Vicious Cycle

How Press Bias Fed FISA Abuse in the Trump-Russia Panic

I've finished the second in what I hope will be a series of posts exploring the risk of partisan abuse of U.S. intelligence authorities. (For the other, see this opinion piece, coauthored with Michael Ellis.) Section 702 renewal is on the agenda for Congress in 2023, and building support for renewal means taking seriously complaints on the right that intelligence agencies were affected by partisan bias in their treatment of Donald Trump's candidacy, presidency, and staff. This means asking whether past practices created at least an appearance or a risk of partisan abuse -- and thus whether any intelligence reforms should address those risks.

In my latest look at the issue, in Lawfare, I note that "respectable" opinion is finally acknowledging that press stories about a Trump-Russia connection may have been slanted by mainstream media, and I examine the role that media bias played in the early stages of the FBI's investigation of Trump world. A few excerpts below:

The Trump-Russia media saga began with a bit of journalistic malpractice. As the GOP convention was preparing to nominate Trump, Gerth tells us, the Washington Post ran one of the early attacks on Trump for kowtowing to Russian interests: a July 18 opinion column from Josh Rogin headlined, "Trump campaign guts GOP's anti-Russian stance on Ukraine." It was wrong. In Gerth's understated words:

The story would turn out to be an overreach. Subsequent investigations found that the original draft of the platform was actually strengthened by adding language on tightening sanctions on Russia for Ukraine-related actions, if warranted, and calling for "additional assistance" for Ukraine. What was rejected was a proposal to supply arms to Ukraine, something the Obama administration hadn't done.

A critical part of the FBI's case against Page was the claim that his many contacts with Russians were part of what its affidavit called "a well-developed conspiracy of cooperation" between the Trump campaign and the Russian government. That's a remarkable claim, and it naturally gives rise to the question of exactly what the parties did to advance this "well-developed conspiracy." The FBI's answer was the GOP platform change—it was presented as a clear step by Trump's associates to move GOP policy closer to protecting Putin's interests.

As evidence of this crucial element, the affidavit relied on what it called an "article in an identified news organization" (that is, Rogin's op-ed) and "assesse[d] that, following Page's meetings in Russia, Page helped influence [the Republican Party] and [the Trump] campaign to alter their platforms to be more sympathetic to the Russian cause." That "assessment" had no basis in fact or any independent investigation; it relied entirely on the inaccurate opinion pieces in the Post, the Times, and the Atlantic.

I go on to suggest FISA reforms to address the problems surfaced by an FBI performance in the Crossfire Hurricane investigation that was disappointing at best -- and a partisan abuse of FISA at worst. You can read the whole thing here: https://www.lawfareblog.com/vicious-cycle-how-press-bias-fed-fisa-abuse-trump-russia-panic

Comments

[BravoCharlieDelta]

I'm surprised the lawfare blog folks let you post that given how they were in on the game with the Federals in their coup against a sitting President. Especially that Whittes guy who was butt buddies with Comey.

[Stewart Baker]

Ben Wittes is nothing if not committed to his views, but he also appreciates people who challenge his views. In an age of opinion tribalism and deplatforming, he deserves some credit for sticking to that view.

[rloquitur]

Yes, but if he gives succor (like Charlie Savage did for Clinesmith) to people like Comey, McCabe and all the others, then he deserves the highest amount of opprobrium.

[Bruce Hayden]

Hey. Wittes was instrumental in the misinterpretation of the Obstruction statute that the DOJ (and esp the Mueller investigation) used to railroad so many people, starting with Gen Flynn. His argument was prominently published in his LawFare blog.

