Witch Hunt

by Gregg Jarrett

  Chapter 3

  Lying and Spying

  I think spying did occur.

  —ATTORNEY GENERAL WILLIAM BARR, SENATE TESTIMONY, APRIL 10, 2019

  I have not gotten answers that are satisfactory. And some of the facts I’ve learned don’t hang together with the official explanations of what happened. Things are just not jiving.

  —ATTORNEY GENERAL WILLIAM BARR, INTERVIEW WITH CBS NEWS, MAY 31, 2019

  Media madness and Democrat delirium reached a new level of irrational frenzy the moment Attorney General William Barr uttered five simple words while testifying before a Senate appropriations subcommittee on April 10, 2019. In observing “I think spying did occur,” the attorney general was stating the obvious. Any reasonable person who had been following the “collusion” hoax and ensuing witch hunt was well aware that the FBI and Department of Justice not only had wiretapped a Trump campaign associate and gained access to his electronic communications but had retained one or more undercover informants to covertly infiltrate the campaign to gather incriminating evidence that was never found. It was classic spying, to be sure. Yet Trump’s opponents fumed incessantly over how Barr had misappropriated what they regarded as such a crass term to describe the truth of what had occurred.

  The attorney general is an experienced and learned man. He did not recklessly employ terminology to mislead or misrepresent. He had been asked a simple question and chose his words carefully to give an even simpler answer. The controversy was sparked when Barr informed senators that he would examine diligently why the FBI had initiated its counterintelligence investigation and “the conduct of intelligence activities directed at the Trump campaign” because “I think spying on a political campaign is a big deal, it’s a big deal.”1 Indeed it is. The somewhat stunned and disbelieving Senator Jeanne Shaheen (D-NH) later posed a follow-up question in the negative, the answer to which she seemed not to expect:

  SHAHEEN: So, you’re not—you’re not suggesting though that spying occurred?

  BARR: I don’t—well, I guess you could—I—I think spying did occur. Yes, I think spying did occur.

  SHAHEEN: Well let me . . .

  BARR: But the question was whether it was predicated—adequately predicated and I’m not suggesting it wasn’t adequately predicated but I need to explore that. I think it’s my obligation. Congress is usually very concerned about intelligence agencies and law enforcement agencies staying in their proper lane and I want to make sure that happened.2

  What did Barr mean by “adequately predicated”? He intended to find out whether the spying had been conducted lawfully, and he seemed skeptical. At one point in his testimony, he ventured that “there was probably a failure among a group of leaders” at the FBI, and he felt “an obligation to make sure that government power was not abused.” By any reasonable standard, Barr’s statements made perfect sense. His attitude is precisely what any law-abiding American would want from their attorney general. As the chief lawyer for the federal government, his role is to ensure that everyone upholds laws without exception and to bring prosecutions where warranted. This necessarily includes any violations of law by those who serve in government—even law enforcement. If people within the FBI and DOJ abused their positions of trust and committed illegal acts, Barr would be duty bound to hold them accountable. A lawful warrant, for example, that was obtained by unlawful means—such as lying to a court—would constitute criminal behavior.

  Once Barr uttered the sacrilegious S-word, he was universally condemned by the media elite and Democrats predisposed to traduce anyone who dared to be fair to Trump or other persons whose rights might have been violated. The attorney general, who had a distinguished record and reputation as a nonpolitical “lawyer’s lawyer” was suddenly denounced as a legal heretic who had succumbed to Trump’s presidential skullduggery.3 House speaker Nancy Pelosi (D-CA) decided that Barr had gone “off the rails,” while Senate minority leader Charles Schumer (D-NY) insisted that the AG was “perpetuating conspiracy theories.”4 NBC News’s Chuck Todd replicated the “conspiracy theory” meme by insisting that there was “zero factual basis” to say that spying had occurred.5 The Meet the Press moderator must have overlooked the eavesdropping warrant and slept through the multitude of stories on how an undercover agent for the FBI had insinuated himself into the Trump campaign. Tim O’Brien of Bloomberg likened Barr to a “ruthless and sleazy attack dog” in the mold of the infamous lawyer Roy Cohen.6 Washington Post columnist Jennifer Rubin wrote that lawmakers should demand the AG’s resignation for being “Trump’s toady.”7 Not to be outdone by anyone, CNN’s chief legal analyst, Jeffrey Toobin, described Barr’s terminology as “paranoid lunacy of the right wing.”8 The attorney general’s impressive résumé of accomplishments and sterling reputation for integrity should have disabused any person of the notion that he is paranoid or prone to lunatic embroidery. By employing the word spying, he spoke in plain language that was both accurate and apropos to the circumstance. By describing what had transpired, he was telling the uncomfortable truth. The unreasoned reaction it provoked only made it seem more so.

