The Democratic memo went to extraordinary lengths to argue that Steele was “credible,” ignoring the fact that the FBI fired him for lying and was relying on mostly anonymous sources whose credibility, much less identity, could not be determined or substantiated. This was not fully or truthfully explained to the court. A principal source who lies has no credibility, which means his claims utilizing other unidentified “sources” who supposedly gave him information are equally untenable.
The most astonishing claim in Schiff’s memo was that, after the first surveillance, “DOJ provided additional information obtained through multiple independent sources that corroborated Steele’s reporting.”43 Conveniently, this information was heavily redacted so there was no way of knowing whether it was true. Common sense dictates that it was not. If support for Steele’s claims was collected during the surveillance or through other means, why wasn’t Page ever charged with a crime? The answer should be obvious. There was no corroborating evidence. In the alternative, whatever was collected was of insignificant evidentiary value.
Finally, most notable in the Democratic “rebuttal” memo was what was missing. When the “Nunes Memo” revealed that deputy FBI director McCabe testified that no warrant would have been sought without the “dossier,” Democrats insisted this was erroneous and that their memo would dispute this finding.44 It did not. Why? It was omitted likely because what McCabe reportedly said to the committee was true.
Fred Fleitz, who spent nineteen years at the CIA and also once served as a senior staff member on the House Intelligence Committee, described it this way:
This is one of the most crucial points in the Republican memo, but the Democrats ignored it.
This is a major omission. Either McCabe did or did not say the Steele dossier was the crucial information that drove the FISA warrant request. The committee’s Republicans should declassify the transcript of McCabe’s remarks to expose what is very likely a huge Democratic misrepresentation.45
In the end, the Democratic “rebuttal” managed to rebut almost nothing of any consequence. How could it? Director Comey admitted to Trump that some, if not all, of the “dossier” was “salacious and unverified.”46 Reportedly, Deputy Director McCabe reiterated the same to Congress when he testified behind closed doors.47 Most importantly, Page had been a credible witness for the FBI, and there was no trustworthy or corroborating evidence he had done anything wrong. None of this deterred the government from relying on the “dossier” to spy on Page in an apparent attempt to inflict harm on Trump, his campaign, and his presidency.
The evidence shows that the bulk of the warrant application was wholly contingent on Steele and his dirty “dossier.” There was nothing else. Without it, the FISA court would never have countenanced surveillance by granting the initial and subsequent warrants. Substantial reliance on the “dossier” was confirmed by yet another committee’s findings on the other side of the Capitol.
The Grassley-Graham Senate Memo
It wasn’t just the House Intelligence Committee’s majority members who found shocking evidence that government officials had deceived the FISA court to spy on Trump campaign adviser Carter Page. On the Senate side, the Judiciary Committee conducted a separate investigation and gathered its own set of incriminating evidence.
A memorandum co-signed by Committee Chairman Charles E. Grassley and Chairman of the Subcommittee on Crime and Terrorism Lindsey O. Graham set forth an equally compelling case of wrongdoing by the FBI and Department of Justice in obtaining their surveillance warrant which allowed them to secretly listen in on Page’s conversations and to seize any of his past electronic communications such as text messages and emails.48 Bear in mind, the warrant was obtained after Page had left the Trump campaign in the fall of 2016.
The Senate memo completely confirmed the findings contained in the House memo, but produced even more evidence of impropriety by high government officials:
The FBI never corroborated any of the main claims in the dossier;
The FBI represented to the FISA court that Steele was “reliable” and “credible”;
The FBI learned Steele was not reliable and had “lied” almost immediately after seeking the initial warrant, but did not notify the court of this;
The FBI knew Steele had talked with the media, but the bureau informed the court otherwise;
The FBI cited a second source for its information, knowing it came from the original source;
The FBI continued to “vouch” for Steele in subsequent warrants even though he had been terminated because he was no longer credible;
FBI director Comey knew the dossier was “unverified,” but signed off on the warrant applications anyway;
The FBI knew of the political origins of the dossier, but buried this material information in a footnote in the warrant applications;
The FBI knew that Clinton associates were also feeding Steele anti-Trump information.
These accounts uncovered by the Senate Judiciary Committee were troubling on many different levels.
The FBI’s eagerness to unearth deleterious material on Trump was the driving force behind the bureau’s actions to spy on one of his campaign associates, Page. In the process, the FBI and DOJ deliberately misused the FISA court to secure a warrant to spy. They deceived a succession of judges by willfully misrepresenting the information in their possession, vouching for its credibility while likely knowing full well that it was, in a word, incredible.
