by Diane Rufino, Feb. 4, 2018
The Nunes Memo highlights just how easy it is to spy on an American citizen, and even a candidate for the highest office of the land, when the administration in DC is politicized enough and when it becomes corrupted by political ambition. This should scare everyone.
I. WATERGATE –
Richard Nixon won the presidency in 1968 in a tight contest with Democratic nominee, Hubert H. Humphrey. During that election, he ran as a moderate candidate, pledging to end the war in Vietnam with honor and to make a clean break from the controversial administration of Lyndon Johnson, his predecessor. By 1972, Nixon remained popular with most Americans and was expected to defeat his opponent, Senator George McGovern.
On June 17, 1972, two police officers responded to a report of a break-in at the Watergate, a hotel and office complex in Washington, D.C. where many political professionals lived and worked. That year, it was also the home of the Democratic National Committee (DNC). When the police arrived and entered the fifth-floor offices of the DNC, they surprised five men carrying surveillance devices they were trying to attach to the office phones. One of the men was James McCord, a former employee of the CIA and a Republican Party aide. In the address books of two of the burglars, police found the name H. Howard Hunt, a former CIA employee who, at the time, was associated with the White House. Over time, it became clear that Hunt was part of a group nicknamed the ‘Plumbers,’ because they stopped political leaks and who’d been conducting a ‘dirty tricks’ campaign against the Democrats for over a year. Their activities included canceling Democratic rallies, spying on candidates, and stealing confidential files.
In a nutshell, here’s what happened in the greatest presidential scandal in U.S. history:
• On June 17, 1972, McCord and four other men working for the Committee to Re-Elect the President (or CREEP — really) broke into the Democratic Party’s headquarters in the Watergate, a hotel-office building in Washington, D.C. They got caught going through files and trying to plant listening devices. Five days later, Nixon denied any knowledge of it or that his administration played any role in it.
• The burglars went to trial in 1973 and either pled guilty or were convicted. Before sentencing, McCord wrote a letter to Judge John Sirica, contending that high Republican and White House officials knew about the break-in and had paid the defendants to keep quiet or lie during the trial
• Investigation of McCord’s charges spread to a special Senate committee. John Dean, a White House lawyer, told the committee McCord was telling the truth and that Nixon had known of the effort to cover up White House involvement.
• Eventually, all sorts of damaging stuff began to surface, including evidence that key documents linking Nixon to the cover-up of the break-in had been destroyed, that the Nixon reelection committee had run a “dirty tricks” campaign against the Democrats, and that the administration had illegally wiretapped the phones of “enemies,” such as journalists who had been critical of Nixon.
• In March 1974, former Attorney. General John Mitchell and six top Nixon aides were indicted by a federal grand jury for trying to block the investigation. They were eventually convicted.
• While Nixon continued to deny any involvement, it was revealed he routinely made secret tapes of conversations in his office. Nixon refused to turn over the tapes at first, and when he did agree (after firing a special prosecutor he had appointed to look into the mess and seeing his new attorney general resign in protest), it turned out some of them were missing or had been destroyed. (They were also full of profanity, which greatly surprised people who had an entirely different perception of Nixon.)
• In the summer of 1974, the House Judiciary Committee approved articles of impeachment against the president for obstructing justice.
The Watergate scandal hinged on a pivotal question posed by U.S. Senator Howard Baker during a senate hearing: ‘What did the President know, and when did he know it? While it has never been proven that Nixon knew about the planning of the break-in or even of the break-in itself when it happened, it was his part in the cover-up that sealed his fate. The tapes clearly showed Nixon had been part of the cover-up. On August 8, 1974, he submitted a one-sentence letter of resignation, and then went on television and said, “I have always tried to do what is best for the nation.” He was the first and, so far, only U.S. president to quit the job.”
II. THE SURVEILLANCE (FISA) ABUSES UNDER THE OBAMA ADMINISTRATION –
In a nutshell, the surveillance abuses under the Obama administration arose and played out as follows:
Timeline of Events:
January 2013: At an energy conference in New York, Carter Page, who founded an investment company in New York called Global Energy Capital, attended an energy conference (in New York), where he meet Victor Pobodnyy, later determined to be a Russian intelligence agent. Page provided documents to Pobodnyy about his energy business, thinking he was a businessman who could help with brokering deals in Russia. This was according to court documents. The two exchange contact information and have several more meetings discussing energy policy.
[A brief history of Carter Page: After growing up in New York and spending a few years in the navy in the late 1990’s, Page completed a few graduate degrees in International Relations and in Business. Then for most of the 2000’s, he worked at the investment banking firm Merrill Lynch, where he focused on investments related to Russia and Eastern Europe. His work led him to move to Moscow from 2004 – 2007, and it entailed advising Gazprom, the majority Russia state-owned oil firm, on deals. Soon afterwards, he moved back to the US, left Merrill, and went into business for himself, advising investors on Russia-related projects.]
June 2013: Learning about the documents given to Pobodnyy at the conference, the FBI decides to interview Page. But they decide that Page didn’t know Pobodnyy was a spy, and so they don’t charge him with anything. Page is dismissed as being a person of interest. (So why did the FBI later decide to target him again? There is no good answer for this. Refer to the entry below and the entry of July 2016)
Summer 2014: The FBI begins monitoring Page’s communications under a FISA warrant, owing to his 2013 contacts with Pobodnyy.
