page despite information about the activities of Papadopoulos being used in the application to obtain the warrant.
What does the Democrats' Memorandum have to say about these four violations which the GOP Memorandum says took place?
Failing to inform FISA court that Trump Dossier was only 'minimally verified'
This is by far the most serious violation of due process alleged in the GOP Memorandum, and remarkably the Democrats' Memorandum actually confirms it.
It is at this point that the problems of the trap the Democrats have fallen into in relation to the Trump Dossier become manifest.
Since the Democrats cannot bring themselves to repudiate the Trump Dossier they cannot bring themselves to admit that the Trump Dossier - whether at the time of the original application for the FISA warrant or at the time of any of the subsequent applications to renew the warrant - had been only 'minimally verified'.
Instead they have to pretend that the Trump Dossier was in some corroborated (see above), making it not only appropriate for the Justice Department and the FBI to rely on it, but even putting them under a duty to do so.
The result is that the Democrats' Memorandum does not respond to the claim in the GOP Memorandum that the FISA court was not told that the Trump Dossier was only 'minimally qualified'.
On the contrary much of the Democrats' Memorandum consists of lengthy arguments for why the Justice Department and the FBI were right to believe in the claims of 'kompromat' and collusion made in the Trump Dossier, and why they were therefore right to rely on it.
Needless to say that effectively admits that the GOP Memorandum's single most important point - that the FISA court was not told that the Trump Dossier had been only 'minimally verified' - is true.
The Democrats' Memorandum has therefore conceded the single most serious claim of violation of due process in the GOP Memorandum.
Failing to inform the FISA court of the 'political origins' of the Trump Dossier and that it was paid for by the DNC and the Hillary Clinton campaign
The wording of the GOP Memorandum is unambiguous on this point and here is what it says.
- The "dossier" compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application. Steele was a longtime FBI source who was paid over $160,000 by the DNC and Clinton campaign, via the law firm Perkins Coie and research firm Fusion GPS, to obtain derogatory information on Donald Trump's ties to Russia.(1) Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele's efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials.
- (2) The initial FISA application notes Steele was working for a named U.S. person, but does not name Fusion GPS and principal Glenn Simpson, who was paid by a U.S. law firm (Perkins Coie) representing the DNC (even though it was known by DOJ at the time that political actors were involved with the Steele dossier). The application does not mention Steele was ultimately working on behalf of-and paid by-the DNC and Clinton campaign, or that the FBI had separately authorized payment to Steele for the same information.
DOJ was transparent with Court about Steele's sourcing: The Committee Majority, which had earlier accused Obama administration officials of improper "unmasking", faults DOJ for not revealing the names of specific US persons and entities in the FISA application and subsequent renewals. In fact, DOJ appropriately upheld its longstanding practice of protecting US citizen information by purposefully not "unmasking" US person and entity names, unless they were themselves the subject of a counterintelligence investigation. DOJ instead issued generic identifiers that provided the Court with more than sufficient information to understand the political context of Steele's research. In an extensive explanation to the Court, DOJ discloses that SteeleThe first point to make about these words is that they are in fact an admission that the Justice Department and the FBI did not tell the FISA court either on the occasion of the original application for the surveillance warrant or during any of the subsequent applications to renew the surveillance warrant that the applications were based on 'research' (ie. the Trump Dossier) which had been paid for by the DNC and by the Hillary Clinton campaign.
was approached by an identified U.S. Person, who indicated to Source #1 [Steele] that a U.S.-based law firm had hired the identified U.S. Person to conduct research regarding Candidate #1's ties to Russia. (The identified U.S. Person and Source #1 have a long-standing business relationship.) The identified U.S. Person hired Source #1 to conduct this research. The identified U.S. person never advised Source #1 as to the motivation behind the research into Candidate #1's ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1's campaign (bold and Italics lettering in the original)
On this key point the Democrats' Memorandum has conceded that the GOP Memorandum is correct.
