Partisan Taint in the Trump-Russia Investigation

We need FISA reforms that protect against partisan misuse of intelligence

|The Volokh Conspiracy |

It's been four years since the FBI began its national security investigation of the Trump campaign, and Americans remain deeply divided over the probe. Democrats think the investigation was more than warranted by the number of suspicious contacts between Team Trump and the Russian government. Republicans think the investigation was a partisan hit job on an anti-establishment candidate.

They're both right.

It would have been national security malpractice not to investigate possible Russian influence over the Trump campaign. Hostile foreign governments will always be tempted to use the openness of American presidential contests to boost their favored candidates or sabotage others. More such investigations will be needed in the future. After spending four years advertising the success of Russia's interference campaign, the U.S. should not be surprised if other countries get the message and launch their own. Given the risks, national security agencies can't be gun-shy about probing foreign government efforts to infiltrate the U.S. political system.

At the same time, there is a lot more evidence than many people realize that the 2016 investigation was pervasively tainted by hostility to Donald Trump. In part, that comes with the territory. Any time government officials order national security surveillance of people who want to kick them out of office, they will be suspected of partisan motives. Put charitably, the Obama administration bungled this dimension; it failed to recognize just how partisan its investigation of a political rival would look, and it did far too little to avoid the appearance of partisanship. Less charitably, there is reason to believe that the Obama administration milked the investigation for partisan advantage.

That less charitable view deserves respect. First because it's backed by considerable evidence. And second because it's unpersuasive to tell half the country that their suspicions are mere conspiracy theories that they should just get over. The U.S. needs a national security system that the whole country has confidence in.

Especially now. The United States has spent nearly 50 years guarding against one kind of intelligence abuse—the government turning its intelligence machinery against individual rights and unpopular minorities. It hasn't had to worry much about a different kind of abuse—employing national security surveillance to achieve partisan political ends.

It's not that it can't happen here, as anyone would know who studied J. Edgar Hoover's collection of dirt on politicians—or his willingness to share that dirt with presidents when they felt the need. The United States has been lucky in recent decades. Divided government and a narrow range of political differences discouraged incumbents from using intelligence capabilities against the opposition.

Now, not so much. If it sees members of the other party not just as wrong but as borderline treasonous, why wouldn't the party in power use national security authorities against them? As that temptation grows, institutional reforms are needed to keep officials from yielding to it and, just as important, to show skeptics that the reforms actually worked.

The Obama administration clearly flunked the second requirement. They quite possibly flunked the first one too. Here are the most salient facts in support of that view—a much more detailed accounting of which is available, complete with footnotes, in my forthcoming testimony to the Privacy and Civil Liberties Oversight Board.

The DNC and the Steele "Dossier"

A major part of the Crossfire Hurricane investigation and the public disclosures it produced was the "dossier" created by Christopher Steele. We all now know that it was a salacious and unverifiable hit job assembled not by a network of intelligence sources but by a mix of Steele's friends, their drinking buddies, and probably a few disinformation specialists from GRU (Russia's military intelligence agency). Worse, Steele assembled that hit piece as a subcontractor to the Democratic National Committee, and judging by his conduct, he thought his role was to lobby the FBI to use its formidable national security powers against the Republican campaign—and to leak both the investigation and the now "FBI-validated" dossier in hopes of ruining Trump's candidacy.

There are reasons to suspect that, despite its denials, the DNC intended that outcome: It hid its ties to Steele behind multiple cutouts and a dubious claim of attorney-client privilege, then falsely denied its connection to Steele for months after the story broke. In the end, Steele's work didn't pay off for Democrats until after the election. But during the transition it stoked the Russia collusion narrative that put a cloud of illegitimacy over the first two years of the Trump administration. That is a remarkable, if unseemly, achievement for a partisan hit job. Other political actors will learn the lesson and can be expected to use cutouts in the future to lobby the national security agencies against their domestic enemies.

Partisan Bias and the Carter Page FISA Application

The one really detailed examination of how the Crossfire Hurricane investigators treated the evidence against the Trump campaign is the inspector general's dissection of the Carter Page wiretap application. That story does not exactly rebut the suspicion that partisanship tainted the probe. The application was full of errors and omissions, and all of them cut against Page and the Trump administration. Almost no one in the Justice Department or FBI stopped to ask if it was wise to pursue a surveillance order against a prominent member of the opposing party without taking a hard look at the evidence. As a result, the investigators left out—or even lied about—a raft of information that would have raised doubts about whether Page was a legitimate surveillance target.

For a while, it was possible to put these errors down to a different cause—not partisanship but a complete collapse in the Foreign Intelligence Surveillance Act (FISA) fact-gathering process. That comforting line of thinking rested on two findings by Inspector General Michael Horowitz—first that he found no evidence of bias and second that he found pervasive errors in 29 unrelated FISA applications. On closer examination, neither of those findings offers much support to the "FISA is broken" hypothesis.