January 2015: Nunes, a six-term Congressman, becomes chairman of House Intelligence Committee.
January 26, 2015: Pobodnyy and two other Russians are charged with working as agents for Russian intelligence in New York. Court records include a transcript of a recorded conversation in which Pobodnyy talked about trying to recruit someone identified as “Male – 1,” which is later revealed to be Page. But Pobodnyy admits “I think he’s an idiot” in the transcript. Russian intelligence’s interest in Page goes no further.
December 2015: Feeling that the Trump campaign aligns with his ideas on Russia, Page asks Ed Cox, chairman of the NY Republican Party, to recommend him as an adviser. He is brought on right away. “Anyone with a pulse, a resume, and who seemed legit would be welcomed,” a campaign official admitted. Put another way, the only reason the Trump team took Page on was because “they were taking anyone with a pulse.”
March 21, 2016: Trump meets with the editorial board of the Washington Post. Asked about his foreign policy team, he names, among others, Page and George Papadopoulos.
March 2016: In March of 2016, Papadopoulos communicates with a London professor, Joseph Mifsud, who has ties to Russia. Mifsud reportedly tells Papadopoulos that Russia has “dirt” on Democratic presidential nominee Hillary Clinton, and then works with him to try to arrange a meeting between the Trump campaign and Russian officials. [In October, Papadopoulos will plead guilty to lying to the FBI about his attempts to contact Russian officials].
May 2016: In May of 2016, Papadopoulos converses over drinks at a British pub with a top Australian diplomat named Alexander Downer. He tells Downer that he knows that Russia has “dirt” on Hillary Clinton. Two months later, Australia passed this information on to American intelligence officials.
JULY 2016 –
Page joins a group dinner of Trump campaign National Security advisors, including then Senator Jeff Sessions, at the Capitol Hill Club in Washington. He later testifies that he casually told Sessions about an upcoming trip to Russia during dinner. [The trip was tentatively approved by Trump campaign manager, Corey Lewandowki, on the condition that he NOT act as an official representative of the campaign while in Moscow].
Page spends 2 days (July 6-7) in Moscow, where he gives a talk at the New Economic School that is critical of American policy towards Russia and favorable towards Russian president Vladimir Putin.
Receiving the tip from Australian diplomats that George Papadopoulos had bragged about the fact that he knew Russia had dirt on Hillary Clinton, the FBI initiates an investigation into Trump associates’ ties to Russia.
After learning of Page’s trip to Moscow, on July 19, 2016, former British intelligence (M-16) agent Christopher Steele files a report for what become known as his “dossier”; it focused on Page’s Russia trip. This would be the information he uncovered while doing opposition research on behalf of the DNC and the Hillary Clinton campaign. Citing Russian sources (not corroborated), he includes in his dossier:
• That Page had met with Igor Sechin, the CEO of Rosneft, the majority Russian government-owned oil company, and discussed lifting US sanctions
• That Page had also met with Igor Diveykin, a Russian intelligence official, and discussed Russian “kompromat” on Clinton (and Trump)
Around this time, Steele, who has admitted being extremely politicized against Donald Trump and would do anything to prevent him from being president, approaches an FBI agent with this information (more correctly, “rumors”) that he has “uncovered.”
In a later report, dated October 18, 2016, Steele makes an even more astonishing claim: That when Page allegedly met with Sechin, the oil executive had offered Page and Trump’s associates “the brokerage of up to a 19 per cent (privatized) stake in Rosneft in return” for lifting sanctions, and that Page “expressed interest” and confirmed that Trump would lift sanctions if he won.
But, note – and this is VERY IMPORTANT — that in the year and a half since, no one has yet managed to confirm or corroborate any of the claims in Steele’s dossier about Page’s trip. FURTHERMORE, Page has furiously denied the claims, saying that he’s never met either Sechin or Diveykin and disparaging what he calls the “dodgy dossier” both in media appearances and under oath. He continues to deny these claims today.]
*** In fact, Carter Page has filed a Freedom of Information (FOI) request, demanding to know what information the FBI and Justice Department compiled on him and what information they used to request the FISA warrants in order to surveille him. He has not received anything yet.
Back to the Timeline —
August 15, 2016: Just one month into the FBI’s investigation into the Trump campaign regarding ties to Russia, and only two weeks after the FBI had been given a copy of Steele’s anti-Trump dossier, one of the FBI’s top Russian counter-intelligence experts, Peter Strzok spoke of an “insurance policy” in the event that then-candidate Donald Trump was elected president. Strzok sent a text message to his lover, Lisa Paige, a senior FBI attorney, which read: “I want to believe the path you threw out for consideration in Andy’s office – that there’s no way he gets elected – but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40.”
August 29, 2016: Sen. Minority Leader Harry Reid writes a letter to then–FBI Director James Comey calling for an investigation into evidence suggesting that Russia may try to manipulate the results of the 2016 election. In the letter, he cites Page’s trip to Moscow and writes that “questions have been raised” about whether Page met with “high-ranking sanctioned individuals” during the trip. Also in the letter, he indirectly refers to Page’s speech in Moscow criticizing U.S. sanctions policy toward Russia.
