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A Detailed Rebuttal to Media Criticisms of the Nunes Memo

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The MSM  has greeted the House Memo with a willful mixture of sneering criticism, casual dismissal and outright indifference.

To understand this response, its always worth remembering the entire media structure has been running the same collective story – twenty-four hours a day – for the last eighteen months.

Their cumulative level of investment in a unidirectional narrative is enormous.

The House Memo threatens every structure upon which that narrative has been built. Thus, the immense media pushback.

Note: A FISA order on an American citizen must be renewed by the FISC (FISA Court) every 90 days and each renewal requires a separate finding of probable cause.

James Comey signed three FISA applications on behalf of the FBI. Deputy Director Andrew McCabe signed one. Sally Yates signed two FISA applications on behalf of the DOJ. Dana Boente and Rod Rosenstein each signed one.

Every time a FISA application was being signed, any information previously willfully withheld, was being willfully withheld again.

The purpose of this post is to note various assertions made in the House Memo and the implications that result from them, while responding to MSM criticism of each assertion.

Memo Assertion: Deputy FBI 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.

This is a crucial point contained within the House Memo.

Implication: Information outside the Steele Dossier was insufficient to obtain a FISA Warrant.

The FBI knew no FISA Warrant would be granted without the Steel Dossier. By all serious accounts the FBI relied almost solely on the Steele Dossier to obtain a FISA Warrant and the three subsequent FISA extensions.

Democrat Representatives Schiff and Swalwell have both disputed that McCabe made this statement. Both have also refused to provide any proof McCabe said otherwise. Or to state what McCabe did say.

But Nunes made the following statement on a segment with Brett Baier:

It’s a summation of a long interview. And that is definitely what he said — not to mention we have other witnesses who said very similar things.

The House Intelligence Committee Majority Members recently released a Memo Release – Charge and Response. They again reiterate an earlier point:

No one, including the FBI officials who reviewed the memo, has identified any factual errors.

Republican Representative Lee Zeldin commented on McCabe:

And made an accurate statement regarding Schiff:

Byron York reported the following:

Republicans who have read the McCabe transcript said the memo’s characterization of McCabe’s statement is accurate. In addition, they cited another FBI official who, when asked what the application’s chances of being approved would have been without the dossier, answered about 50-50 — unacceptably low odds when applying for a surveillance warrant.

Over the entire 33-year period, the FISA court granted 33,942 warrants, with only 12 denials – a rejection rate of 0.03 percent of the total requests. An application with 50-50 odds would not be considered for submission to the FISA Court by any historical standard.

If the Steele Dossier was not completely valid, the entire basis for A FISA Warrant was granted on false pretenses.

Memo Assertion: The primary source document used to obtain a FISA Warrant – the Steele Dossier – had not been corroborated at the time of the FISA application.

Another crucial point of the House Memo.

Implication:  The information presented to the FISA Court as fact had not been verified by the FBI as factual. The FBI either knew the Dossier was NOT factually based or they had no idea if it was factual or not.

Corroboration of the Steele dossier was in its “infancy” at the time of the initial Page FISA application – per FBI Counterintelligence Head Bill Priestap.

Following Steele’s termination by the FBI, a source validation report conducted by an independent unit within the FBI assessed Steele’s reporting as only minimally corroborated.

James Comey would later refer to the Steele Dossier as “salacious and unverified” in his written prepared statement before the Senate Select Committee on Intelligence on June 8, 2017.

As pointed out by Jason Beale, DNI James Clapper also verified the lack of corroboration and validation of the Steele Dossier:

Per James Clapper, the Steele Dossier had not been verified by December 2016.

But the FBI used it as the basis for a FISA Warrant on October 21, 2016.

Memo Assertion: The Carter Page FISA application extensively cited a September 23, 2016, Yahoo News article by Michael Isikoff, which focused on Page’s July 2016 trip to Moscow. This information was used to corroborate the Steele Dossier.

Implication: The FBI has admitted they did not corroborate the Steele Dossier to any testable threshold internally. A Yahoo News article was instead provided to the FISA Court for this purpose.

Steele has admitted in British Court filings that he leaked to Yahoo News’ Isikoff – along with several other media outlets – at the direction of Fusion GPS.

The Isikoff Yahoo article is actually derived from information that Steele leaked to Isikoff and Yahoo News. The source of the Isikoff article (Steele) was not disclosed to the FISA Court.

The FBI used Circular Reporting to falsely corroborate the primary piece of evidence they were unable or unwilling to corroborate themselves.

The FBI presented uncorroborated evidence to the FISA Court as fully corroborated – both internally (FBI) and externally (Isikoff) – when it was neither.

The article’s author, Michael Isikoff, was himself “shocked” at the news his article was used as evidence. As he noted:

My story is about the FBI’s own investigation. It’s self-referential.

Obviously the information that I got from Christopher Steele was information the FBI already had.

So it seems a little odd that they would be citing the Yahoo! News story about the matter that they are investigating themselves based on the same material that had been separately presented to the FBI before I was ever briefed by Christopher Steele.