First, on partisan motivation in Crossfire Hurricane, what the inspector general actually found was that no one at the FBI was foolish enough to say in writing or in testimony that they or others at the FBI were operating with a partisan bias. As the inspector general acknowledged in his Senate testimony, the absence of bias evidence didn't prove an absence of bias. In fact, the inspector general did find written evidence of bias—in the texts of Peter Strzok, which are full of animus toward Trump. Strzok had great influence over the Crossfire Hurricane investigation, but the inspector general decided that Strzok's bias didn't count because Strzok never acted completely alone in the investigation. Really, that's it. If I'm ever accused of a crime, I want Michael Horowitz on my jury.

Second, the errors he found in 29 other FISA applications evaporated on a closer look. They were, it turns out, almost all failures to properly footnote the FBI's sources. When the FISA court ordered a review of all 29, the Justice Department found only two material errors, and neither of them cast doubt on the issuance of the wiretap order. That contrasts starkly with the Carter Page application, where the department has admitted that the errors were so serious that at least two and perhaps all four FISA orders should never have been issued.

In short, the only FISA application that targeted a partisan opponent of the administration was corrupted by numerous material omissions and errors and at least one false statement, one of the most influential investigators was a voluble Trump hater, and others may have harbored a bias against Trump that they were too prudent to articulate. Since the FISA process in general now seems to be careful and accurate, if not perfect, the deviation from norm in the case of Carter Page strongly supports the view that anti-Trump bias was at work.

A Conveyor Belt from Press Reports to Surveillance

Actually, there's more. The inspector general passed over in silence the remarkable reliance of the Page application on media reporting. Fully a third of the core FISA case against Page consists of summaries of news stories. By itself, relying on media reports was a likely source of bias against anyone associated with Trump. (If you want to argue about that, all I can say is that I want you on my jury too.) But we don't have to argue about media bias in the abstract. It can be found in the Page application itself, which relies on a Washington Post opinion piece, without disclosing to the court either the source or the fact that it isn't, strictly speaking, a news report at all. Almost as bad, the opinion piece claims that the Trump campaign diluted the GOP platform on Ukraine in ways that favored Russia. (In fact, the campaign accepted a mildly diluted version of an amendment offered by a Ted Cruz delegate, which is a lot more accommodation than delegates for defeated candidates usually get at conventions.) The claim has been investigated extensively, including by Robert Mueller and the Senate Intelligence Committee, without finding any wrongdoing. The nicest thing you can say about the article in retrospect is that it was slanted to take the worst view of the Trump operation. An equally fair summary would be that the story became part of an FBI conveyor belt for turning media bias into a wiretap order. If that doesn't worry you, imagine today's Justice Department obtaining a FISA order against Biden campaign advisers by relying on an article from Breitbart, and simply telling the court, as the Page application does, that the information comes from "an identified news source."

Targeting Michael Flynn

That's not the worst of it. Viewed from the standpoint of partisan abuse, the Michael Flynn story is especially troubling. He had been investigated and cleared by the FBI on Jan. 3, 2017. But two days later, on Jan. 5, the White House obtained a wiretap of Flynn talking to Russian Ambassador Sergey Kislyak about Russia's response to the Obama administration's recent sanctions. The wiretap of Flynn's remarks was legal, because the "target" of the tap was Kislyak not Flynn. But the legality of the collection does not fully resolve what you might call an analytical reverse-targeting after the fact. That's because the White House was only really interested in Flynn's side of the call.

After an Oval Office meeting about Flynn's remarks, Obama administration officials began a concerted campaign to use those remarks against him. Within three weeks, he'd face leaks accusing him of violating the criminal Logan Act, he'd be reinvestigated under an implausible counterintelligence theory, and he'd find himself ambushed by the FBI in a perjury-trap interview. He'd also become the first American to have a FISA-tapped conversation leaked to the press by political rivals. Within four weeks, he'd be gone from government, disgraced and facing criminal prosecution.

By any measure, this was a political use of a FISA wiretap that targeted an American. It may have been a lawful political use of a FISA tap, but that's not something people should be comfortable with. The Obama administration, however, had gotten comfortable with it a few years earlier. When Israel was fighting Obama's Iran nuclear deal in Washington, it worked closely with Hill Republicans. The U.S. apparently tapped the Israelis, again legally, since they were foreign government officials. And the taps may have offered some national security insights; any time a government, however friendly, lobbies Congress against the American president, we ought to know what it's up to. But the foreign intelligence value of understanding what the Israelis were saying paled next to the political value of getting real-time intelligence on the GOP's Hill strategy for stopping the Iran deal. The unfortunate lesson the Obama administration learned in that battle was that the president can use FISA taps against his political enemies as long as he checks the right legal boxes. If it worked against the congressional Republicans, why wouldn't it work against Team Trump?