Late Summer 2016: The FBI obtains another secret court order from a FISA Court judge to monitor Page’s communications, after convincing the judge that there was probable cause to believe Page was acting as an agent of a foreign power. The FBI waited until the Trump campaign had parted ways with Page to begin surveilling him. [Apparently. the bureau’s renewed interest in him in 2016 is sparked by concerns that Russian intelligence may be continuing to target him for possible use as an asset. Note that since 2013, the FBI had found no evidence that Page was actually being recruited, or that any credible attempts to recruit him were made; the fact is that it was clear to the FBI that Page was not even open to such a relationship. But apparently, Page continued to be a target they could continue to spy on, even if it was for the purposes of gaining information on others]
September 23, 2016: Michael Isikoff writes an article in Yahoo News reporting that the government was/is investigation Page’s ties to the Kremlin. The source of the information for this article was Christopher Steele. Amazingly, Steele then used this article in his dossier to support the “information” he collected on Page. (Can you believe this??)
September 23, 2016: In an article published in Politico magazine on Sept. 23, Trump spokeswoman Hope Hicks is quoted by a reporter working on a profile of Page saying that “he has no formal role in the campaign.”
September 25, 2016: Page sends a letter to then-FBI director James Comey, stating: “For the record, I have not met this year with any sanctioned official in Russia despite the fact that there are no restrictions on U.S. persons speaking with such individuals.” He also writes that he has sold his “de minimis” stake in Russian energy giant Gazprom at a loss. Bloomberg News reported on Page’s “deep ties” to Gazprom in March, but a Politico account in September suggested Page exaggerated his contacts with Gazprom.
September 26, 2016: In his first public comments about accusations that he met with Russian officials, Page tells the Washington Post’s Josh Rogin: “All of these accusations are just complete garbage.” He adds: “All the ones that are mentioned in the various articles, I didn’t meet with any of those guys. … It’s completely false and inconceivable that someone would even accuse me of that.” Page admits, however, that he did briefly meet and shake hands with Russian Deputy Prime Minister Arkady Dvorkovich, a fellow speaker at the New Economic School commencement address. Page also tells Rogin that he will take a leave of absence from the Trump campaign: “This is another distraction that’s been created here. … There’s so little time between now and the election, this is in the best interests of the candidate. It’s so ridiculous I want to have it behind us.”
October 2016: The FBI and the Justice Department obtain a FISA warrant (warrant under the Federal Intelligence Surveillance Act) to monitor Page’s communications after “convincing” a FISA court judge that there is probably cause to believe that Page is acting as an agent of a foreign power – namely, Russia. It is renewed three times, as required by statute, every 90 days. What is not clear is whether new evidence to support probable cause was presented each time, as required to continue surveillance.
December 2016: Partly in response to the Yahoo News article, Trump attorney Don McGahn, writes Page to “immediately cease” saying he is a Trump advisor. “You were merely one of the many people named to a foreign policy committee in March 2016 – a committee that met one time (and which you did not even attend),” McGahn writes. “You never met Mr. Trump, nor did you even ‘advise’ Mr. Trump about anything. Thus you are not an ‘advisor’ for Mr. Trump in any sense of the word.”
January 10, 2017 –
In sworn testimony at his confirmation hearing, Attorney General nominee Jeff Sessions testifies that he is “not aware of any communications” between the Trump campaign and the Russian government during the campaign.
BuzzFeed News publishes the full unsubstantiated dossier detailing President Trump’s alleged ties to Russia and claiming the Russian government may be blackmailing him. Christopher Steele leaked the dossier. Again, the dossier was created by Steele, who was extremely politicized against Trump and confessed he would do anything to prevent Donald Trump from being president. Steele’s dossier “alleges” that former campaign manager Paul Manafort used Page as an intermediary with the Russian government and that Page attended a secret meeting at the Kremlin in July of 2016. [Contents of the Steele Dossier: https://www.documentcloud.org/documents/3259984-Trump-Intelligence-Allegations.html ]
January 25, 2017: Nunes and ranking member Adam Schiff announce they’re investigating Russian election meddling, including possible communications between Russia and “political campaigns.”
January 12, 2017: At President-elect Trump’s first news conference, incoming White House press secretary Sean Spicer denies that Trump knows who Page is: “Carter Page is an individual whom the president-elect does not know and was put on notice months ago by the campaign.”
January or February 2017: The FBI applies for more surveillance on Page.
February 12, 2017: In an 8-page letter to the Justice Department’s Civil Rights Division, Page calls the Russia investigations “frivolous” and says that are “among the most extreme examples of human rights violations during any election in US History since Dr. Martin Luther King Jr. was similarly targeted for his anti-war views.”
February 15, 2017: In an interview with PBS News Hour’s Judy Woodruff, Page says he had no meetings with Russian officials in 2016: “I had no meetings, no meetings. … I might have said hello to a few people as they were walking by me at my graduation—the graduation speech that I gave in July, but no meetings.” (He would later re-assert that same statement – that he may have “met” someone from Russia, such as the Russian Ambassador Sergey Kislyak, who was at the Republican National Convention, but he had no “meetings.”)
March 2, 2017: Amid concerns about his January testimony and newly-revealed meetings with the Russian ambassador, Sessions announces that he will recuse himself from any investigation related to the Trump campaign.
March 4, 2017: Trump accuses Barack Obama of having Trump Tower “wiretapped”.
March 15, 2017: After initially defending Trump, Nunes says he does not believe Trump Tower was bugged. But he adds a caveat: Trump campaign communications could have been incidentally collected as part of wider surveillance efforts.
