...Press stories, based on unnamed sources who’ve seen a draft of the IG’s magnum opus, indicate that Horowitz will conclude that the FBI attorney’s document tampering did not affect the overall validity of the warrant application.
I presume this means it was not make-or-break on the issue of probable cause. Under federal jurisprudence, false information does not necessarily invalidate a warrant. Instead, the warrant is deemed valid if, were the false information stripped out, the remaining information would still have been sufficient to establish probable cause.
It should go without saying by now that what’s being reported is but a fraction of the problematic information provided to the FISC. I would briefly rehearse four points:
1. The Steele-dossier claims formed a substantial basis for the warrant application. McCabe has assessed that there would not have been probable cause without them; others have indicated that it was a 50–50 proposition, at best. It is impossible for us to make a judgment about this without knowing the totality of the non-dossier information.
2. What we do know is not reassuring. While much has been made of the Steele dossier’s blatant unreliability, not enough attention has been paid to another matter on which the FBI and DOJ relied: the attempts by Russian spies to recruit Page as an asset between 2008 and 2013.
The government made much of this in the warrant application. Downplayed, however, were the facts that Page cooperated with the government in the prosecution of the spies; that the Justice Department used Page’s information in its arrest complaint; that Page submitted to numerous interviews by the federal investigators, including as late as spring 2016, when (according to Page) he was being prepared to testify as a government witness, which testimony became unnecessary when the spy pled guilty; and that the Russian spies against whom he cooperated regarded him as an “idiot” in communications intercepted by the feds.
Did the FBI tell the FISC everything it should have been told about the spy case? If so, what made the FBI believe that Russia, with its highly competent intelligence services supposedly in a high-stakes conspiracy with Trump, would trust as a key conspirator a man who (a) the Kremlin believed was incompetent and (b) had helped the U.S. prosecute the Kremlin’s operatives?
3. The FBI’s many interviews with Page are highly relevant. So is the fact that, while the FBI was pushing for the warrant, Page — in reaction to the Steele-generated negative publicity against him — fired off a letter to FBI director James Comey, pleading to meet with agents in order to assuage any concerns they might have about his contacts with Russians.
As I’ve pointed out a number of times, federal law requires agents seeking an eavesdropping warrant to explain to the court why less intrusive alternative investigative techniques would not be adequate to obtain the information they claim to need. Why did the FBI and DOJ believe they needed an eavesdropping warrant enabling them to monitor all of Page’s communications (and to review prior stored texts, emails, and phone messages), if Page was more than willing to submit to an interview — under circumstances where there was a long history of such interviews, and where the government had found Page’s information sufficiently credible to rely onit in an arrest complaint (and to prepare him to testify as a government witness, Page says)?
What did the FBI and DOJ tell the court about why interviewing Page would not adequately serve their purposes?
4. Much of the information offered as probable cause involved Russia’s history of anti-American operations and its cyber-meddling in the 2016 election. These matters are not in dispute, but they do not mean that Carter Page and the Trump campaign were complicit as clandestine agents of the Putin regime.
This last point brings us back to the question raised earlier: Are the investigators and their media allies laying the groundwork to argue that, because Russia did interfere in the 2016 campaign, any “mistakes” in using FISA or other investigative tactics do not detract from the overall validity of the investigation?
If evidence tampering by a low-ranking FBI lawyer ended up making no difference to the validity of the Carter Page FISA warrants, that is hardly the stuff of scandal. It would be small-scale misconduct of the kind that unavoidably happens from time to time, and that the government has handled appropriately — by forcing the culprit out of the FBI and referring him to U.S. attorney Durham for possible prosecution.
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On the other hand, if the Horowitz report is going to take the tack
that, because Russia did in fact meddle in the 2016 campaign, any
investigative overreach amounts merely to regrettable but understandable
overzealousness, that would be a very big deal — and not in a good way.The question is not whether Russia meddled. On four separate occasions, the FBI and the Justice Department solemnly told the FISC there were grounds to believe that Carter Page and others in the Trump campaign, potentially including Donald Trump himself, were complicit in a criminal conspiracy with the Kremlin. The question is: What was their compelling basis for making that explosive representation, which breached the American norm against government intrusion in our political process?