But turning FISA into just another partisan weapon means it's going to be used like one. If it hurts the other side, it's going to be leaked. Which is what happened with Flynn's conversation. The leak was unprecedented in national security circles, but in Washington politics, it was just another Thursday. More than 40 years had elapsed before the first FISA tap of an American was leaked to the press. I doubt it'll be that long before the second.

The Need for Reform

To be clear, apart from the Flynn leak, none of this was plainly illegal, and no one should want the government to ignore indications that a prominent political figure is working with a hostile government. But the Republicans who were on the receiving end of these intelligence operations have every reason to doubt the good faith of the administration that carried them out. And that in itself will prove fatal to the bipartisan support the intelligence community needs as it responds to foreign influence operations. What's needed are reforms that will prevent future administrations from using the intelligence community against the opposition in this way.

Unfortunately, most of the reform proposals are warmed-up leftovers beloved of individual rights advocates—more paperwork and audits and amici curiae for all FISA applications, not just the ones that pose partisan risk. Others could make things worse, such as the measures to require that the attorney general be briefed on FISA taps with partisan risk. Is there anyone on the GOP side who would be relieved to hear that the Flynn matter was overseen by Sally Yates, who chose partisanship over Justice Department tradition in refusing to defend the new administration's immigration policy in court? Is there anyone on Team Biden who'll be comforted to hear that William Barr will decide whether to investigate the former vice president for ties to Ukraine or China? It's fine for the case to get high-level review; top officials often have better instincts than those in the ranks. But it's not enough. We need to create a career position for a nonpartisan FBI agent or lawyer to challenge the FISA application and every other stage of the investigation. (The attorney general's supplemental reforms memo of Aug. 31, 2020, takes a good step in this direction by requiring that politically sensitive surveillance and search applications be reviewed by a special agent from a field office not involved in the investigation.) The career official should also take the lead in reporting on the investigation to majority and minority congressional leadership, not after the fact but as it proceeds.

And when an operation has both political and national security value, the intelligence it produces needs special and far more limited handling, especially when it goes to political appointees. Every one of them should be required to sign a receipt explaining why he or she needs to read it, and the intelligence community should routinely include tags on some reports that will disclose which one was leaked.

Other measures are simple. The FBI should offer media reports to the FISA court only rarely, and it should disclose their source and any credible claims of bias that have been leveled against the news outlet. Anyone who pays a third party—directly or indirectly—to try to influence the FBI or other national security agency should disclose that fact, just as lobbyists trying to influence Congress or political appointees must.

There's plenty of room to argue about which safeguards will best limit the partisan misuse of the United States's security machinery. I hope that this piece—and my longer testimony to the Privacy and Civil Liberties Oversight Board—are at least sufficient to establish that, without new safeguards, the United States will slowly lose its ability to respond as it must to foreign influence operations.

NEXT: Seattle and Washington State Are Being Sued Over Their Eviction Moratoriums

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  1. What I don’t understand is why there hasn’t been an investigation of the Dems ties to China.

    There were the financial deals in the 1996 campaign and technology transfer on rockets which have now led to them being able to now point nukes at us. There’s been all kinds of stuff since then — and no investigation….

    1. Imagine if Don Jr. had been put on the board of a Russian energy company for millions of dollars just as a political connection. Or Don Jr had a private equity firm that received $1.5 billion from Russia.

      Just imagine what that would have done for the Trump-Russia hoax. It would be a thousand times more meat on the bone. Peter Strzok would not have texted early on in the sham investigation, “there’s no big there there.”

      And yet, of course, these things are what actually happened with Hunter Biden, except it was Ukraine and China.

      1. Hell, imagine if Don Jr. was suddenly getting “gifts” of large carat diamonds from Chinese Energy tycoons, days after visiting China with Papa on a government jet.

      2. The “$1.5 billion from China” thing has got to be one of the dumbest attempts at a political smear that I can remember. From that hotbed of Democratic fake news the South China Morning Post:

        https://www.scmp.com/economy/china-economy/article/3032806/hunter-bidens-china-investment-firm-small-fish-chinas-private

        1. The “South China Morning Post”?

          Would you like to cite Pravda next, about how really, honestly, Russia isn’t interfering with US politicians?

          1. The fact that you think that the SCMP (which is blocked by the Great Firewall) and Pravda are remotely equivalent is probably a good sign this conversation isn’t going to be very productive.

            1. The SCMP used to be fine. Then China took over.

              These days…

              Well, here’s Zach Hines

              “To be a truly independent press, you cannot be beholden to anyone except your readers. But, to my great dismay, this is becoming an increasing impossibility in Hong Kong, in both the mainstream Chinese and much-smaller English media. SCMP is owned by Alibaba, perhaps the biggest pro-China organization in the world, if you don’t count the Communist Party.”