What Flynn did (not remembering precisely his discussion with the Russian ambassador) could never have been “material” (one of the elements Wittes read out of the statute) because it never impeded the investigation - since during his interview, the FBI agents (probably illegally) had a copy of the transcript of the call, and he didn’t. It was essentially a perjury trap. They kept the Mueller investigation open for at least a year as one big perjury trap, using Wittes’ misinterpretation of the Obstruction statute, after they had determined that there had never been any material Russian collaboration by the Trump campaign, and it was shut down almost immediately by AG Barr after taking office, after he pointed out that their investigation was bound by DOJ interpretations (via its OLC) of statutes, grounded in case law, and this misinterpretation of the Obstruction statute being utilized by the Mueller prosecutors ran afoul of that.

[CindyF]

If you would like an interesting read setting out the egregious actions of the government in regard to General Flynn, take the time to read the article at this link. Complete with Court filings.

https://www.uncoverdc.com/2023/03/09/flynn-v-united-states/

[rloquitur]

https://www.cnn.com/2017/05/24/politics/benjamin-wittes-james-comey-friend-anderson-cooper-cnntv/index.html

A simple Google search . . . . not sure how much credit Wittes deserves.

[Publius 4]

If you publish an article on Lawfare which directly eviscerates one of his many pieces of claptrap I will take this seriously.

[grb]

Baker doesn’t mention there were two FISA warrants on Page, the first before he had any connection to Trump whatsoever and the second after that connection ended. Both were based on counterintelligence concerns Page was dealing with Russian intelligence.

So where does that leave Baker’s house of cards? Rather that a minor error in a newspaper story turning FBI suspicions his way, Page had been on their radar two whole years earlier. This resulted from the man’s actions, as he seemed way too desperate and eager to monetize his Russian connections. In 2013 he bragged about being an “informal advisor” to the Kremlin, which wasn’t true but caught the FBI’s eye.

As for the Russians, they made a recruitment pass at him but decided he was a clown. There’s a communication intercept of Russian Intelligence officials laughing at him.

In the end, the FBI concluded Page did nothing wrong. But their attention (and flawed second FISA warrant) wasn’t predicated on miscellanea from a Trump new story, correct or not.

[Stewart Baker]

Citations would be appreciated.

[Michael P]

That would be interesting to see, because the FBI's first application for a FISA warrant against Carter Page was in October 2016 and he was announced as an advisor to the Trump campaign in March 2016.

[grb]

https://www.justsecurity.org/59837/reports-carter-page-subject-fisa-warrant-2013-2014/

[Michael P]

Are you trying to make the FBI look even more incompetent?

Relevant to that time frame: https://www.realclearinvestigations.com/articles/2021/01/25/timeline_how_the_fbi_repeatedly_disregarded_evidence_carter_page_was_no_traitor_to_spy_on_him_126877.html (he was reporting those Russia contacts to the CIA at the time, and the FBI knew about that)

[Stewart Baker]

Thanks. We haven't seen the earlier applications, of course, but it appears that the intercepts did not produce much of value, since they were ended. And if the information they were based upon, or that they produced, was relevant to the case for surveilling Page in 2016, I would have expected it to be included in the application. And one of the key facts in the 2016 application was the claim that Page's conversations with Russian officials led to a change in the platform orchestrated by Trump forces. It was indeed a house of cards, but not my house of cards.

[rloquitur]

"And one of the key facts in the 2016 application was the claim that Page’s conversations with Russian officials led to a change in the platform orchestrated by Trump forces. It was indeed a house of cards, but not my house of cards."

Where is the probable cause even if this were true?

[Bruce Hayden]

It was never about Page, and always about surveiling the Trump campaign, transition, and WH, using the two hop rule. The FISA applications were very intentionally misleading. One FBI attorney (Clinesmith) was fired and suspended from the practice of law, after altering an email from, probably, the CIA that said that Page was an asset of theirs, to that he wasn’t. Big difference - if he had been reporting to the CIA all along, he very likely wasn’t a Russian agent. The applications all relied heavily on the Steele Dossier, supposedly corroborated by other news articles ultimately sourced to the same source, despite the FBI knowing, early on, that the primary subsource for most of the allegations was a former Ukrainian spy, who made up most of the allegations, sitting around a bar in Georgetown, with friends, drinking quantities of vodka. He admitted that, early on, and yet, none of that ever made it into any of the FISA applications. Some of this was found by the IG. The rest by the special prosecutor. None of the FISA warrants would likely had ever been granted by the FISC if the warrant applications had been complete and honest.