  The verb spy encompasses a broad meaning. The Oxford Dictionary defines it this way: “work for a government or other organization by secretly collecting information about enemies or competitors.”9 Let’s apply this to the known facts. The FBI and Justice Department sought and secured a warrant to wiretap Carter Page, who had served for a few months as a Trump campaign foreign policy adviser. FBI director James Comey, who signed the first warrant application, asserted without equivocation that Page was a Russian agent and hence a treasonous enemy of the United States. That turned out to be completely untrue, of course. But the Foreign Intelligence Surveillance Court judge trusted that Comey was telling the truth and that the evidence he had submitted had been duly verified, as FBI rules and FISC regulations required.

  Once the warrant was issued on October 21, 2016, the FBI began a wiretap on Page’s communications devices and accessed all his electronic data, including emails and texts. For up to a year, Bureau agents secretly listened to his conversations and collected a variety of information without his knowledge. Although Page had left the Trump campaign by the time the surveillance of him commenced, the warrant allowed the FBI to retroactively access and read his communications with campaign officials and staff during the six months he had been an unpaid adviser.10 It was a way to spy on him going both forward and backward. In the absence of the court order, that extreme intrusion would have been an otherwise impermissible violation of the Fourth Amendment rights of Page to be secure from unreasonable search and seizure by the government. But the issuance of the judicial order did not render the term spying inapplicable or irrelevant. There is legal spying and illegal spying. Both are a proper use of the terminology.

  It was confounding and silly for the media and Democrats to take such vociferous exception to Barr’s use of the term spying. They were quibbling over semantics and drawing a distinction where none existed. The FBI’s conduct matched all of the definitional elements of the word. That is, the government was the active operator, information was collected, it was accomplished through secrecy, and the target was alleged to have been an enemy of the country. Thus, when Attorney General Barr stated, “I think spying did occur,” he was delivering an honest description of what had happened. He openly acknowledged reality, to the shock of Democrats and the liberal media, who are unaccustomed to candor. The facts appear indisputable because a redacted version of the wiretap warrant application was subsequently made public for all to read, and FBI officials have testified that Page was surveilled. Columnist Byron York distilled the question to its bare essence when he asked, “Is a wiretap ‘spying’? It is hard to imagine a practice, whether approved by a court or not, more associated with spying.”11

  The AG’s statement was supported by the established evidence and was unquestionably accurate. Barr then explained that it was a vital part of his job as attorney general to examine whether the spying
had been “adequately predicated.” If the warrant application was dishonest and defective, then it had not been adequately predicated. If Comey and others who had prepared the application willfully misrepresented incriminating facts and concealed exculpatory evidence, a fraud on the court had been perpetrated. A firestorm erupted over the unvarnished truth. It was not at all “stunning or scary,” as former director of national intelligence James Clapper called it, unless he was referring to alarmingly illegal behavior by the FBI.12 He was not. He seemed to be stunned and scared that government malfeasance might be investigated and exposed. As former Justice Department lawyer Hans von Spakovsky pointed out, “Simply ignoring the issue of whether the spying against the Trump campaign was justified would be irresponsible and a dereliction of duty by the attorney general.”13 In a democracy, the government of one party should never be permitted to misuse its immense powers in law enforcement and intelligence gathering to target the candidate of an opposing party. That was what the attorney general vowed to investigate. He expressed his suspicions.