March 20, 2017: FBI Director James Comey testifies before the Intel Committee, and refutes Trump’s claims. Nunes reiterates that there was no “physical” wiretap, but repeats the possibility of incidental collection.
March 21, 2017: Nunes travels to White House grounds to review evidence of potential surveillance of Trump associates. The visit is not initially made public.
March 22, 2017: Nunes holds unexpected press conference and says an unnamed individual (or individuals) showed him intelligence reports indicating the Obama administration captured communications involving Trump and/or his associates. He said it appeared to be legal, incidental collection but nonetheless seemed “inappropriate” and troubling. Nunes briefs Trump before Schiff, despite Trump being a potential subject of the committee’s investigation. (Trump says he feels “somewhat” vindicated). The following day, Nunes expresses regret for failing to brief Intel committee before White House.
March 27, 2017: News of Nunes’ White House visit emerges. He says he needed to visit the White House in order to access to secure system, an explanation that is immediately challenged. Schiff calls on Nunes to recuse himself from Russia investigation.
April 11, 2017: The Washington Post first reports on the existence of the FISA warrant on Page from the summer of 2016. In an interview, Page again compares the surveillance to the FBI’s eavesdropping on Dr. King. “This confirms all of my suspicions about unjustified, politically-motivated government surveillance,” he says.
Late April or Early May 2017: The FBI applies for more surveillance on Page. (This application is approved by newly sworn-in Deputy Attorney General Rod Rosenstein)
May 7, 2017: In an angry nine-page letter to the Senate intelligence committee, Carter says he had only “brief interactions” with Pobodnyy in 2013 and calls requests for more information a “show trial” based on “the corrupt lies of the Clinton/Obama regime.”
July or August 2017: The FBI applies for more surveillance on Page. (This application is also approved by Deputy Attorney General Rod Rosenstein. Rosenstein appointed Special Counsel Bob Mueller to investigate the Trump campaign for any ties to Russia. Therefore Rosenstein is Mueller’s boss and has the power to oversee the investigation of Donald Trump – to set limits, to define the scope of, etc)
October 18, 2017: During five hours of testimony before the Senate Judiciary Committee, Sessions is grilled about his contacts with Russians during the campaign. When asked if any surrogates from the Trump campaign had contact with the Russians, he responds: “I did not — and I’m not aware of anyone else that did. I don’t believe that it happened.”
October 30, 2017: In wide-ranging interview MSNBC’s Chris Hayes, Page discusses Papadaopoulos’ guilty plea, admitting that he was on campaign email chains with Papadopoulos about Russia. “I genuinely hope, Carter, that you are innocent of everything, because you are doing a lot of talking,” Hayes says.
November 2, 2017: During six hours of closed-door testimony with the House intelligence committee, Page testifies that he told Sessions about his trip to Russia ahead of time. During the testimony, Page invokes the Fifth Amendment when asked to produce documents that could potentially be relevant to the investigation.
November 3, 2017: In an interview with CNN’s Jake Tapper, Page says that the fact he told Sessions about his upcoming trip to Russia was a “nothing event” made “totally in passing.” He adds that Sessions was not the only one on the campaign that he told before he took the trip. “I mentioned it to a few other people,” he says.
January 29, 2018: The House Intelligence Committee votes along party lines to publicly release a classified memo overseen by Republican Rep. Devin Nunes which criticizes the FBI’s handling of a FISA warrant on Page, alleging that relied too heavily on information in the Steele dossier. In a rare public statement, the FBI says it has “grave concerns” about the memo.
The Memo Reveals the Following:
• 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.
(a) 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.
(b) 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.
• The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff, which focuses on Page’s July 2016 trip to Moscow. This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself to Yahoo News. The Page FISA application incorrectly assesses that Steele did not directly provide information to Yahoo News. Steele has admitted in British court filings that he met with Yahoo News—and several other outlets—in September 2016 at the direction of Fusion GPS. Perkins Coie was aware of Steele’s initial media contacts because they hosted at least one meeting in Washington D.C. in 2016 with Steele and Fusion GPS where this matter was discussed.
(a) 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.
(b) 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 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. Furthermore, 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.
• 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. Furthermore, Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.
• 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. Strzok was reassigned by the Special Counsel’s Office to FBI Human Resources for improper text messages with his mistress, FBI Attorney Lisa Page (no known relation to Carter Page), where they both demonstrated a clear bias against Trump and in favor of Clinton, whom Strzok had also investigated. The Strzok/Lisa Page texts also reflect extensive discussions about the investigation, orchestrating leaks to the media, and include a meeting with Deputy Director McCabe to discuss an “insurance” policy against President Trump’s election.
III. FISA and FISA COURTS
What is the History of the Foreign Intelligence Surveillance Act (FISA) ?
In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA) and President Carter signed it into law. That law established essentially five things: (1) First, that non-criminal electronic surveillances within the United States were only permissible for the purpose of collecting foreign intelligence and/or foreign counterintelligence. (2) Second, it identified foreign powers and agents of foreign powers as the entities and persons that could be targeted for electronic surveillance. (3) Third, it articulated a probable cause standard that had to be met before an electronic surveillance was permissible. (4) Fourth, the Act established the Foreign Intelligence Surveillance Courts (FISC), one at the district court level for initial review of surveillance applications, and one at the appellate level should the government appeal a district level denial of an application. (5) Finally, the Act established the only circumstances under which an electronic surveillance could lawfully be conducted in the United States for the purpose of collecting foreign intelligence or foreign counterintelligence.