Steele leaked to Isikoff who wrote the article for Yahoo News. The Isikoff article was then used to help obtain a Title I FISA grant to gather information on Page. This search was then leaked by Steele to David Corn at Mother Jones. Circular Reporting.

Memo Assertion: Steele should have been terminated by the FBI as an information source for his September 2016 media contacts but was not.

Implication: The FBI’s standards are clear. By failing to maintain confidentiality, Steele had violated the cardinal rule of source handling and become a “less than reliable source”. By their own internal rules Steele should have been terminated and his research disallowed.

A month later, Steele was suspended and then terminated by the FBI for his unauthorized disclosure of his relationship with the FBI in an October 30, 2016, Mother Jones article by David Corn.

The FBI used Steele’s Dossier as the single primary piece of evidence before the FISA Court anyway.

Memo Assertion: The FISA order was NOT under Title VII (Section 702) – which specifically relates to an American person caught up in the process of Foreign Surveillance.

Implication: A likely Title I Request – or a Traditional FISA. Page was probably a direct target of surveillance – painted as a foreign agent by the Steele Dossier.

This is a significant point – and potentially a major abuse of the FISA Court and process.

A Title I FISA grant would allow not only for surveillance of the targeted U.S. person, but also follow up surveillance of any of his direct contacts. The intent behind Title I is to capture a complete network.

Carter Page became a direct target of Title I surveillance – despite having been previously cleared by the FBI.

As Byron York noted:

Page was caught up (and wiretapped) in a 2013 case against Russian agents in New York who were trying to recruit Americans, including Page. Page was never charged, he was not a Russian agent, and the case ended with no action against him.

According to knowledgeable sources, the FBI did include references to Page’s past as background material in the wiretapping application. It wasn’t a big part of the application, but it was a part, and the House committee should have included a sentence on that in the memo.

When the FBI went public before the memo’s release with the charge that it contained “material omissions of fact that fundamentally impact the memo’s accuracy,” the bureau was referring to the Page history omission.

According to those sources, the dossier made up by far the largest part of the case for wiretapping Page. The Yahoo story was “cited extensively,” as well. The Papadopoulos case, Page’s history, and the general discussion of Russian ill will made up a much smaller part.

So it appears the memo was correct when it described the dossier as an “essential” part of the warrant application.

I agree with York when he notes “even though Page’s history was a relatively small part of the story, the House should have mentioned it, if only to address the FBI’s concern about leaving a material fact out of the memo”.

You can read more about Page here and here.

There is one other question implicitly raised regarding Carter Page.

It’s captured in a September 20, 2017 letter from Senate Judiciary Chairman Chuck Grassley:

I write to inquire about whether the FBI ever provided the Trump campaign with a defensive briefing or other warning regarding attempts to infiltrate the campaign by people connected with, or compromised by, Russian intelligence.

Such briefings are one of the tools that the FBI often uses to thwart attempts by foreign intelligence services to infiltrate organizations or compromise U.S. citizens. Such a briefing allows innocent, unwitting organizations and individuals to take defensive action to protect themselves.

If the FBI did provide a defensive briefing or similar warning to the campaign, then that would raise important questions about how the Trump campaign responded. On the other hand, if the FBI  did not alert the campaign, then that would raise serious questions about what factors contributed to its decision and why it appears to have been handled differently in a very similar circumstance involving a previous campaign.

If the FBI was truly concerned about Carter Page’s allegiances, one can only assume the FBI would have a duty to inform the Trump Campaign. There is also historical precedent as noted by Grassley.

As far as I know, the FBI took no such action.

Memo Assertion: The Page FISA application mentions information regarding Trump campaign advisor George Papadopoulos. 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 Peter Strzok.

Implication: It appears to be guilt by non-association. The FBI seems to be using a past case on a differing person as proof of broader collusion. A case which, despite slim evidence, led to the opening of the Trump-Russia counterintelligence investigation. One might term the use of this FISA data reference as Circular Investigating.

The next three Memo Assertions deal with disclosure of motive, funding and use of opposition research.

Some on the Left have argued these issues of motive and funding have little legal merit (See here). A response posted in a WSJ article took a differing position:

As Kerr admits, context is everything in these fact determinations. It’s hardly irrelevant that one presidential campaign is being spied on with the collusion of the existing administration and its candidate. Perhaps prosecutors should be mindful of their high ethical obligations in such a unique case. After all, there is the small matter of the credibility not only of law enforcement but the entire democratic process riding on it.

The article’s author, James Freeman made a related argument:

If this is accurate, and if it’s also acceptable to include uncorroborated information in warrant applications, this means that the bar for approving government spying against domestic political opponents is significantly lower than most Americans have been led to believe.

Of additional note, FISA applications are inherently held to a higher standard than more traditional Courts.

FISA judges do not simply evaluate whether a particular surveillance request meets the necessary requirements—whether, for example, the government has established probable cause. Rather, they must determine whether the rules under which the government has proposed to operate while collecting information in bulk satisfy existing law.