  Barr found it bewildering that the FBI had never bothered to notify Trump or his top aides that Russians might be trying to infiltrate his campaign. “That is one of the questions I have, that I feel normally the campaign would have been advised of this,” said the attorney general.14 Former New Jersey governor Chris Christie and former New York mayor Rudy Giuliani were senior campaign officials with national security experience as former federal prosecutors. According to Barr, they would be the kind of people the FBI would have typically alerted. Nor had congressional leaders been fully and candidly briefed on the counterintelligence case. Comey’s FBI had deliberately kept them in the dark, sidestepping traditional agency protocols. Kimberley Strassel of the Wall Street Journal offered the most plausible explanation for the secrecy:

  Mr. Comey and his crew have also testified that they were all convinced Mrs. Clinton would win the election. That would have meant that no politician other than the incoming Democratic president would have known the FBI had spied on the Trump team. Nor would the public. A Clinton presidency would have ensured no accountability.15

  When the unexpected happened and Trump was elected president, the FBI and intelligence officials such as Clapper and CIA director John Brennan were forced to change tactics and reverse course. They concocted a plan to leak the anti-Trump “dossier” to the media by first telling Trump about it. Evidence shows that it was Clapper’s idea and Comey agreed to it. They met with Trump on January 6, 2017, in a conference room at Trump Tower in Manhattan. Adhering to their prepared script, Comey stayed behind to selectively brief Trump on the “salacious and unverified” material in the “dossier.”16 The director later said that Trump had been shocked. Comey also advised the president-elect that he was not personally the subject of their counterintelligence investigation.17 This was untrue. Trump was most certainly the main target of the probe.18 News of the Trump debriefing on the “dossier” was then leaked to journalists by Clapper and others. That gave journalists the pretext or excuse they needed to air and publish stories, reasoning that since the incoming president had been made aware of the “dossier,” they were free to run with the story even though the collection of memos was unverified and might well be false.

  Was President Obama a party to the scheme? Consider the sequence of events and the known facts. On January 5, 2017, the day before the Trump briefing, Obama held a meeting at the White House with Comey, Clapper, Vice President Joe Biden, acting attorney general Sally Yates and national security advisor Susan Rice. They deliberated ways to keep Trump in the dark about the counterintelligence operation in which he was the prime target.19 The next day, Comey delivered an incomplete, if not deceptive, briefing to the president-elect. Thereafter, the media was fed the “dossier” designed to damage him. The incoming president was blindsided by the outgoing president’s collaborators.

  It was a clever and insidious subterfuge. And it worked perfectly. Within days, CNN and BuzzFeed were running full tilt with the narrative that Trump had “colluded” with Russia. Those news organizations and others that repeated the story had corroborated none of the accusations against the president-elect. Neither had the FBI. Simpson and Steele, with financial backing from the Clinton campaign and the Democratic National Committee, had finally accomplished their devious goal, albeit belatedly. They had not stopped Trump from ascending to the highest office in the land, but they were now poised to drive him from that office and undo the election result.

  It is revealing that Comey did not tell the president-elect about the rest of the “dossier,” which now totaled thirty-five pages in seventeen separately dated memos that had been composed by Steele over the previous six months. Trump was not advised that the document accused him of “colluding” with the Kremlin to win the election. He wasn’t informed that Clinton’s campaign and Democrats had paid for it. Nor did Comey divulge that the FBI had been spying on former campaign adviser Carter Page for three months, eavesdropping on his conversations and accessing all of his electronic communications forward and backward. Trump was not told that the FBI had declared in court papers that Page was a Russian spy. Consistent with the Obama meeting at the White House, the director deliberately hid all of that information from the incoming president. Those were lies by omission. Remember, the purpose of a counterintelligence investigation is to collect intelligence involving a foreign threat to be provided to the president. Instead, Comey was using unsubstantiated information under the guise of a counterintelligence operation to investigate Trump and his campaign, all the while actively concealing it from the president-elect.