The FISA Court is a secret court that operates in secrecy. It was designed to address abuses uncovered in the 1970s by congressional investigations. Prior to FISA, presidents claimed authority to engage in electronic surveillance for national security reasons without any court oversight. That led to uncontrolled domestic spying by the National Security Agency, the CIA and the FBI. FISA was passed by Congress, therefore, to bring law to a lawless area. The FISA court, it was hoped, would stop those abuses by only approving legitimate surveillance requests, and without tipping off terrorists and spies. To do that, everything about the court has to remain secret; its proceedings are not revealed to the public, and if they are revealed to Congress, they’re revealed in a classified setting. The secret nature of the FISA court, and in fact the entire FISA system, makes it difficult even for members of Congress to raise question and also to get answers. The FISA system is so secret that victims of FISA warrants almost never find out they were bugged.
What Must the Government Show to Get a Warrant for a Wiretap?
It is very hard to get a FISA surveillance warrant. The statute requires a high standard of proof and a rigorous procedure for the precise reason that government officials not abuse the civil rights of the American people – specifically, the Fourth Amendment’s guarantee against unreasonable searches and seizures. Citizens have the rightful expectation that their government will not spy on them. In order to obtain a FISA warrant from the secret court that oversees them, the following steps are required:
First, the bureau does a “threat assessment” to determine whether a suspect might be working with foreign intelligence. If so, an investigation is opened and agents gather initial material for a warrant, such as information gathered from other methods like human sources, physical surveillance, bank transactions or even documents found in the target’s trash. Evidence that a suspect spoke with a foreign government is not enough to get a warrant from the Foreign Intelligence Surveillance Court. The FBI still needs to demonstrate that the suspect knew he or she was helping the foreign government, and not just chatting innocuously. There has to be evidence of some action.
Once evidence is gathered, a warrant application is written by lawyers in an FBI field office before getting sent to headquarters in Washington DC for more approvals. After that, there is one more check. Lawyers from inside the FBI’s National Security Division must undertake certain procedures to further ensure the veracity of the information in the application; these procedures are known as the “Woods Procedures.” Specifically, the goal of these procedures is to ensure accuracy with regard to: 1) the facts supporting probable cause; 2) the existence and nature of any related criminal investigations or prosecutions involving the subject of the FISA; 3) the existence and nature of any prior or ongoing asset relationship between the subject and the FBI. Only after all that does a senior Senate-confirmed Department of Justice official sign off on the application. And then, the warrant request package is finally sent to the Foreign Intelligence Surveillance Court.
How Was the FBI Able to Get a FISA Warrant to Spy on an American Citizen?
50 U.S. Code Sect. 1801 identifies two categories of potential targets for surveillance under FISA. The first is a foreign power and the second is an agent of a foreign power. So, to be targeted for secret surveillance under the FISA law, the FBI had to provide proof that Carter Page was an “agent of a foreign power.”
The renewal FISA warrant applications submitted to the FISA court by the FBI and DOJ under President Obama accused Carter Page (without much actual evidence; mostly based on “rumor” and salacious and unverified claims) of acting as a Russian agent.
According to the statute, including the intent of Congress in enacting the statute, in order to obtain the warrant involving Mr. Page, the government needed to show probable cause that he was acting as an agent of Russia. It does not mean that the government had to prove that he, himself, was a spy (spying on the US). An American may be targeted if he knowingly aids or abets someone involved in clandestine intelligence gathering that may involve a violation of criminal statutes. The “definitions” section of the 1978 FISA Act, Section of Sect. 1801, reads:
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;’
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
In applying for the warrant and using the Steele dossier as the substance to support probable cause, the Obama FBI and DOJ did not meet the standards set by the FISA statute. As the Nunes memo points out, the FBI and DOJ have an obligation of candor and honesty to the court, which they ignored. The dossier knowingly contained unverifiable and unverified information (such as the Yahoo News article written by Michael Isikoff , as noted in the Memo and in the Timeline section]. It also was prepared and pursued by highly politicized officials and investigators (Steele), some of whom disclosed how strongly they would work to prevent a Trump presidency. The agents who presented the application to the secret court withheld material and relevant information concerning the original of the dossier and the purposes it was created. Such information goes to the likely credibility of the information.
IV. WATERGATE versus FISA ABUSES: WHICH WAS WORSE?
We can see similarities and differences between Watergate and the FISA abuse. Both occurred in the midst of a presidential election campaign and for the purpose of gaining a political advantage (by discrediting the opponent), and both involved the Executive branch. Both used illegal means to wiretap, and both involved paying ex-spies (ex-CIA agent E. Howard Hunt, for instance, in the case of Watergate and Christopher Steele in the case of the Obama FBI) to dig up information.
As for the differences, the FISA abuse was perpetrated by government agencies (and hence represented State Action) while the Watergate break-in was the handiwork of the president’s campaign operatives. One could possibly speculate if Nixon had FISA at his disposal would he have abused that power as the Obama’s FBI and DOJ did?