              And here is Magnus Fiskesjö,

              “(…) the spectacle’s producers included not just the usual propaganda arms of the regime (e.g. the Xinhua News Agency, etc.), but also the formerly independent South China Morning Post (SCMP) of Hong Kong. In agreeing to “interview” a torture victim in between the torture sessions, the paper gave in to pressure from China.”

              So, you may want to re-evaluate the “independence” of the SCMP, especially with regards to articles about China, the Chinese government, and Chinese interference in US elections.

              https://en.wikipedia.org/wiki/South_China_Morning_Post#Controversies

        2. Instead his girlfriend is getting your kid’s college fund you donated to the Trump campaign! Lol, you are an imbecile! This column is diarrhea…stinky.

        3. ”one of the dumbest attempts at a political smear”

          I’m not particularly interested in whether it is an effective or ineffective political smear, nor whether it is a valid criticism.

          What is relevant to me is the double standard.

          1. You mean how Liz Cheney was the only woman at State that could plop out 5 babies while her father was VP? You mean that “double standard”??

            1. Aside from being baseless, misogynist, and insulting, it’s also false.

              1. No it isn’t. Apparently she was dragging the babies she queefed out to Azerbaijan…I wonder if State was footing the bill?? 😉

                1. Yes, it is. For instance, three of her kids were born before her father was Vice President.

                  1. She’s the Republican Hunter Biden.

  2. How does an authoritarian clinger become a regular contributor to Reason? Does the force of nature that causes disaffected fringe players to huddle together for warmth overwhelm all other considerations?

    1. “…authoritarian clinger…”

      Says the Rev., “Anyone who doesn’t agree with me 100% is an authoritarian clinger.”

      It’s sort’a like the Progressive’s “Anyone who doesn’t agree with me 100% is a Nazi/Fascist/Racist”.

      1. You see Stewart Baker as a libertarian?

        Enjoy life at the inconsequential fringe.

  3. “And that in itself will prove fatal to the bipartisan support the intelligence community needs as it responds to foreign influence operations.”

    So we’re doomed?

    (Just as likely to be fatal: Expecting Republicans to be politically relevant in the White House, Senate, or House next year.)

  4. In reality, the expanse of the partisan exploitation of the FBI and CIA for political purposes against US politicians cannot be understated.

    For this reason alone, Biden, who is a continuation of that exploitative administration, cannot be allowed to win. To have him do so would justify the means, and lead to continued use of them.

    If you want America to be a fair and democratic state, one that doesn’t use the power of the police and intelligence agencies to cement control for one party, you can’t vote “Democrat”

      1. “For this reason alone, Biden, who is a continuation of that exploitative administration, cannot be allowed to win.”

        You figure clingers are going to start calling the shots in our society?

        Open wider, guys.

        1. Rev, stop using the sexually exploitative rape metaphors

          You’ve been told this before.

          1. You’re seeing rape metaphors?

    1. “If you want America to be a fair and democratic state, one that doesn’t use the power of the police and intelligence agencies to cement control for one party, you can’t vote ‘Democrat'”

      Or Republican either, as it turns out. The D’s tried to impeach a President over an attempt to use intelligence agencies against a political rival, and the R’s said there was no impeachable offense.

      1. Yeah, you’re going to have to flesh that out, because it doesn’t really match any events I can recall.

  5. “But during the transition it stoked the Russia collusion narrative that put a cloud of illegitimacy over the first two years of the Trump administration. That is a remarkable, if unseemly, achievement for a partisan hit job. ”

    No. Kidding.

    1. Except Comey and McCabe are Republicans…so it wasn’t partisan hit job.

      1. Can’t tell if this is supposed to be sarcasm . . . I hope so.

        1. You are an imbecile. Comey maxed out donations to McStain and Romney against Obama, and the only reason Obama picked Comey was to please Republicans in the aftermath of Benghazi. McCabe was also a lifelong Republican which is why Comey picked him as his lieutenant.

          1. I hope Democrats do not repeat the mistake of letting clingers off the hick (Nixon, the torturers). I also doubt we will see another Republican-appointed FBI or CIA director in quite some time.

            1. Actually the more information that has come out shows the CIA interrogators resisted Bush WH efforts to torture detainees…but had a whistleblower come forward about the Bush WH exerting pressure on interrogators to elicit false confessions tying Saddam to 9/11 I would hope Bush/Cheney would have been impeached and removed and Pelosi would have become president.

          2. TIL DC Republicans love President Trump and party affiliation dictates DOJ actions!

            Good one.

  6. it’s unpersuasive to tell half the country that their suspicions are mere conspiracy theories that they should just get over.

    Even if it’s true?

    1. Sounds like you’ve been smoking from the Kamala Harris anti-vaxxer pipe.

    2. Bernard,
      Since Armchair did not bother to respond, I’m happy to do it for him.
      Yes, even if it’s true. Conspiracy-minded nutbags must be accommodated.