The Senate memo left little doubt that the FBI and DOJ tricked the FISA court by masking their knowledge that the “dossier” was nothing more than a political “hit-job.” Grassley and Graham had access to the FISA warrant applications and found a stunning fact—the government was hiding something quite important:
The FBI discussed the reliability of this unverified information provided by Mr. Steele in footnotes 8 and 18 of the FISA warrant application. First, the FBI noted to a vaguely limited extent the political origins of the dossier. 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.49
Even if a discerning judge read every single footnote, he or she would never have discovered that it was Clinton and the Democrats who had helped manufacture the sketchy “dossier” in concert with an opposition research firm, Fusion GPS. It was nowhere in print. Their identities were not disclosed.
Take a close look at footnote 8 in which the government and Democrats insist they revealed the political nature of the “dossier” ’s origins. It is a model of obfuscation:
Source # 1 was approached by an identified U.S. Person, who indicated to Source # 1 that a U.S.-based law firm had hired the identified U.S. Person to conduct research regarding Candidate # 1’s ties to Russia. (The identified U.S. Person and Source # 1 have a long-standing business relationship.) The identified U.S. person hired Source # 1 to conduct this research. The identified U.S. Person never advised Source # 1 as to the motivation behind the research into Candidate # 1’s ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate # 1’s campaign.50
A FISA judge, or any human being for that matter, would have to be telepathic to comprehend the facts underlying this well-disguised footnote: the Clinton campaign and Democrats were the ones who paid for the anti-Trump “dossier” that was manufactured by Fusion GPS and contrived by a foreign national, Christopher Steele, who based his unverified information on dubious Russian hearsay sources who may or may not exist. The FISA judges, assuming they even read the footnote, could never have discerned the truth because it was so well concealed.
The political motivations and funding behind the “dossier” were crucial and indispensable facts that should have been highlighted to the court by the
FBI and the DOJ, not obscured in a couple of footnotes that never revealed a clear and honest version of how the document was generated.
This underscores just how sneaky and misleading top government officials were in their representations before the FISA judges. The FBI and DOJ well knew that they could mask the truth and get away with it. It is a documented fact that 99 percent of all FISA applications are approved.51 The government was aware of this and knew it would gain permission because the judges trusted officers of the court to be honest in their representations. The FISA court operates in secret. It is not an adversarial venue. No opposing views are presented because no other side is present. The integrity of the process is entirely dependent on the government being truthful and forthright.
There were other unprincipled tactics employed by the FBI, some of which would constitute outright fraud in any other circumstance or venue. Did the bureau or the Justice Department ever advise the court it had fired Steele because he “lied”? No. They prevaricated in another carefully worded footnote that he was terminated only because of an “unauthorized disclosure of information to the press.”52 This was a half-truth, at best. Did they tell the court their second source, a media story, was based on the original source? No. That inconvenient fact was omitted.53 In short, the evidence revealed that Steele lied, then the FBI covered it up and misled the FISA court.
Senate investigators also uncovered another extraordinary fact. Not only did the Clinton campaign fund Steele’s phony dossier, but Clinton’s allies provided some of the bogus information contained therein:
Mr. Steele’s memorandum states that his company “received this report from (redacted) U.S. State Department,” that the report was the second in a series, and that the report was information that came from a foreign sub-source who “is in touch with (redacted), a contact of (redacted), a friend of the Clintons, who passed it to (redacted).” It is troubling enough that the Clinton Campaign funded Mr. Steele’s work, but that these Clinton associates were contemporaneously feeding Mr. Steele allegations raises additional concerns about his credibility.54
Clearly, the Clinton campaign and her associates were the driving force behind the dossier that was used to spy on her political opponent and investigate the Trump campaign. But Comey appears to have covered up the FBI’s interactions with Steele. The Senate Judiciary Committee accused him of providing it with an account that was “inconsistent with information contained in FISA applications the Chairman and Ranking Member later reviewed.”55 The committee concluded, “it is unclear whether this was a deliberate attempt to mislead” members of Congress, and he thereafter refused “to resolve discrepancies he provided in a closed briefing and information contained in classified documents.”56
One of the lesser known facts is that Steele himself cast doubt on the truth of his own “dossier.” In a defamation case brought against him in a British court, Steele was forced to answer questions propounded by what American courts call “interrogatories,” which are written questions that must be responded to under a signed “statement of truth.” In criminal jeopardy if he lied, Steele admitted that his claims against Trump in the “dossier” were derived from “raw intelligence” based on “limited intelligence.”57
Steele further acknowledged his accusations against the Trump campaign were “unverifiable” and that his sources would likely deny the allegations. In a veiled reference to the partisan motivations behind the document—the role of Fusion GPS and the Clinton campaign—he cautioned, “its contents must be critically viewed in light of the purpose for and circumstances in which the information was collected.”58 This was a subtle way of confessing that Steele’s work was not worth the paper on which it was written. In plain language, it was an untruthful political attack intended to vilify an opposing candidate.