The key difference is that government agents, perhaps with knowledge and with the blessing of President Obama, weaponized the government against an American citizen in order to build a sham of a case against candidate Donald Trump and now to somehow finagle Trump into obstructing the sham investigation so Democrats can claim obstruction of justice. In Nixon’s case, there was a real crime. It was undeniable because the Plumbers were caught in the act. And because it was a real crime and because he took extreme and questionable measures to interfere with the investigation by Special Prosecutor Archibald Cox, it was a legitimate case of obstruction of justice. Neither is the case for Donald Trump. In Trump’s case, there is a fabricated case of Russian collusion based on a fabricated dossier as evidence. Does he dare try to interfere with the witch hunt?
Rogue elements within the Obama administration, using all their intelligence and counter-intelligence training and tools, created the illusion that Donald Trump, through members of his campaign, colluded with the Russian government to rig the election in his favor. The investigation continues to try to dig up any evidence, even manufactured evidence, to show that the president is lying and covering up his crimes. In criminal law, if the warrant is faulty, then any evidence collected in pursuance of that warrant is inadmissible and must be thrown out as “fruits of the poisonous tree.” (The Exclusionary Rule)
But the Democrats don’t care about the Rule of Law or even lawlessness; they thrive on it. Forty-five years ago, the Watergate scandal forced a president out of office. In 1974, Nixon resigned from office not because he had any complicity in the actions that precipitated the scandal (the break-in at the Watergate Hotel) but rather, because he tried to keep it quiet and cover it up after he found out. He resigned because he obstructed the investigation; he obstructed justice. It’s most likely that Democrats expect they can do the same with Donald Trump. Is it any wonder we keep hearing allegations that “Trump is obstructing justice,” as in the case of the Nunes memo and President Trump’s decision to declassify it and allow it to be released. Is it any wonder that Nancy Pelosi and other Democrats have threatened Trump that should he attempt to remove Deputy Attorney General Rod Rosenstein from office (even though there is plenty of good reasons for him to do so) would be seen as an attempt to obstruct justice (in the Mueller investigation)? Democrats know what they are doing.
But the Nunes Memo (and the countless documents and hours of testimony that it was based on) makes clear that said rogue elements within the FBI and the Justice Department abused and broke the law. They deceived the judges of the FISA court by assuring them, through the signatures on the application, and by allowing them to conclude that Steele was reliable and without bias and motivation in his assembly of evidence against Carter Page. They had a statutory obligation and a duty of candor, that comes with any pleading to a court, to the FISA judges to present all relevant and material information. Fraud includes offering false and misleading information, as well as making false and misleading comments. It equally includes the omission of material and relevant information. In the case of the FBI and DOJ, the agents willfully and knowingly omitted relevant and material information.
Looking at the totality of the circumstances surrounding the FISA warrants and all the actors involved, it is quite evident that these rogue elements abused and broke the law in an attempt to use the surveillance and police power of the United States government first to throw the election to Hillary Clinton and then to destroy the presidency of Donald Trump.
Secret courts have great power, as I have pointed out in an earlier section. But with great power comes the tendency or temptation for abuse of that power. And in the case of the 2016 election, that is exactly what we have seen.
We must remember and recognize the reason that procedural safeguards are put in place in our court systems. They are there to protect the precious liberties of the people who can be arbitrarily hurled in front of the courts. We should learn from history of such abuses of the safeguards. In particular, we should look back to some history that actually influenced the rights protected in our Bill of Rights – the Star Chamber of England.
In medieval England, the Star Chamber was a secret court named for the decorative stars emblazoned on the ceiling of the wood-paneled room in which its judges deliberated. The Star Chamber oversaw the proceedings of the local courts; it was also able to decide matters involving wealthy and powerful people whose influence made them immune to the decisions of lower judicial bodies. Over the centuries, the Star Chamber was often used to break up the power of England’s land-owning elites. Although the court could order torture, prison and fines, it did not have the power to impose the death sentence. Under the Tudors, Star Chamber sessions were public. Under the Stuarts, the power of the Star Chamber increased greatly.
By the 17th century, under Charles I, it had become a vehicle for prosecuting political dissent. The Chamber was comprised of judges friendly and loyal to the king and would basically do his bidding. Charles famously, or infamously, used the court to examine cases of sedition – rebellion or even opposition to the king’s policies. Court sessions were held in secret, with no witnesses, no juries, and no right of appeal. Evidence was presented in writing and those dragged before its bench often had no idea what the charges were against them before punishment was handed down. This made it exceedingly easy for King Charles to allege false crimes, which he often did to get rid of political enemies and opponents.
Over the tenure of his reign (1615-1649), the Star Court evolved into an effective political weapon. Interestingly, the Star Chamber was used to punish religious dissent, such as that posed by the Puritans and Pilgrims. This persecution of Puritans ultimately drove the Puritans to seek refuge in the New World (America). Due to its excesses, the Star Chamber was abolished by Parliament in 1641, with the Habeas Corpus Act.
I look at the abuse of the secret Start Chamber and I look at the abuse of the secret FISA court. The actions of King Obama – I mean, the rogue FBI and DOJ agents under Obama’s reign – come frightfully close to the abuses of King Charles I.
In Charles’ case, his abuses inspired our protections for the criminally accused. In Obama’s case, he simply ignored them.