      1. Oh, thanks santa… I appreciate your openness.

      2. “Conspiracy-minded nutbags must be accommodated.”

        Unfortunately the FBI, the Obama administration, and the media all acted together to promote the nutbag Trump-Russia conspiracy theories.

        1. And alas, we need to accommodate these nutbags. Apparantly with a multi million dollar investigation which shows…nothing.

          1. You’ve never read the Mueller report. Nor did you read the bipartisan SSCI’s report.

            1. Alas, I did. And despite a multi-million dollar investigation, the Mueller report showed…. No Trump-Russia Collusion.

              Yet, conspiracy theorists like you seem to still demand that there was collusion between Trump and Russia…

              1. So you read it, but didn’t comprehend it.

              2. “despite a multi-million dollar investigation, the Mueller report showed…. No Trump-Russia Collusion.”

                All they had to do was put a camera in front of Trump’s face, and they got him to admit that OF COURSE he WOULD HAVE colluded, except they couldn’t get the Russkies to return his phone calls.

            2. The one with recycled speculative trash written by coup plotters and Russian agents?

              1. Coup plotters? You mean the military’s in on this? Wow, that’s fresh news.

    3. It’s not true. It’s just taken most of four years for many of the sordid details to come out. It turns out that one of the big reasons for the Mueller SC investigation was to prevent just that – investigation into what many call SpyGate. For almost 2 1/2 years they prevented investigations into anything related to Russian collusion (including the Spying by the FBI on the Trump campaign, transition, and even early Administration) by Congress, the DOJ IG, and even the rest of the DOJ and FBI, by threatening Obstruction of Justice prosecutions for interfering with their own investigation (which had long determined that there was nothing to investigate except for Obstruction, but kept up the pretext until AG Sessions could be replaced by AG Barr).

      There never was any collusion between the Russian government and Trump and his campaign, transition, or White House. The FBI knew this from the beginning. They were complicit in fabricating the smoke and mirrors that were used to justify investigating Trump and his campaign advisors for colluding with the Russian government. The FBI knew from the start that Carter Page was both a CIA asset and an FBI cooperating witness (where he had blown the cover on at least three Russian agents). Yet they filed for FISA warrants to electronically surveil him, and through him, many in the Trump campaign, and cleverly forgot to mention any of that in the application, or that they knew that the Steele Dossier they relied so heavily on was funded by Trump’s political opponents, and consisted primarily of drunk bar talk by Steele’s Primary Subsource, who had engaged in several vodka filled parties with his Russian friends in DC.

      1. “There never was any collusion between the Russian government and Trump and his campaign, transition, or White House. ”

        The Russians were too smart to get Trump involved in something they wanted to see succeed. Pity that we weren’t.

      2. t turns out that one of the big reasons for the Mueller SC investigation was to prevent just that – investigation into what many call SpyGate.

        Spoiler alert: nobody except Qanon loons call anything “spygate.”

  7. From the Washington Compost opinion section to a FISA court application. Amazing.

  8. This American citizen is completely shocked at the unbelievable venality shown by the FBI. I will never look at an FBI agent the same way again. I used to look up to FBI agents as role models for Americans; they were the ‘straight arrows’ of American society. It was a matter of great family pride many years ago when a family member graduated from Quantico and became a FBI agent. No longer.

    Now, FBI agents are now a matter of shame and dishonor to my country.

    1. Plenty of professional agents out there still, I’m sure.

      First rule of policymaking – don’t blame the individuals, change the incentives.

      1. Glad to see you support nice long jail sentences for Strzok and friends.

        That should make the “incentives” clear.

        1. That’s not changing the incentives.

          1. Really? I think nice, long jail sentences for people who would use the power of the FBI to “influence” political elections would be quite the incentive. An incentive to not do it in the future.

            1. Turns out, bringing in another branch of government with slow and not guaranteed outcomes to target individuals is not a viable method of policy reform.

    2. Another Radical Leftist Socialist who hates law and order.

    3. Democrats were foolish to accept Republicans as FBI director. I hope and expect Democrats will never make that mistake again.

      If Republicans want influence and positions, they should earn it in elections. Otherwise, they should have the right to complain and not much else.

  9. I wish you had addressed the defense of the Flynn investigation which says: when the incoming national security adviser is known to have lied publicly and to the VP, he’s vulnerable to blackmail by the Russians. Sometimes I think that smells of the sort of paranoia that James Jesus Angleton suffered from; sometimes it seems reasonable enough–unlikely but the importance of the national security position would justify a thorough look at it.

    1. But he wasn’t blackmailed by the Russians, and probably didn’t intentionally lie to VP Pence. both Pence and Trump have accepted that it wasn’t a lie, just an inadvertent misstatement, due to the rush of getting a brand new Administration operational.

