The Senate Judiciary Committee, led by Chairman Chuck Grassley and Lindsey Graham joined the growing chorus of Republican Congressman calling for the appointment of a second Special Counsel.
The argument is fairly straightforward. From yesterday’s post:
Inspector Generals have no prosecutorial power. But they can refer individuals for prosecution.
IG’s can place federal employees under oath.
But IG’s lack subpoena power over non-federal employees. This means that federal employees who come under OIG investigation can stymie the process by simply resigning.
The DOJ Inspector General specifically lacks authority to investigate misconduct by DOJ attorney-prosecutors, who under the current arrangement answer only to Justice’s Office of Professional Responsibility.
These limitations are meaningful – as noted by Congressman Trey Gowdy:
Goodlatte on calls for a 2nd special counsel to probe FISA abuses: “We believe this matter extends beyond the Department of Justice.” Gowdy:
“I have been resistant to special counsels in the past…but there are 24 witnesses outside the reach of the Inspector General”
— Chad Pergram (@ChadPergram) March 6, 2018
There are twenty-four witnesses outside the reach of the Inspector General…
Probably more. Consider the number of Obama Administration officials now out of federal employ.
However, as I noted previously, prosecutorial power may already be in place – as recently described by AG Jeff Sessions:
I have appointed a person outside of Washington, many years in the Department of Justice, to look at all the allegations that the House Judiciary Committee members sent to us – and we’re conducting that investigation.
And Assistant Attorney General Stephen Boyd in an earlier letter to House Judiciary Chairman Bob Goodlatte:
The Attorney General has directed senior federal prosecutors to evaluate certain issues raised in your letters.
These senior prosecutors will report directly to the Attorney General and the Deputy Attorney General.
These senior prosecutors are separate from the Inspector General and his team. More here.
The full scope of Session’s Outside Prosecutor remains to be seen. It may prove significant. If prosecutorial scope is more limited, a Special Counsel will prove a likely remedy.
Which brings us back to Grassley’s letter to Sessions.
Included in Grassley’s Special Counsel request were two attachments:
Grassley’s Special Counsel Request Letter – sent to Attorney General Jeff Sessions on March 15, 2018.
Attachment 1 – Grassley’s request for a “comprehensive review of potential improper political influence, misconduct, or mismanagement in the conduct of the counterintelligence and criminal investigation” into Russia and Trump. – sent to Inspector General Horowitz on February 28, 2018.
Attachment 2 – A 3rd – and less redacted – version of the Senate Grassley Memo.
Here are the entirety of the three documents strung together:
Two specific items of note from Grassley’s letter to Sessions:
1) The attached request to the Inspector General asked that he investigate issues surrounding the application and renewals of the FISA warrant.
It also requested that he review potential improprieties in the FBI’s relationship with Christopher Steele, the potential conflicts of interest posed by the involvement of high-ranking DOJ official Bruce Ohr in serving as the cut-out between the FBI and Mr. Steele after the FBI terminated its formal relationship with him, apparent unauthorized disclosures of classified information to the press, the FBI and DOJ’s handling of the investigation of Lt. Gen. Michael Flynn, and other matters.
2) Based on the release of the memorandum drafted by the minority staff of the House Permanent Select Committee on Intelligence, the FBI has now provided a further un-redacted version of that referral memorandum, also attached here. The new version provides the public for the first time the actual [Steele] quote from the FISA application that we flagged for the Justice Department as inconsistent with claims made in the British libel litigation filings.
Special Counsel request aside, it’s Grassley’s February 28, 2018 letter to the Inspector General that proves most interesting.
From Grassley’s letter to IG Horowitz:
Over the past year, the Department of Justice has made a number of documents relating to these issues available for review by the Chair and Ranking Member of the Senate Judiciary Committee and its Subcommittee on Crime and Terrorism.
These documents have raised several serious questions about the propriety of the FBI’s relationship with former British Intelligence agent Christopher Steele, including its use of allegations compiled by Mr. Steele for Fusion GPS and funded by Perkins Coie on behalf of the Democrat National Committee and the Clinton campaign.
These documents also raise questions about the role of Bruce Ohr, a senior Justice Department official whose wife worked for Fusion GPS, in continuing to pass allegations from Steele and Fusion GPS to the FBI after the FBI had terminated Mr. Steele as a source.