V. WHAT WE KNOW AND WHAT WE STILL DON’T KNOW
The FISA Abuse Memo is out and now we know why the Democrats were desperate to keep its contents hidden from the public: it confirms the worst fears not just of President Trump’s supporters but of everyone concerned about the abuse of police power, government corruption, and the sanctity of our elections. It outlines in very clear and concise form how rogue officials in the FBI and DOJ put partisan politics above the Rule of Law and Duty and Fidelity to the Constitution.
The memo shows that there was calculated interference in the 2016 presidential election by hostile elements within a United States intelligence agency. It wasn’t the Russians we had to worry about—it was rogue actors at the highest levels of the FBI and Department of Justice. Left unanswered is to what extent the West Wing knew about or was complicit in this gross abuse of power.
What we know:
1. The FBI’s case to the FISA (the Foreign Intelligence Surveillance Act) Court was based almost entirely upon a partisan hit-job bought and paid for by the Democratic National Committee and the Clinton campaign. Christopher Steele, the source of the dossier, had “financial and ideological motivations” to undermine Donald Trump according to the Nunes memo. In fact, the FBI’s file records that Steele told Associate Deputy Attorney General Bruce Ohr that “he was desperate that Donald Trump not get elected and was passionate about him not being president.”
2. Ohr’s wife was one of just seven employees at FusionGPS, the firm that was paying Christopher Steele. The personal financial relationship between the Ohrs and the dossier was concealed from the court.
3. The FBI could not corroborate the information in the Steele dossier, calling it only “minimally corroborated” but did not disclose this fact to the FISA Court thus leading it to believe that the information in the dossier was either FBI work-product or that it had been independently corroborated by the FBI. Neither was true.
4. The FBI did not disclose that the source of the information which formed the basis of their FISA application was a paid political operative of the Clinton campaign and the DNC.
5. The FBI and the Department of Justice intentionally misled the FISA court in their applications to obtain authority to spy on Trump campaign advisor Carter Page. They did this not once, but on four separate occasions over the course of a year, including after Donald Trump was in office. The misleading applications were signed off by James Comey (three times), Andrew McCabe, Sally Yates, Dana Boente, and Rosenstein. This certainly casts the actions of each of them in a much different light. Recall that Yates was briefly the acting attorney general under Trump before the president fired her when she refused to defend the administration’s travel moratorium in court. At the time she was lionized in the media and claimed that she had to defend “this institution’s solemn obligation to always seek justice and stand for what is right.” Likewise, Rosenstein’s nearly yearlong failure to fulfill his legal obligation to produce a lawful charter as a predicate for the Mueller investigation which now appears, in context, to be nothing more than the continuation of the Democrat’s campaign against Trump using the FBI as willing collaborators.
6. Comey lied to the president about the investigation while he was FBI director.
7. FBI agent Peter Strozk and his mistress FBI attorney Lisa Page met with Deputy Director Andrew McCabe to discuss an “insurance policy” against Trump being elected president. We don’t yet know the names of all of those who attended the meeting.
8. The texts between Peter Strozk and Lisa Page contain, “extensive discussions about the investigation, orchestrating leaks to the media, and include a meeting with Deputy Director McCabe to discuss an ‘insurance policy’ against Trump’s election.”
9. The Nunes memo is just the beginning. There is more to come.
What We Still Don’t Know:
1. What role did Hillary Clinton play?
2. Was Attorney General Loretta Lynch involved with these efforts to surveil associates of the Trump campaign and, if so, to what extent?
3. We know that Susan Rice and Samantha Power were both involved in unmasking the names of U.S. citizens who were being targeted in this surveillance. Were they coordinating with elements within the FBI and/or the Justice Department? Were they coordinating with the DNC and Clinton campaign to give Hillary an electoral advantage?
4. What did Loretta Lynch and Bill Clinton really discuss during their tarmac meeting in Phoenix on June 27, 2016.
5. Did Barack Obama know about and/or participate in a conspiracy to use the police and surveillance powers of the federal government to undermine Donald Trump and rig the presidential election? Senator Ron Johnson (R-Wis.) wants to see Obama and Clinton’s emails.
6. Who else was at the meeting attended by McCabe, Strozk, and Page where they discussed an “insurance policy” against Trump’s election? How often did they meet, where did they meet, and what did they discuss?
7. Why couldn’t the FBI, which touts its forensic expertise, locate the Strozk-Page texts but the Inspector General did it in two days?
8. What is the “insurance policy” Strozk and Page discussed? Is that a reference to the conspiracy itself?
9. To whom in the media did the FBI leak information about their Trump spying? How long and how extensive was this disinformation campaign.
10. What discussions took place among Justice Department resisters about refusing to obey Trump’s direction as president?
We now know that almost every accusation leveled against the president with regard to so-called Russian collusion” actually reflects the actions of what amounts to a cabal of Democratic Party operatives working with FBI and Justice Department fellow-travelers.
Among other things, it has become clear that Rod Rosenstein must resign. He was either complicit in the conspiracy to mislead the FISA Court or he was too dumb to see what was happening. Either way, he’s demonstrated criminality, incompetence, or both and needs to go.
The picture painted by the Nunes memo is one of federal law enforcement officials who believe they are a wholly independent power, accountable to no one but themselves, and able to pick winners and losers in elections.
Based on what we know now, the conspiracy to undermine candidate Trump and later to destroy President Trump may have been limited to the Justice Department and FBI. But looking at the totality of the plan to influence the 2016 election, it seems hard to believe that Obama had no knowledge of what was going on.