      The lie is that Flynn lied to FBI agents Strzok and Pientka, when he met with them in his WH office. Pientka had been included in a defensive briefing the previous June in order to get a baseline reading on him, and both agents, after the meeting did not believe that Flynn had been untruthful with them.

      What were also lies, were the FD 302s submitted to the defense in the Flynn prosecution. The defense still has not yet received copies of the original 302s filed later in the day Of the interview by agent Pientka, that were seen the next morning by DAG Yates. They were supposedly “lost” – from the FBI’s supposedly secure Sentinel change management system, that tracks every comma changed in any 302 filed in the system. Yet supposedly, Pientka’s original 302s disappeared from the system. Never explained was why DD McCabe had to approve the revised 302s before they were filed, nor why another version, filed more than six weeks after the interview had the information about Strzok and Pientka not believing that that Flynn lied to them removed.

      Other lies included McCabe setting up the meeting, telling Flynn that it was informal, and pressuring him not to have an attorney present. It turns out that the §1001 perjury trap of Flynn was meticulously plotted and planned by McCabe and the people involved from the Counterintelligence Division. After sleeping on it, CD AD Priestap (DAD Strzok’s boss) determined that they should do it by the book, meaning giving the standard §1001 warning, show Flynn the transcript of the call, etc. He was overridden by his boss, DD McCabe. Notably, they also kept the planning away from the DOJ with DAG Yates finding out later in that afternoon after the interview.

      1. Bingo, and Comey and McCabe circumvented Yates to set that meeting up when Trump was president. Then Trump the moron forced Yates to resign by issuing a blatantly unconstitutional executive order and even more chaos ensued a t Justice. Yates later testified she was flabbergasted by Comey’s behavior and she informed McGahn of what was going on. All of this culminated in Republican hero/Trump appointee McGahn recommending Trump fire Flynn and eventually Trump would slander Flynn via Twitter.

  10. “Really, that’s it. If I’m ever accused of a crime, I want Michael Horowitz on my jury.”

    McCarthy did a great job summarizing Horowitz’s Deep State whitewashing history.

    Obama selected him for a reason.

  11. Several things wrong with this ANALysis. First off, Comey and McCabe are Republicans so there was no “partisan bias” at the FBI, although clearly anti-Trump bias was present. Next, Trump saves money on opposition research by simply lying about his opponents…why would Democrats waste money by paying someone to make up lies about Trump when lies can be made up for free?? This author has presented no evidence that Democrats believed Steele was willing to destroy his credibility with the FBI in just for some money…and wouldn’t Democrats risk prosecution by paying someone to lie to the FBI?? And they were such masterminds that they failed to pull it off before the election!?! Finally, all the evidence shows Obama officials doing everything by the book and being perplexed by Comey’s behavior after Trump was inaugurated. So Obama’s DoJ official quickly notified McGahn was she realized Comey was behaving shady.

    1. McCabe a Republican? This is the same guy whose wife took almost $750k in political donations from Dem VA Gov McAuliffe, long time Clinton bagman.

      As for Comey, there are plenty of Never Trumper Republican Deep Staters. Involving a Never Trumper Republican doesn’t make the investigation anywhere neutral. Besides, operationally, it was primarily McCabe, and not Comey, who was involved in the details. All of the meetings around his $70k conference table that included Peter Strzok and Lisa Page. Etc.

      1. So that means James Carville is a Republican because his wife is a Republican?? Duuuhhh. McCabe’s wife ran on a single issue—she was an apolitical doctor that supported the ACA which was based on Romneycare!! Romney is a Republican you f ing idiot!!!

        1. She ran as a Democrat, and the bulk of her campaign money came from Democrats (esp Gov McAuliffe).

          1. Ipso facto, James Carville is a Republican.

        2. Romney is as much a Republican as McCain is a hero.

          1. He was the 2012 Republican candidate for president.

      2. “As for Comey, there are plenty of Never Trumper Republican Deep Staters”

        If your own party is against you, that says something.

  12. To be clear, apart from the Flynn leak, none of this was plainly illegal
    Isn’t lying on a warrant application plainly illegal?

    1. Not if you’re a member of the Federal Class.

      Laws don’t apply to you.

    2. Nobody lied on a warrant application. (Clinesmith lied by altering the email, but he didn’t prepare the warrant application.)

      1. But the warrant application was based off of information Clinesmith (and others) provided.

        1. If you read Clinesmith’s texts you can see he CORRECTLY believes that Comey and McCabe threw the election to Trump with their Keystone Cops asshattery and he believed he enabled Comey/McCabe by being on the asinine Hillary email investigation which was not properly predicated in light of all of Trump’s State officials using WhatsApp to transmit official classified information. So Clinesmith flipped out when he realized the role he played in helping Trump get elected.