The Democrats try to get round this by an extraordinary and in my opinion disingenuous sleight of hand.
They use the confidentiality protections provided to US citizens who find themselves innocently caught up in counterintelligence operations in order to justify the failure to disclose to the FISA court the identities of the persons behind the Trump Dossier ie. of Fusion GPS, the Hillary Clinton campaign and the DNC.
This is wholly wrong.
Let me at this point reiterate again the key point about the duty lawyers owe to the Court which I made previously in my article in which I discussed the GOP Memorandum
Lawyers' duty to act in good faith and not to mislead the CourtThe fact that the information in the various applications that were made both to obtain and to renew the FISA warrant was drawn from a Dossier paid for by the DNC and the Hillary Clinton campaign was a highly material fact which the Justice Department and the FBI should certainly have disclosed to the FISA court as soon as they became aware of it.
Before proceeding further it is necessary to say that the overriding duty of lawyers is to the Court, and that they must never intentionally mislead the Court.
It is not only a grave abuse for them to do so, but it is actually the criminal offence of contempt of Court.
The duty of lawyers - who are officers of the Court - to act at all times in good faith when addressing the Court is an essential part of due process.
Needless to say the lawyers' duty not to mislead the Court becomes greater still if the proceedings are conducted in secret with the Defendant not informed of the proceedings and not represented or present at the hearing during which the proceedings are decided.
At that point the lawyer's duty is not only to provide the Court with all the information which supports the application the lawyer is making, but also to provide the Court with all the information which might cause the Court to decide that the Order sought against the Defendant should not be made. (bold italics added)
Had the FISA Judge been told this information, and had the FISA Judge also been told that the Dossier from which the information was drawn was only 'minimally verified' (see above) it is all but inconceivable in my opinion that he would have granted or renewed the warrant.
As such the Justice Department and the FBI were under a duty to disclose this information, regardless of whatever practice to afford confidentially protections might normally apply, and it was a very serious violation of due process that they failed to do so.
If disclosing this information required going against normal practice to apply confidential protections, then because of the special factors in this case, and in order to ensure that the application for the FISA warrant was decided properly, I personally have no doubt that the duty of full disclosure applied and overrode the practice.
Having said this, I am personally wholly unable to see how Fusion GPS, the DNC and the Hillary Clinton campaign can in any possible way be considered persons innocently caught up in a counterintelligence operation to whom these confidentiality protections should apply.
The 'research' which resulted in the Trump Dossier was itself a kind of intelligence operation in which Fusion GPS, the DNC and the Hillary Clinton campaign were actively involved. Christopher Steele is in the business of intelligence and is a former spy.
Since Fusion GPS and Steele were themselves proffering the results of their 'research' to the FBI, I cannot see how it is possible to say that they were entitled to the same confidentiality protections as US citizens innocently caught up in a counterintelligence operation of which they would normally be expected to have no knowledge.
To reiterate: it is one thing not to disclose recklessly the names of people who might be caught up innocently in a counterintelligence operation for example in internal administrative documents which might one day be released to the public.
It is an entirely different matter to fail to disclose the identities of persons to the Court when those identities are themselves an important material fact in the case.
This whole argument the Democrats' Memorandum is making is a bad one. Frankly I doubt the Democrats themselves believe it and I doubt that it is made in good faith.
What of the convoluted paragraph in the original application for the FISA warrant which the Democrats have quoted in their Memorandum?
In my opinion this paragraph comes nowhere close to fulfilling the obligation of full disclosure which the Justice Department and the FBI owed to the FISA court.
The key words - "The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1's campaign (bold italics added)" - merely states the obvious and would have told the FISA Judge nothing he would not have already worked out for himself.
In no sense do these words hint at the truth - which by the time of at least some of the applications to renew the warrant was known to the Justice Department and to the FBI - that the Trump Dossier was paid for by Donald Trump's electoral opponents ie. by the DNC and the Hillary Clinton campaign.