[David Nieporent]

It was never about Page, and always about surveiling the Trump campaign, transition, and WH, using the two hop rule.

Oh, god, yet another person who red something on Breitbart who now thinks he's an expert. The "two-hop rule" does not allow "surveilling" of non-targets; it only gives information about metadata. So, yes, it could've revealed all of the instances when Trump campaign officials placed phone calls to, or received phone calls from, the Kremlin. But it did not allow anyone to listen to those calls.

None of the FISA warrants would likely had ever been granted by the FISC if the warrant applications had been complete and honest.

Are you saying that based on your expertise as a lawyer or as a member of the intelligence community? Because nobody, not the FISA court or even Barr's DOJ, has made that claim.

Clinesmith's alteration of the email applied to the last renewal of the warrant, not the earlier ones.

[rloquitur]

None of the FISA warrants would likely had ever been granted by the FISC if the warrant applications had been complete and honest.

Are you saying that based on your expertise as a lawyer or as a member of the intelligence community? Because nobody, not the FISA court or even Barr’s DOJ, has made that claim.

Probably true--but that's more of an indictment of the FISA Court. There was never any probable cause regarding Carter Page. And there is a curious lack of outrage regarding the altering of the email.

[BravoCharlieDelta]

Remember when Wittes would tweet "Boom" with that little toy cannon every time Comey would illegally leak stolen classified information to him?

[The Margrave of Azilia]

By all means, protect people from partisan investigations.

I hope this can be done while protecting the little guy, too.

They may end up with a law singling out public officials and candidates for special protections, while allowing the average Joe and Josephine to be spied on and oppressed with impunity.

When Parliament passed a law in the 1660s so the government could search private premises for unapproved pamphlets and books, they put in an exemption for the homes of the aristocracy.

Let’s see if we end up with something like that. I wouldn’t be surprised.

UPDATE: I see the author's proposed reform: "The FBI should have to meet a heavy burden before relying on press reports to prove critical facts in FISA applications. [etc.]"

For the average Joe and Josephine, this simply means they'll get the FISA warrant *before* the matter gets into the press, using other sources like "confidential informants" or whatever. Then after they get the warrant they can leak their version of events to the press, just to make sure Joe and Josephine don't get away with the crime of being suspects.

Meanwhile, Senator Claghorn, being a famous big shot, will be protected to the extent that the FBI will have to avoid invoking the various unreliable press reports about the Senator. And Claghorn will always be able to claim that his bad press tainted the warrant process.

Aristocratic privilege.

[rloquitur]

And Clinesmith should have been maxed out . . . .

[rloquitur]

"A critical part of the FBI's case against Page was the claim that his many contacts with Russians . . . ."

What "case" against Page--recall that the evidentiary predicate for a FISA warrant is that Page had to be an agent of a foreign power. Here's what DOJ website says: "upon a showing of probable cause to believe that the subject of the surveillance is a foreign government or organization engaging in clandestine intelligence activities or international terrorism, or is an individual engaging in clandestine intelligence activities or international terrorism on behalf of a foreign government or organization."

Note the requirement of probable cause. There was none.

Second, look at Andy McCarthy's takedown of Clinesmith's maneuverings to get an intelligence guy to sign off on Clinesmith's draft representations to the Court

Third, look at the WaPo article showing all the contacts with Russians, really a nothing-burger. That gave cover to a Logan Act investigation of Michael Flynn--and supposedly our current President signed off on that--then Flynn was subjected to unusual procedures in documenting what he said to the FBI (e.g. Lisa Page editing the 302, a huge no-no).