The process of applying for a FISA Court order is designed to be much more than a rubber-stamping operation. It is an iterative process in which the presiding judge, members of the FISA Court staff, and government lawyers responsible for preparing applications engage in a dialogue. In the course of considering each individual application, a judge might insist on additional information from the government, require a hearing on a particular issue of fact or law, modify the government’s proposed order, or impose additional conditions or limitations on what the proposed order permits the government to do.

Full and complete information is crucial to this process.

Memo Assertion: Neither the initial application in October 21, 2016 – nor any of the renewals – disclosed the role of the DNC and/or the Clinton Campaign’s funding of the Steel Dossier.

Implication: The FBI is expected to paint a full and true picture for the FISA Court. A willful omission of facts indicates an intent to create a desired outcome – a FISA Warrant grant.

The initial FISA application does not include Steele’s employment by Fusion GPS or founder Glenn Simpson. Fusion GPS was paid by Perkins Coie – a law firm representing the DNC. The application does not mention that the FBI had separately authorized payment to Steele for the Dossier and related information.

The FISA application ignored or concealed Steele’s anti-Trump financial and ideological motivations.

The FBI willfully – and overtly – hid material facts from the FISA Court that might prove damaging to their chances of obtaining a FISA Warrant grant.

Memo Assertion: Associate Deputy Attorney General Bruce Ohr provided the FBI with all of his wife’s opposition research, which had been paid for by the DNC and Clinton campaign via Fusion GPS.

Implication: The FBI was knowingly using opposition research secretly funneled to it from a senior DOJ official in order to obtain a FISA Warrant.

Information created by the senior DOJ official’s wife. And funded by the DNC and Clinton Campaign.

Ohr’s wife Nellie Ohr was employed by Fusion GPS to assist in the cultivation of opposition research on Trump. The Ohr’s have known Glenn Simpson since at least 2010 – when Bruce & Nellie Ohr worked with Glenn Simpson on a report for the DOJ.

The Ohrs’ relationship with Steele and Fusion GPS was concealed from the FISA Court in all FISA applications – as was the transfer of information by DOJ’s Bruce Ohr.

Yet again, the FBI willfully – and overtly – hid material facts from the FISA Court that might prove damaging to their chances of obtaining a FISA Warrant grant.

Memo Assertion: Steele told Bruce Ohr that he “was desperate that Donald Trump not get elected and was passionate about him not being president” in a September 2016 conversation.

Implication: The FBI willfully hid Steele’s self-stated political motivations in the creation of the primary source of evidence presented to the FISA Court.

Steele’s bias was recorded by Ohr at the time of occurrence – but this information was omitted from any of the FISA applications.

The FBI knew of this because it was relayed to the FBI when they interviewed Ohr several times following the election to document Ohr’s contacts with Steele.

There have been recent reports that the FISA Court was aware of a “political context” behind the Steele Dossier.

Maybe.

But if so, why did the FBI take every opportunity to hide the extent of that political context.

The FBI failed to disclosed:

The role of the DNC and/or the Clinton Campaign’s funding of the Steel Dossier.

Steele’s employment by Fusion GPS or founder Glenn Simpson.

It had separately authorized payment to Steele for the Dossier and related information.

It used opposition research secretly funneled to it from a senior DOJ official – created by that official’s wife.

The Ohrs’ relationship with Steele and Fusion GPS.

Steele’s self-stated political motivations in the creation of the Steele Dossier.

This also leaves aside the far more serious charge the FBI presented uncorroborated evidence to the FISA Court as fully corroborated.

The FBI knew they either hadn’t – or couldn’t – corroborate the Steele Dossier.

Instead, the FBI used Circular Reporting to falsely corroborate the primary piece of evidence they were unable or unwilling to corroborate themselves.

One final point.

The FISA application (likely a Title I application) date of October 21, 2016 is important. Note the following timeline:

  • October 20 2016 – NSA Rogers briefed by NSA compliance officer on 702 NSA compliance audit.
  • October 21 2016 – NSA Rogers shuts down all “About Query” activity. Permanently. Reports activity to DOJ and prepares to go before FISA Court.
  • October 21 2016 – DOJ & FBI sought and received a FISA probable cause order (not under Title VII) authorizing electronic surveillance on Carter Page from the FISC.
  • October 26 2016 – NSA Rogers personally informs FISA Court of 702(17) violations.

The FBI & DOJ appear to have rushed the FISA application knowing NSA Rogers was preparing to go before the FISA Court.

Which begs the question – why wasn’t Page’s FISA application revisited when Rogers went before the FISA Court on October 26, 2016.

That’s a likely question for FISA Judge Contreras…now forcibly recused in the Flynn case…

I’ll close with an observation by Jason Beale that perfectly captures the Left’s response to the House Memo:

The House Memo is a threat to the Left. They will continue to attack and dismiss it. They will ultimately fail.

The House Memo was only the first salvo.

Nunes is rumored to be working on a second disclosure. His goal is to force the release of all underlying documents.

Meanwhile, Senator Grassley has his own Senate Judiciary Memo. He has already called for the release of its underlying documents. I’m hearing the Grassley Memo may be forthcoming in the next few weeks. I’m also hearing it will contain “next level” information.

And don’t forget, the Inspector General’s report is still to come.

 

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