Nor do these words disclose the critically important fact that the "identified US Person" (Fusion GPS) is a political consultancy known to carry out political research on behalf of - amongst others - the Democratic Party.
Knowledge of that fact surely raised the question of whether the Trump Dossier was the product of research intended to discredit Donald Trump's campaign above the level of mere "speculation" ("the FBI speculates") to one of certain knowledge.
Yet the words used are "speculates" and "likely" implying that the question was open, when in fact it was not.
In summary the Democrats' Memorandum essentially concedes the second claim of violation of due process set out in the GOP Memorandum.
The Justice Department and the FBI did not tell the FISA court that the information upon which the application for the original FISA warrant and the subsequent applications to renew the warrant was based was 'research' paid for by the DNC and by the Hillary Clinton campaign, even after that fact became known to them.
Nor at the time that the original application for the FISA warrant was made did the Justice Department and the FBI clearly tell the FISA court that the information had a 'political' origin even though that fact was known to them.
Instead the Justice Department and the FBI misled the FISA court by telling the FISA court - in a single sentence at the end of a convoluted paragraph - that the fact that the information had been obtained in order to discredit Trump's campaign was merely "speculation" when in reality they knew it was true.
Failing to disclose to the FISA court Christopher Steele's extreme bias against Donald Trump
Again the wording of the GOP Memorandum on this point is unambiguous
Shortly after the election, the FBI began interviewing Ohr, documenting his communications with Steele. For example, in September 2016, Steele admitted to Ohr his feelings against then-candidate Trump when Steele said he "was desperate that Donald Trump not get elected and was passionate about him not being president." This clear evidence of Steele's bias was recorded by Ohr at the time and subsequently in official FBI files-but not reflected in any of the Page FISA applications.In my discussion of the GOP Memorandum here is what I said about this
.....The GOP memorandum says [...] that the lawyers representing the Justice Department and the FBI should have told the FISA court about Steele's political bias because it was an important fact bearing on the weight the FISA court should attach to his evidence.What does the Democrats' Memorandum have to say about this?
That is obviously right, and if the FISA court was not told about it then it was a serious breach of the lawyers' duty to the Court and of due process.
The answer is virtually nothing.
The discussion of Christopher Steele starts promisingly enough
Far from "omitting" material facts about Steele, as the Majority claims, DOJ repeatedly informed the Court about Steele's background, credibility and potential bias. (bold italics added)Having however brought up the question of Steele's bias at the very end of this sentence, the rest of the Democrats' Memorandum has however absolutely nothing further to say about it.
It provides no information about when and in what manner information about Steele's bias was provided to the FISA court.
Nor does it contradict the GOP memorandum's claim that the words showing his bias which Steele spoke to Bruce Ohr were never passed on by the Justice Department to the FISA court.
Instead there are long irrelevant discussions about what the FISA court was told about Steele's misconduct, and there is also a minor and irrelevant encomium of Bruce Ohr ("Bruce Ohr is a well-respected career professional whose portfolio is drugs and organised crime, not counterintelligence").
As to the question of what the FISA court was told about Steele's misconduct, the Democrats' Memorandum is misrepresenting the GOP Memorandum, which has never claimed that this information was not provided to the FISA court.
I discussed this at length previously in my article about the GOP Memorandum
No section of the GOP memorandum has been the subject of more misrepresentation than the part in which it makes its claims about Christopher Steele.It is now clear that the Democrats have hit on the device of misrepresenting what the GOP Memorandum has to say about Steele's misconduct in order to divert attention away from the fact the FISA court was never told about Steele's strong bias against Donald Trump.
As I have said previously, the primary concern of the GOP memorandum is with the gross violations of due process caused by the failure of the lawyers who acted for the Justice Department and the FBI to disclose material facts about the evidence they were relying upon when they made their application for a surveillance warrant against Carter Page to the FISA court.