In light of the FBI’s determination that Steele had “lied” to agents, Grassley and Graham requested that the Department of Justice open a criminal investigation into Steele’s conduct for potential prosecution of making false and misleading statements.59 The senators said Steele’s actions precipitated a chain of events that had a serious and harmful impact when it declared, “Mr. Steele’s apparent deception seems to have posed significant, material consequences on the FBI’s investigative decisions and representations to the court.”60
Abuse of Power and Other Crimes
Under the FISA law, the government was required to establish probable cause not only that Carter Page was acting as a foreign agent for Russia, but that he committed some identifiable federal crime while doing so.61 The “dossier” purported that Page was an agent working with the Kremlin to carry out a bribery scheme and other crimes, but beyond the wild assertions in the document, there was no other independent or supporting evidence. It appears that the FBI and DOJ relied entirely on Steele and his “dossier” in their probable cause proof of both agent and crime.
Since the document itself was completely unverified, based on multiple hearsay, funded by an opposing political campaign, and compiled by a foreign national who admitted he was “desperate that Donald Trump not get elected,” it was woefully inadequate for the purpose of gaining a warrant to surveil. It might have been enough for a tabloid rag at the checkout counter of a supermarket. But it came nowhere near being sufficient in any court of law in America, especially a Federal Intelligence Surveillance Court deciding whether there was probable cause to grant legal approval to engage in one of the most serious intrusions on a constitutional right—that is, to spy on a U.S. citizen.
Had the judges who signed the succession of four warrants to surveil Page known the truth about Steele and his “dossier,” it is highly doubtful that they would ever have signed off on it. The judges were relying on the honesty and integrity of the FBI and DOJ officials to be candid and forthright in their representations. After all, the lawyers who submitted and argued the matter were considered “officers of the court.” They were duty-bound by law and ethics to be truthful. It seems they were not. Instead, they appear to have concealed vital evidence and deceived the court.
Comey, in particular, deserves recrimination. His signature is on the early warrant applications although he admitted to Congress that he believed the “dossier” was “salacious and unverified.” Within ten days of signing the first application, Steele was terminated for breaching his agreement not to speak with the media and lying about it. Comey should have immediately notified the FISA court that the FBI’s confidential informant was no longer a reliable source and ended the surveillance of Page. He did not. Instead, he allowed the spying to continue and signed two more warrant application extensions that were dependent on Steele and his “dossier.”
As FBI director, Comey should never have allowed such an unsubstantiated document compiled by a biased and discredited source to be utilized to spy on an associate of a presidential candidate. The surveillance continued under Comey’s direction even after Trump became president.
According to congressional investigators, FBI deputy director Andrew McCabe told Congress when he testified behind closed doors in December 2017 that the bureau had verified none of the claims in the “dossier,” except that Page had given a speech in Moscow.62 The speech, as pointed out, was not unusual and perfectly legal. The visit was also a matter of public knowledge which Steele could easily have acquired to insert in his “dossier” for the purpose of mischaracterizing it as some clandestine plot to conspire with the Russians. McCabe, like Comey, signed off on the last FISA application knowing full well its conspicuous deficiencies.
Deputy Attorney General Sally Yates and her successor, Rod Rosenstein, also signed warrant applications affirming their belief in the contents of the “dossier,” its accuracy, and the reliability of their source, Steele. Surely, they also knew the legal justification for their surveillance was deeply flawed. Yet they did it anyway.
If the dossier was the primary basis for the warrant to surveil and it was nevertheless unverified, as McCabe reportedly admitted to Congress, t
hen the legal justification for the warrant to surveil was insufficient as a matter of law. This means that all evidence collected as a consequence of the surveillance can never be used in a prosecution of any person. In what is known as the “exclusionary rule” and a companion doctrine known as “the fruit of the poisonous tree,” the U.S. Supreme Court ruled that defective warrants and improper searches which violate a person’s constitutional rights under the Fourth and Fifth Amendments serve as a bar to any evidence derived therefrom.63 These rules apply specifically, but not exclusively, to cases involving wiretaps.64
Whatever evidence the FBI, the Justice Department, or the special counsel extracted from Page’s emails, texts, and wiretapped conversations can never be used in any prosecution against him or anyone else. This effectively forecloses a “collusion” case unless evidence was acquired through other means completely unconnected to the “dossier.”
However, high-ranking officials at the FBI and DOJ could and should be prosecuted for using their positions of authority to abuse the law and the constitutional rights of American citizens. At least six different felony statutes appear to have been broken.
First, it is a crime for government officials to use their position to deprive someone of their constitutional rights. Known to some as the “abuse of power” statute (18 U.S.C. 242), its formal name is “Deprivation of Rights Under Color of Law.”65 Referring to the Department of Justice analysis of this statute found on the DOJ’s website, the following is stated:
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