          1. What was asinine about the Clinton email investigation? She did not use State Department email when she was Secretary, violating the Official Records Act (as well as departmental policy). Her personal email server contained classified information, which presumably should have violated the Espionage Act. Her private email server appears to have been hacked, esp by the Chinese, who were apparently forwarding her email to them in real-time. No be seems to have doubted that the Russians could have also had copies of her emails too. (Hence the attempted sting of George Popadopolis). And then her attorneys had 30k of her emails deleted, despite, at the time, being under Congressional subpoena.

            How was that investigation not properly predicated? Her work related emails being on her own private email server and not on State Department servers is prima facie evidence of violations of the Official Records Act. It was discovered during FOIA litigation into the Benghazi response (and lack thereof). The State Department responded to requests for any email of hers that were relevant, that there were no responsive documents, yet she had been on email chains that were responsive. It turns out, that was because those emails were going to her Clintonmail.com email address, and not the State.gov email address that she should have been using (but was never set up). The FBI might have been studiously incurious about this, but the facts showing that her violations of the law were handed them on a silver platter, and all that they could do, was what they did do – engage in a sweetheart whitewash, where her coconspirators were allowed to act as her attorneys, and none of them were ever put under oath. Despite that, with them finding classified documents on her server (after her attorneys had carefully curated what they gave the FBI), Comey bypassed the DOJ to read “Gross Negligence” out of the Espionage Act.

            1. Her email wasn’t hacked shit for brains. Every Trump State official was using WhatsApp and Sondland clearly had no intention of ever showing anyone his official WhatsApp messages. Clearly nobody at State is sending every digital text communication via official State email. I would say use your brain but we have established you have shit for brains.

              1. “Shit for brains”.

                And thus you shall always be known. Congrats, fuckface shit-for-brains.

            2. “What was asinine about the Clinton email investigation? She did not use State Department email when she was Secretary, violating the Official Records Act (as well as departmental policy).”

              Same as the W administration. Which was revealed, to a giant “ho-hum” response by Republicans and Republican-apologists, who didn’t care the tiniest bit about who ran an email server until it was Hillary’s IT staff.

      2. There has not really been any other lying by commission that we know of, as Clinesmith did, but plenty of lying by omission. They had reason to believe, as early as August, 2016, that Page was a CIA asset. But it was the hard proof of that was what Clinesmith deleted. Also, not reported to the FISC by the FBI, was that Page had worked with them up through March of that year as a cooperating witness against Russian oligarchs, and had apparently blown the cover of at least three Russian agents in this country.

        Moreover, in the FISA application, much was made of the Steele Dossier. Not mentioned was that the FBI knew by then that it had been funded by the Clinton campaign and the DNC, and that the media corroboration of the story was a direct result of Steele having given his Dossier to those news sources. The FBI knew that, as evidenced by them formally terminating him as a source for exactly that reason. Moreover, they supposedly had corroboration through AAG Bruce Ohr, husband of Fusion GPS Russian expert, who worked closely there with Steele (and may have written several of the articles in his Sossier). They also interviewed Steele’s primary sub source in January, 2017, who told them that it was mostly rubbish, the result of drunken stories told over vodka bottles with his Russian friends, in DC bars. That information was never, of course, included in any of the FISA applications.

        Interestingly, it is looking probable now that Woods Files were never filed with some, or even all, of the Carter Page FISA warrant applications, and that the Mueller investigation fabricated later the one that was produced.

        1. You do realize the whole point of opposition research is to find FACTS about your opponent?? Anyway, a Trump appointee signed the final FISA application and once Trump won Comey knew a Trump appointee would scrutinize their work. Btw, Trump was correct to fire Comey and McCabe because they were instrumental in Trump winning…so they were clearly incompetent and Comey is just another “gift” W Bush have America so thanks for voting for Bush you stupid P O S!

        2. There has not really been any other lying by commission that we know of, as Clinesmith did, but plenty of lying by omission. They had reason to believe, as early as August, 2016, that Page was a CIA asset. But it was the hard proof of that was what Clinesmith deleted. Also, not reported to the FISC by the FBI, was that Page had worked with them up through March of that year as a cooperating witness against Russian oligarchs, and had apparently blown the cover of at least three Russian agents in this country.

          Of course, this description is a misrepresentation. Page did not blow covers off anything. Page was being recruited by Russian agents for intel as part of his efforts to do business with them. Page didn’t rush to the FBI to report this. Rather, after the government learned of this and approached Page, Page cooperated with them. True, he did cooperate rather than lying, and that’s something, and should’ve been disclosed. But he wasn’t a secret agent hero. And of course he kept trying to do business with them even after that, without telling the FBI/CIA about it.