Critics of the GOP memorandum are now claiming that the GOP memorandum misrepresents the facts about Christopher Steele by implying that the lawyers who acted for the Justice Department and the FBI did disclose his misconduct to the FISA court.
The critics claim that Steele's misconduct was disclosed to the FISA in the renewal applications for the FISA warrant after the full truth of his misconduct had come to light.
This is all totally wrong. The GOP memorandum does not say that the FISA court was not told about Steele's misconduct after it came to light. Once again its words need to be read carefully
- Steele was suspended and then terminated as an FBI source for what the FBI defines as the most serious of violations - an unauthorized disclosure to the media of his relationship with the FBI in an October 30, 2016, Mother Jones article by David Corn. Steele should have been terminated for his previous undisclosed contacts with Yahoo and other outlets in September - before the Page application was submitted to the FISC in October - but Steele improperly concealed from and lied to the FBI about those contacts.
- Steele's numerous encounters with the media violated the cardinal rule of source handling - maintaining confidentiality - and demonstrated that Steele had become a less than reliable source for the FBI.
- Before and after Steele was terminated as a source, he maintained contact with the DOJ via then-Associate Deputy Attorney General Bruce Ohr, a senior DOJ official who worked closely with Deputy Attorneys General Yates and later Rosenstein. Shortly after the election, the FBI began interviewing Ohr, documenting his communications with Steele. For example, in September 2016, Steele admitted to Ohr his feelings against then-candidate Trump when Steele said he "was desperate that Donald Trump not get elected and was passionate about him not being president." This clear evidence of Steele's bias was recorded by Ohr at the time and subsequently in official FBI files - but not reflected in any of the Page FISA applications.
- During this same time period, Ohr's wife was employed by Fusion GPS to assist in the cultivation of opposition research on Trump. Ohr later provided the FBI with all of his wife's opposition research, paid for by the DNC and Clinton campaign via Fusion GPS. The Ohrs' relationship with Steele and Fusion GPS was inexplicably concealed from the FISC.
These words make it clear that information about Steele which was not disclosed to the FISA court was information about (1) who was paying him; and (2) his bias against Donald Trump.
- According to the head of the FBI's counterintelligence division, Assistant Director Bill Priestap, corroboration of the Steele dossier was in its "infancy" at the time of the initial Page FISA application. After Steele was terminated, a source validation report conducted by an independent unit within FBI assessed Steele's reporting as only minimally corroborated. Yet, in early January 2017, Director Comey briefed President-elect Trump on a summary of the Steele dossier, even though it was - according to his June 2017 testimony - "salacious and unverified." While the FISA application relied on Steele's past record of credible reporting on other unrelated matters, it ignored or concealed his anti-Trump financial and ideological motivations. (bold in the original; bold italics added)
The GOP memorandum by contrast does not say that the FISA court was not told over the course of subsequent renewals of the FISA warrant about Steele's misconduct.
What the GOP memorandum says is that FBI Director James Comey did not tell Donald Trump during their meeting on 8th January 2017 - the meeting when James Comey first showed the Trump Dossier to Donald Trump - that "a source validation report conducted by an independent unit within the FBI assessed Steele's reporting as only minimally corroborated".
This was a further very serious violation of basic principles of fairness and due process, since Donald Trump was thereby led by Comey to think that the evidence that he had been compromised by the Russians was much stronger than it actually was.
This is of course a straw man argument, and is not the only one the Democrats' Memorandum engages in (see below).
It appears that despite the one reference to Steele's bias in a single sentence in the Democrats' Memorandum, the claim in the GOP Memorandum that the evidence of Steele's bias was not passed on to the FISA court is not being contested. That makes it highly likely that it is true.
Given that this is so, it appears that the GOP Memorandum is probably right, and that the FISA court was not told about Steele's bias, and that there was a further serious violation of due process.