Grassley identifies six documents being sent to IG Horowitz as classified attachments to Grassley’s letter:
1. An October 2016 Foreign Intelligence Surveillance Act (FISA) application relying significantly on Mr. Steele’s allegations and credibility to seek surveillance of Carter Page;
2. Three renewal FISA applications – dated January, April, and June of 2017 – similarly relying on Mr. Steele’s allegations and credibility to seek approval to surveil Mr. Page;
3. A Human Source Validation Report relating to Mr. Steele;
4. Numerous FD-302s demonstrating that Department of Justice official Bruce Ohr continued to pass along allegations from Mr. Steele to the FBI after the FBI suspended its formal relationship with Mr. Steele for unauthorized contact with the media, and demonstrating that Mr. Ohr otherwise funneled allegations from Fusion GPS and Mr. Steele to the FBI;
5. Spreadsheets summarizing the details of interactions between Mr. Steele and the FBI, including the dates of contacts, the subject-matter of those contacts, and information relating to whether and when any payments may have been made;
6. Form 1023s and other documents memorializing contacts between the FBI and Mr. Steele.
Form 302s are used to report or summarize FBI interviews. Form 1023s are used to document meetings between FBI officials and FBI confidential human sources.
Additional relevant documents to which the Committee was provided access to review cannot be identified in this unclassified letter. Thus, those documents are detailed more fully in the attached classified memorandum.
Here resides the makings of a second Grassley Senate Memo…
Point number 4 regarding Bruce Ohr is particularly interesting. He was extensively interviewed by the FBI – indicating significant ongoing contact with Steele:
Numerous FD-302s demonstrating that Department of Justice official Bruce Ohr continued to pass along allegations from Mr. Steele to the FBI after the FBI suspended its formal relationship with Mr. Steele for unauthorized contact with the media, and demonstrating that Mr. Ohr otherwise funneled allegations from Fusion GPS and Mr. Steele to the FBI.
Here are Ohr’s form 302 dates along with actual interview dates from footnotes contained in Grassley’s letter:
- Ohr FD-302 12/19/16 (interview date 11/22/16)
- Ohr FD-302 12/19/16 (interview date 12/5/16)
- Ohr FD-302 12/19/16 (interview date 12/12/16)
- Ohr FD-302 12/27/16 (interview date 12/20/16)
- Ohr FD-302 1/27/17 (interview date 1/27/17)
- Ohr FD-302 1/31/17 ( interview date 1/23/17)
- Ohr FD-302 1/27/17 (interview date 1/25/17)
- Ohr FD-302 2/8/17 (interview date 2/6/ 17)
- Ohr FD-302 2/15/17 (interview date 2/14/17)
- Ohr FD-302 5/10/17 (interview date 5/8/17)
- Ohr FD-302 5/12/17 (interview date 5/ 12/17)
- Ohr FD-302 5/16/17 (interview date 5/15/17)
Note the difference between actual interview date and 302 date.
In only one instance were they done on the same day. In the first interview nearly one month passed before the meeting was documented. Two other 302s were belatedly filled out on this same day.
Related events immediately leading up to the 12/19/16 date of first three Ohr 302s:
December 9 2016 – The CIA tells Congress that Russia conducted hacking operations to prevent Hillary Clinton from winning presidency.
December 9 2016 – McCain provides a copy of Russian “Dossier” to FBI director James Comey.
December 9 2016 – The FBI compiles a classified two-page summary and attaches it to intel briefing note on Russian cyber-interference in election for President Obama.
December 9 2016 – Obama orders a full review of Russian-election hacking.
December 14 2016 – Citing unnamed intelligence officials (likely Strzok or Page), Washington Post reports on “Russian election hacking”.
December 15 2016 – James Clapper signs off on Executive Order changes impacting NSA Data-Sharing – Section 2.3 of Executive Order 12333 – Procedures for the Availability or Dissemination of Raw Signals Intelligence Information by the NSA.
December 16 2016 – Hillary Clinton directly blames Russia for election loss while speaking to donors in New York. She also blames FBI Director Comey for re-opening email investigation.
One other date is worth mentioning – strange as it is:
May 23 2016 – Nellie Ohr applies for HAM radio license, possibly to create a covert communication channel.
It was previously known that Bruce Ohr had multiple contacts with Steele in 2016. Not known was this contact continued into 2017 – potentially well into May.