  Comey later claimed that he had decided to brief Trump on the “dossier” only because journalists were poised to publicly report the information contained therein.20 This is untrue according to the Senate Judiciary Committee, which determined that “the media generally had found the dossier’s unverified allegations unreportable, and CNN only broke the story on the dossier because Mr. Comey briefed the President-Elect about it.”21 Given the way the media tied their stories to the Comey-Trump meeting, the FBI director’s account seems remarkably similar to many of the other deceptions that have severely blemished his reputation as a fair broker of the truth.22 In truth, honesty was never Comey’s strong suit. For example, when Barr ventured that “spying did occur” against the Trump campaign, the fired FBI director pretended to be dumbfounded during an interview and sputtered, “I don’t understand what the heck he’s talking about.”23 Comey knew what Barr was talking about because Comey was the one who did it. He signed the first warrant application to spy on Carter Page, and then he signed two more renewals. But he subsequently feigned ignorance, claiming that “the FBI and the Department of Justice conduct court-ordered electronic surveillance. I have never thought of that as spying.”24 Tell that to Page, who had no idea that FBI agents had accessed all of his electronic communications and were eavesdropping on his telephone conversations. Having interviewed him, I can attest that he certainly considers himself the victim of government “spying,” regardless of whether a court sanctioned it or not.25 Someone then illegally leaked it to the media, which reported that Page was under surveillance as a suspected spy.

  Semantics aside, there is compelling evidence that the secret FISA court that issued the secret order to secretly surveil Page was also a victim of secret lies by top officials at the FBI and DOJ.

  The Secret FISA Star Chamber

  The term Star Chamber is a pejorative that can be traced to late-fifteenth-century England, where a high court would convene to dispense “justice” in secret. Without public accountability, judges would dispense harsh rulings arbitrarily and in contravention of ordinary rules meant to ensure fairness. Secrecy invited corruption and abuse. The Star Chamber was so anathema to the fundamental rights of man to be judged impartially and in open court that the Habeas Corpus Act abolished it in 1640–1641.26

  When the Framers crafted our Constitution more than a century later, they were acutel
y aware and fearful of the kinds of judicial perversions that had taken place during such secret proceedings in their antecedent country. That was the primary reason they devised the guarantee of “a speedy and public trial, by an impartial jury” embodied in the Sixth Amendment and the protection against self-incrimination in the Fifth Amendment.27 The Supreme Court recognized that openness and transparency in public judicial proceedings were instrumental to democracy when it stated, “The Star Chamber has, for centuries, symbolized disregard of basic individual rights.”28

  Notwithstanding historical concerns that secret courts tend to breed corrupt acts and corrosive abuses of power, in 1978 Congress passed the Foreign Intelligence Surveillance Act (FISA), establishing a secret court.29 At the time, it was considered a necessity to counter the prevalence of foreign spies during the Cold War. Privacy rights, it was felt, would have to be sacrificed for the sake of security. Though this specially constituted tribunal does not preside over trials as the Star Chamber did centuries ago, the FISC considers and grants government requests to conduct electronic surveillance on individuals for foreign intelligence purposes. There is a total of eleven judges, all of whom are appointed by the chief justice of the US Supreme Court. However, they do not sit “en banc” or all at once. Instead, a single judge, who normally presides in a district court somewhere in the federal system, rotates into Washington, DC, for a week at a time and occupies a secure courtroom in the US District Courthouse on Constitution Avenue.

  Not only are the proceedings of the FISC secret, but they are typically conducted “ex parte,” meaning that only the government’s side is presented. It is a lopsided process.30 In other words, there is no one of an adversarial nature in attendance to test or remonstrate against the truthfulness of what applicants from the FBI and Justice Department are representing to the court. To a great extent, the judges must trust that government actors are honest, forthright, and fair in presenting evidence in support of “probable cause” that a Fourth Amendment intrusion should be allowed. Statistical evidence suggests that the government is given extraordinary deference. This is the inherent flaw in the FISC.