[rloquitur]

Page must have been the cleanest guy ever--the institutional pressure to get something on him must have been enormous. Just see how Bogdan Vechirko had to pay a price for being in the wrong place at the wrong time and incurring the (misguided) wrath of DFL leadership in Minnesota.

[Dr. Ed 2]

In Massachusetts, a public employee who commits a crime while on duty loses his pension (usually).

I think a lot of things wouldn't have happened had the FBI agents *known* that they would lose their pensions. Clearly state the obligations of a FISA warrant and that anyone who is involved in one lacking those loses his/her/its pension.

THAT would work.

[BravoCharlieDelta]

They know they will not be held accountable for their actions. That’s why they continue to do them.

Once they murdered JFK and got away scot-free, it really was the end for the rest of us. If they can kill a sitting President and attempt a coup against another and get away with it, what will they do to us?

Throw me in a DC gulag for years without a speedy trial if I pray to close to an abortion clinic? Or if I follow my police escort around DC?

[Ben_]

Leftists would make sure they got paid for lying, one way or another.

[Caphon]

The potential for the news stories themselves to be sourced to “unnamed intelligence officials” (particularly under cover of op-ed’s) is the very grossest part of this vicious cycle. Intelligence plants the info, news reports it, Intelligence uses the news stories as basis for further action.

[Rev. Arthur L. Kirkland]

How does a stream of right-wing, authoritarian whining come to be published at at ostensibly libertarian website?

An invitation from an "often libertarian," "libertarianish," faux libertarian right-winger might be involved.

[Ed Grinberg]

So, Prof. Baker posts about serious abuse by the federal intelligence / law enforcement agencies, and you're calling him authoritarian?! Do you even know how full of shit you are?

[BravoCharlieDelta]

He's a Federal bootlicker. He loves the State and the Federal Class.

[BravoCharlieDelta]

No one whines mor around here than you, Rev. Sandusky.

[Rev. Arthur L. Kirkland]

Disaffected, delusional, faux libertarian right-wingers are among my favorite culture war casualties.

And the target audience of a fringe conservative blog with a vanishingly scant academic veneer.

[Ben_]

They will use exactly the same playbook next time.

[CindyF]

What is so pathetic is that those who were paying attention (and had reading and comprehension skills) were aware of this at the time. However, any attempt then to point out the facts resulted in being called "Russian sympathizers" and "Putin-supporters". Now the self-proclaimed "experts" present the facts as if they have just now been discovered, and only due to their research.

[Ghost of Patrick Henry]

Where were the Judges???? How could any judge approve a warrant based on that crap??

[Mr. Bumble]

Same place they are now with the treatment of Jan. 6 suspects and of course don't forget anyone connected in any way to Trump.

[Bruce Hayden]

The FISC judges are limited to the information in front of them. The DOJ, and esp the FBI, lied through their teeth on their FISA applications, mostly by omission, though there was some lying by commission (e.g. Clinesmith). The FBI knew that Steele and his primary subsource were unreliable from the start. That most of his allegations had been proven false. They knew that there had been no real collaboration of the Steele Dossier in their FISA applications – it all came from Steele. By the 2nd renewal, they knew for a certainty that Page was reporting to another intelligence community agency (likely the CIA) the whole time, and that information was clearly material, yet mysteriously left out.

And the only people who paid a price for lying were Clinesmith (fired, and for a short period of time suspended from the practice of law), Strzok, and the Deputy Director, both fired (though Strzok is suing to get his job back).

[Ben_]

News flash: warrants are a joke. Judges rarely do their duty to scrutinize anything related to a warrant and outright lying on sworn statements to get a warrant is more-or-less never punished.

[CindyF]

https://www.uncoverdc.com/2023/03/09/flynn-v-united-states/

The illegal actions by the feds against General Flynn are set out in the article at the above link.