Grassley poses a series of 31 questions for Inspector General Horowitz to pursue. I will highlight a few – some are portions of a larger question:
Question 8) Did the FISA order allow the FBI to obtain emails Page sent prior to the order, during the time he was affiliated with the Trump campaign? If so, were any Obama political appointees able to read internal Trump campaign emails before the election? During the transition period? If so, who, when, and for what purpose?
Was the FISA warrant retroactive. Did the Obama Administration view Trump Campaign information before the election.
Question 13) How many people at the FBI and the Department of Justice reviewed and approved the Page FISA warrant and renewal applications? Did anyone ever raise any concerns with its accuracy or sufficiency?
Who at the FBI and DOJ were directly involved.
Question 14) Did anyone express any concerns about the propriety of presenting unverified, uncorroborated claims from the Steele dossier as the basis for a FISA warrant on an American citizen?
If so, how were these concerns addressed.
Question 15) Which specific dossier claims presented in the FISA application, if any, had the FBI independently verified at the time they were first presented to the court? Which claims, if any, had been verified by the time each of the renewal applications was filed?
Probably rhetorical. All evidence says the Dossier was virtually unverified.
Question 17) What Mr. Comey disclosed in a private briefing to the Chairman and Ranking Member Feinstein about the timeline of the FBI’s interactions with Mr. Steele appeared inconsistent with information contained in FISA applications the Chairman and Ranking Member later reviewed.
What is the reason for the difference between what Mr. Comey told the Chairman and Ranking Member in March 2017, and what appears in the FISA application? Did Director Comey intentionally mislead the Committee?
The answer to this question may prove important. Comey lied or the FISA Application was falsified.
Question 18) Was Peter Strzok aware of Steele’s claims when he opened the so-called Trump/Russia counterintelligence investigation? Did Mr. Steele’s claims play any role in the decision to open this investigation, despite the stated basis of foreign intelligence regarding George Papadopoulos?
I’ve always suspected the Dossier played a role. The Papadopoulos excuse is extraordinarily weak.
Question 19) To what extent did Mr. Steele’s information form any part of the basis for the FBI to expand its investigation from Mr. Papadopoulos to Mr. Page, Lt. Gen. Michael Flynn, and Mr. Manafort?
Another important question. Was the Dossier the source of all surveillance and investigative activities. When did surveillance of Manafort first begin.
Question 21) Was anyone in the Justice Department, including senior leadership, aware that Mr. Ohr continued to pass information from Steele and Fusion GPS to the FBI even after Steele was suspended, and terminated, as a source?
This. Based on 302 and FBI interview dates, Ohr may have had ongoing contact with Steele through mid-May 2017.
Question 26) Who at the Department of Justice or the FBI was aware that Fusion was the subject of a Foreign Agents Registration Act (FARA) complaint alleging that it failed to register as a foreign agent for its work on behalf the Katsyv family to undermine Magnitsky Act sanctions against Russia?
I’ve long questioned this. Browder’s Senate Testimony provided evidence of Fusion’s financial ties to Russia. See, Fusion GPS, the Trump Dossier, Russian Money & the Magnitsky Act and The Ongoing Fusion GPS Revelations
Question 27) Was anyone involved in the decision to use Steele’s dossier information in the FISA application aware that Steele’s client, Fusion GPS, was accused of being an unregistered foreign agent for Russian interests at the time?
Same as Question 26. This is potentially important. If the FBI and/or DOJ knew Fusion was subject to FARA, they had an obligation to notify the FISA Court.
Question 29) Did anyone from the FBI or the Department of Justice leak to the media the fact that officials briefed the President-Elect about the contents of the dossier?
The media had widely dismissed the Dossier as unsubstantiated and unreportable. It was only after learning that Comey briefed President-Elect Trump that CNN reported on the Dossier.
Question 30) Who leaked to the press the presumably classified contents of the publicly reported call between the Russian ambassador and Michael Flynn?
This was a material felony leak of classified information. The ramifications of this particular leak were far-reaching.
Question 31) Was the [General Flynn] interview conducted by the FBI agents on January 24, 2017 part of a criminal investigation or a counterintelligence investigation? Did the FBI agents who interviewed Lt. Gen. Flynn believe that he lied to them or intentionally misled them? Did the FBI agents document their interview with Lt. Gen. Flynn in one or more FD-302s? What were the FBI agents’ conclusions about Lt. Gen. Flynn’s truthfulness, as reflected in the FD-302s? Were the FD-302s ever edited? If so, by whom? At who’s direction? How many drafts were there? Are there material differences between the final draft and the initial draft(s) or the agent’s testimony about the interview?