Failing to inform FISA court of absence of connection between Carter Page and George Papadopoulos
The GOP Memorandum contains only two sentences which mention Papadopoulos
The Page FISA application also mentions information regarding fellow Trump campaign advisor George Papadopoulos, but there is no evidence of any cooperation or conspiracy between Page and Papadopoulos. The Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok.By contrast the Democrats' Memorandum has reams of things to say about Papadopoulos, most of them irrelevant to the point the GOP Memorandum is making.
This includes a major misrepresentation of the GOP Memorandum.
The Democrats' Memorandum falsely implies that the GOP Memorandum alleges that the Russiagate investigation was triggered by the Trump Dossier whereas in reality what triggered the Russiagate investigation was the information about Papadopoulos.
This is completely wrong. Byron York once again explains why
The next big point is a refutation of an assertion that Republicans did not make in their original memo. The Democratic memo says at one point that, "Christopher Steele's raw intelligence reporting did not inform the FBI's decision to initiate its counterintelligence investigation in late July 2016." At another point in the memo, Democrats say that "Steele's reporting...played no role in launching" the investigation.There is in fact a great deal that can be said about what it was exactly which triggered the start of the Russiagate investigation. As this is a very complex subject of no bearing to the issues discussed here, I shall discuss it in a later article.
But the Republican memo did not say that it did. Indeed, the GOP memo said, "The Papadopoulos information triggered the opening of of an FBI counterintelligence investigation in late July 2016..." There is some debate about the precise beginning of the FBI investigation, and whether it is of much importance given later reliance on the dossier. But the fact is, the Republican memo did not claim that Steele's raw intelligence informed the decision to begin the investigation. So the Democratic memo has knocked down a straw man.
Returning to what the GOP Memorandum actually says about Papadopoulos, here is what I said about it in my article in which I discussed the GOP Memorandum
In fact it is not difficult to see what the point was that the original author of the GOP memorandum - ie. Representative Gowdy - was making in this paragraph.The Democrats' Memorandum purports to respond to this point in a partially redacted paragraph as follows
Gowdy's point was that the other 'evidence' provided to the FISA court in support of the application for the surveillance warrant was the information provided by the Australian government that George Papadopoulos had blurted out in the Australian ambassador's presence in a London bar that 'the Russians had dirt on Hillary Clinton'.
However, as the GOP memorandum - ie. Gowdy - at this point says, this information was actually irrelevant in any application for a surveillance warrant against Carter Page because "there is no evidence of any cooperation or conspiracy between Page and Papadopoulos".
If the Justice Department's and the FBI's lawyers sought to use the information about Papadopoulos to support their application to the FISA court for a warrant to carry out surveillance of Carter Page, then they were under a duty to inform the FISA court that there was no evidence of "cooperation or conspiracy" between Papadopoulos and Page.
Apparently they did not do this, leading to a further violation of due process in the application for the warrant against Carter Page.
DOJ appropriately provided the Court with a comprehensive explanation of Russia's election interference, including evidence that Russia courted another Trump campaign advisor, Papadopoulos, and that Russian previewed their hack and dissemination of stolen emails (NB: this most likely refers to the activities of the persona known as Guccifer 2.0 - AM). In claiming that there is "no evidence of any cooperation or conspiracy between Page and Papadopoulos", the Majority misstates the reason why DOJ specifically explained Russia's courting of Papadopoulos. Papadopoulos's interaction with Russian agents, coupled with real-time evidence of Russian election interference, provided the Court with a broader context in which to evaluate Russia's clandestine activities and Page's history and alleged contact with Russian officials. Moreover, since only Page [.............], no evidence of a separate conspiracy between him and Papadopoulos was required. DOJ would have been negligent in omitting vital information about Papadopoulos and Russia's concerted efforts. (bold highlighting in the original)This is yet another straw man argument.