          Interestingly, it is looking probable now that Woods Files were never filed with some, or even all, of the Carter Page FISA warrant applications,

          No, it isn’t. (If by “filed” you mean “filed with the court,” they never are. If by “filed” you mean prepared, then it isn’t looking even a little bit probable.)

  13. “Put charitably, the Obama administration bungled this dimension; it failed to recognize just how partisan its investigation of a political rival would look, and it did far too little to avoid the appearance of partisanship.”

    Let me remind you of a certain meeting Obama had with Mitch McConnell, in an attempt to avoid exactly this. And what did McConnell do?

    1. “Let me remind you of a certain meeting Obama had with Mitch McConnell, in an attempt to avoid exactly this. And what did McConnell do?”

      Based on McConnell’s legislative history, nothing at all. That’s his default setting. “Nope, nope, not gonna do it”.

  14. The FBI was headed by a Republican appointed by a Republican, and staffed by long-time career employees. How is that part of “Obama administration”?

    1. Furthermore the Republican Comey started behaving bizarrely once Trump was elected—so he knew a Trump appointee would be scrutinizing everything he did…and yet he still did it. So Trump appointee Republican Rosenstein signed the final FISA application and Rosenstein appointed Republican Mueller.

    2. You’re trying to reason with Conspiracy-class conservatives?

      Why?

      1. In the olden times, they were the “grown-up” party.

  15. there is reason to believe that the Obama administration milked the investigation for partisan advantage.

    Really? Then why did the NYT have an A1 headline days before the election that read “Investigating Donald Trump, FBI Sees No Clear Link to Russia”? If the FBI was out to smear Trump, why were FBI people telling the press that there was nothing there? And how could the Obama Admin’s activities in January 2017 have anything to do with “partisan advantage”? The election was over.

    When Israel was fighting Obama’s Iran nuclear deal in Washington, it worked closely with Hill Republicans.

    You’re burying the hell out of that lede there, Baker. Why were Hill Republicans working with foreign government officials against U.S. policy? Is U.S. intelligence really supposed to say “oh, I guess I can’t listen to this foreign official’s conversation because he’s talking to an American citizen who’s trying to undermine U.S. policy”? I don’t think so.

    The answer is that there was a *lot* of anti-Clinton sentiment in the FBI’s NY office, and a *lot* of motivation to play the Trump-Russia ties down.

    1. It wasn’t US policy yet. It was Obama Administration policy. Misguided (IMHO) policy, as we found out after Trump reversed it. What are you going to allege here, that the Republicans violated the Logan Act by working with Israelis against what they believed was a common foe? Since when can’t members of Congress not communicate, and even work with foreigners for a common purpose?

  16. Sorry, no, the executive gets very broad authority to decide what U.S. foreign policy is. Was Congress being asked to declare war or approve a treaty? They were not. It may or may not have violated the Logan Act, but it sure violates how foreign policy in the U.S. is supposed to work, and I don’t see why intelligence agencies are supposed to back off on these communications when members of Congress are obviously overstepping their bounds.

  17. “there is reason to believe that the Obama administration milked the investigation for partisan advantage.”

    Whereas Mr. Trump, in all his purity and innocence, has NEVER ONCE milked the investigation for partisan advantage. He barely ever even mentions it.

  18. ” Other political actors will learn the lesson and can be expected to use cutouts in the future to lobby the national security agencies against their domestic enemies.”

    Or they might bypass OUR national security agencies and try to recruit other countries’ investigatory and intelligence agencies to gin up some false narratives against their political adversaries. Perhaps by holding up aid they require.

  19. Mr. Baker’s analysis completely ignores the two biggest facts surrounding the events mentioned.

    1) This supposed partisan taint never resulted in a leak to the media before the election. Not from the administration, not from the FBI, nor even from the DNC (even though they paid for the Steele Dossier). One wonders at the point of a partisan smear that purposely waits until after the election.

    2) On the other hand FBI did leak to Giuliani that the Clinton investigation was being re-opened (for reasons that had nothing to do with Clinton). And the FBI did break DOJ policy and announce that fact days before the election.

    The actual evidence is overwhelming that the FBI had a partisan slant in favour of the GOP. The Muller investigation didn’t even bring in Trump for an in-person interview (despite Clinton being subjected to the same). And for all of Trump’s whining the investigations into both him and his campaign are well justified and resulted in multiple charges and convictions despite major obstruction from the President himself. The fact there’s still so many unanswered questions about what went on between his campaign and Russia.

  20. What I like about the post is that Baker can’t actually criticize the investigation because the man who thinks privacy is a four-letter word has never met a law enforcement/counterintelligence investigation he wasn’t a fan of. But he can’t support it because criticizing Dear Leader is verboten. So he defends the investigation itself but still somehow blames Obama for somethingsomethingconspiracytheoristsmustbehumoredsomething.

    1. Obama “spied on” the Trump campaign by monitoring known Russian agents and just waiting for the Trump campaign to call.

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