Another important question. There have been unverified reports that McCabe ordered the alteration of the Flynn-related 302s.
Comey told Congressional investigators that FBI Agents who conducted the Flynn Interview did not believe Flynn had actually lied.
Page 2 of the Memo – bottom paragraph.
Older 2nd Version:
Specifically, on October 21, 2016, the FBI filed its first warrant application under FISA for Carter Page. [Redacted] The bulk of the application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier.
Newer 3rd Version:
Specifically, on October 21, 2016, the FBI filed its first warrant application under FISA for Carter Page. This initial application relies in part on alleged past Russian attempts to recruit Page years ago. That portion is less than five pages. The bulk of the application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier.
Page 3 of the Memo – top paragraph.
Older 2nd Version:
In footnote 8 the FBI stated that the dossier information was compiled pursuant to the direction of a law firm who had hired an “identified U.S. person” – now known as Glenn Simpson of Fusion GPS – [Redacted] The application failed to disclose that the identities of Mr. Simpson’s ultimate clients were the Clinton campaign and the DNC.
Newer 3rd Version:
In footnote 8 the FBI stated that the dossier information was compiled pursuant to the direction of a law firm who had hired an “identified U.S. person” – now known as Glenn Simpson of Fusion GPS – “to conduct research regarding [Trump’s] ties to Russia.” The FBI further “speculate[d]” that Mr. Simpson “was likely looking for information that could be used to discredit [Trump’s] campaign.” The application failed to disclose that the identities of Mr. Simpson’s ultimate clients were the Clinton campaign and the DNC.
Page 3 of the Memo – 3rd paragraph:
Older 2nd Version:
(U) But there is substantial evidence suggesting that Mr. Steele materially misled the FBI about a key aspect of his dossier efforts, one which bears on his credibility. [Redacted].
Newer 3rd Version:
(U) But there is substantial evidence suggesting that Mr. Steele materially misled the FBI about a key aspect of his dossier efforts, one which bears on his credibility. [Redacted] In the October 2016 FISA application, and in each of the three renewals, after relaying Steele’s dossier allegations against Carter Page, the FBI states: “[Steele] told the FBI that he/she only provided this information to the business associate [Fusion GPS] and the FBI.” (emphasis added). Indeed, the FISA renewal application in January 2017 notes that Steele had received [Redacted].
Page 3 of the Memo – bottom paragraph:
Older 2nd Version:
While not explicitly stated, this is presumably the article by Michael Isikoff of Yahoo News, titled “U.S. Intel Officials Probe Ties Between Trump Adviser and Kremlin.” [Redacted] the application attempts to explain away the inconsistency between Mr. Steele’s assertion to the FBI and the existence of the article, apparently to shield Mr. Steele’s credibility on which it still relied for the renewal request.
Newer 3rd Version:
While not explicitly stated, this is presumably the article by Michael Isikoff of Yahoo News, titled “U.S. Intel Officials Probe Ties Between Trump Adviser and Kremlin.” After noting that Mr. Steele had claimed to the FBI he had only provided this information to the FBI and Mr. Simpson, the application attempts to explain away the inconsistency between Mr. Steele’s assertion to the FBI and the existence of the article, apparently to shield Mr. Steele’s credibility on which it still relied for the renewal request.
The FBI told the FISA Court that Steele had only provided information from the Dossier to Fusion and the FBI.
The FBI used Isikoff’s article in their initial October 21, 2016 FISA filing. Information in the article came directly from the Dossier.
The FBI was aware of Steele’s leaking to Yahoo News’ Isikoff and Mother Jones’ David Corn. Steele’s relationship with the FBI was terminated on October 30, 2016 for this reason.
Christopher Steele also stated in British litigation filings he had leaked to these reporters.
Someone is lying.
I’ve previously maintained that Grassley is running point on a coordinated strategy between Congress (Grassley, Goodlatte & Nunes) and the Department of Justice (Sessions & IG Horowitz – possibly including Rosenstein & Wray).
In similar fashion to Grassley’s letter regarding McCabe, I’m guessing Grassley already knows the answers to many of the questions he’s asking.
Grassley close his letter to IG Horowitz with this:
In addition to these questions, please report on the issues raised in the classified attachment and in our classified referral of Christopher Steele.
That’s the document I’d really like to see.