The GOP Memorandum in fact does not say or imply that the Justice Department and the FBI were wrong to bring up the subject of Papadopoulos in their application for a FISA warrant. No doubt this information did provide useful background information to the Judge, and no one is saying it should have been excluded.
The point however that the GOP Memorandum is making is that since there was "no evidence of cooperation or conspiracy between Page and Papadopoulos" the evidence about Papadopoulos was not evidence against Page.
The implication - as I have previously pointed out (see above) - is that the Justice Department - if it was going to include the evidence about Papadopoulos in its application for a FISA warrant authorising surveillance of Page - should have told the FISA court that there was no evidence of "cooperation or conspiracy" between Papadopoulos and Page, so that the evidence about Papadopoulos was not evidence against Page.
It seems from the Democrats' Memorandum that the Justice Department did not tell the FISA court this, in which case - as I discussed previously (see above) - this was a further serious violation of due process.
Summary
The Democrats' Memorandum is actually an extraordinary document.
There is no doubt about the high intelligence and great political and legal skill of its author: Adam Schiff. However in setting out to refute the case made in the GOP Memorandum - that there were very serious violations of due process in the handling of the application to the FISA court for a surveillance warrant of Carter Page his Memorandum - if analysed properly - turns out to do the opposite: it concedes the entire case.
It effectively admits that information from the Trump Dossier was the key evidence used in the application for the FISA warrant authorising surveillance of Carter Page.
It does not deny that the FISA court was not told that the Trump Dossier upon which the application for the FISA warrant was based was only 'minimally verified'.
It does not deny that the FISA court was never told that the Trump Dossier was paid for by the DNC and the Hillary Clinton campaign.
Nor does it deny that the FISA court was never told that there was no evidence of 'cooperation or conspiracy' between Carter Page and George Papadopoulos.
The Democrats' Memorandum does try to deny the GOP Memorandum's claim that the FISA court was not told about the 'political origins' of the Trump Dossier.
However the evidence it cites in support - a single sentence in a convoluted paragraph in the original application for the FISA warrant - does not support the argument it is making. On the contrary it refutes it (see above).
The Democrats' Memorandum does also in one place in one sentence seem to deny the claim in the GOP Memorandum that the FISA court was not told about Christopher Steele's strong anti-Trump bias.
However it never follows up on this, providing no information to support that denial (if denial it is) leaving the original claim in the GOP Memorandum uncontested.
The only conclusion possible from all these admissions, absences of denial, straw man arguments, and non sequiturs, has to be that the GOP Memorandum is right, and that serious violations of due process did take place.
In order to conceal this fact the Democrats' Memorandum seeks to bury it under a mountain of verbiage and by creating a maze of false trails.
All I would say about that is that whilst this can be a very effective tactic in journalism and politics, it is one which is likely to fall apart in a Court, assuming of course that this case ever goes to Court, as it undoubtedly should.
The one qualification I must make is that Representative Adam Schiff - the person who drafted the Democrats' Memorandum - is obviously not a representative of the Justice Department or of those individuals involved in the alleged violations. They may have quite different things to say if they are ever put in a position where they have to justify their conduct.
Until that point comes we have however only the two Memoranda: the GOP Memorandum and the Democrats' Memorandum.
Based on what they both tell us the Justice Department and the FBI have a very strong case to answer.
America's choice
The American People and their political elite now have a choice.
They can continue with the Mueller investigation, which has just produced an indictment against a bunch of Russian internet trolls whose activities achieved precisely nothing, and who because they are located in a place which is far beyond the US's reach will likely never be put on trial.
Or they can focus their attention and energy on clearing out the extraordinary malpractice which it seems exists at the highest level of their justice system and in their most important law enforcement agency.
They might also in that case wish to follow up the indications of serious abuse of power at the top of their political system which appears to have given rise to this malpractice.
If the decision was mine to make I have no doubt which is by far the more serious matter.
The decision however is not mine to make. However it is upon that decision that the future of the American Republic depends.
It is America's choice.
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