VI. CONCLUDING REMARKS:
How bad are the revelations in the Nunes’ memo? It’s very bad. As the title of the article states, it is worse than the underlying crimes in the Watergate scandal that brought down President Richard Nixon. Greg Gutfield put it best when he said: “Using an unvetted dossier to obtain a FISA warrant to spy on an American citizen is like using Monopoly money to buy a Porsche.”
If the conduct of the Obama administration FBI and DOJ is OK, then Donald Trump should do the same thing in the 2020 presidential election season. He should hire someone like Christopher Steele, have a dossier concocted on his opponents, and then present that information (without disclosing anything explaining how that information originated, was collected, or even why it was collected) to a FISA judge to get a surveillance warrant to spy on those opponents.
The Steele Dossier (contents) – https://www.documentcloud.org/documents/3259984-Trump-Intelligence-Allegations.html
Chris Buskirk, “Worse Than Watergate,” American Greatness, Feb. 2, 2018. Referenced at: https://amgreatness.com/2018/02/02/worse-than-watergate/ [The Entire Section V is reproduced from this excellent article]
Charlie Savage, “How to Get a Wiretap to Spy on Americans, and Why That Matters Now,” NY Times, January 29, 2018. Referenced at: https://www.nytimes.com/2018/01/29/us/politics/fisa-surveillance-applications-how-they-work.html
Dave Lawler, “Timeline: Davin Nunes and Trump Surveillance Claims,” AXIOS, March 30, 2017. Referenced at: https://www.axios.com/timeline-devin-nunes-and-trump-surveillance-claims-1513301236-c0c83abe-26be-4651-96b7-3dc84bbd203a.html
Ryan Teague Beckwith and Alana Abramson, “Who is Carter Page? Meet the Donald Trump Advisor at the Center of the GOP Memo,” TIME, Feb. 2, 2018. Referenced at: http://time.com/5128614/carter-page-gop-memo-fisa-warrant/
Andrew Prokop, “Carter Page, Star of the Nunes Memo, Explained,” VOX, February 2, 2017. Referenced at: https://www.vox.com/policy-and-politics/2018/2/2/16956014/nunes-memo-carter-page
Zachary Fryer Biggs, “Republican ‘Release the Memo” Conspiracy Ignores How Difficult it is to Get a FISA Warrant,” Newsweek, February 1, 2018. Referenced at: http://www.newsweek.com/how-get-fisa-warrant-797323
Artin Afkhami, “A Timeline of Carter Page’s Contacts with Russia,” Slate, November 7, 2017. Referenced at: http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/a_timeline_of_carter_page_s_contacts_with_russia.html
“Carter Page Did Not Need to be a Spy to Be Targeted Under FISA,” EmptyWheel, January 29, 2018. Referenced at: https://www.emptywheel.net/2018/01/29/carter-page-did-not-need-to-be-a-spy-to-be-targeted-under-fisa
Larry Abrahmson, “The History Behind America’s Most Secret Court,” NPR Morning Edition, June 7, 2013. Referenced at: https://www.npr.org/2013/06/07/189430580/the-history-behind-americas-most-secretive-court
James G. McAdams III, Legal Division, “Foreign Intelligence Surveillance Act (FISA): An Overview.” Referenced at: https://www.fletc.gov/sites/default/files/imported_files/training/programs/legal-division/downloads-articles-and-faqs/research-by-subject/miscellaneous/ForeignIntelligenceSurveillanceAct.pdf
APPENDIX: Foreign Intelligence Surveillance Act (FISA), of 1978
(1) pursuant to an order issued by the FISC; or (2) in emergency circumstances, pursuant to Attorney General approval, so long as an application is thereafter made to the FISC within 24 hours.
FISA identifies two categories of potential targets for surveillance under FISA. The first category is foreign powers. A foreign power is –
(1) a foreign government, (2) a diplomat, other representative or employee of a foreign government, (3) a faction of a foreign nation that is not substantially composed of U.S. persons, (4) an entity openly acknowledged by a foreign government to be directed and controlled by it, or (5) a group engaged in international terrorism or activities in preparation therefore.
A second category of FISA targets are agents of foreign powers. An agent of a foreign power is –
(1) anyone, other than a U.S. person, who acts in the United States as an officer or employee of a foreign power, or (2) anyone who acts as part of or in support of a foreign power’s efforts to engage in clandestine intelligence gathering activities in the U.S.
An agent of a foreign power is also anyone, including a U.S. person, who –
(1) knowingly engages in clandestine intelligence gathering activities for a foreign power which activities constitute a violation of U.S. criminal statutes; (2) knowingly engages in sabotage or international terrorism, or activities in reparation therefore, on behalf of a foreign power.
For purposes of the Act, a U.S. person is defined as any of the following:
(1) a citizen of the U.S.; (2) an alien lawfully admitted for permanent residence; (3) an unincorporated association a substantial number of which are U.S. citizens or aliens lawfully admitted for permanent residence; or (4) a U.S. corporation. Under the Act, international terrorism is defined as:
(1) activities that involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the U.S. or of any state, or that would be a criminal violation if committed within the jurisdiction of the United States or any State; (2) acts that appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by assassination or kidnapping; and
(3) activities that occur totally outside the U.S., or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.