Audit of FISA Applications Provide More Evidence of Political Motivation for Carter Page Warrants

In the aftermath of the DOJ's Inspector General finding material finding "apparent errors or inadequately supported facts" in the DOJ's FISA applications to surveil Carter Page, the DOJ undertook a comprehensive review of practices to determine whether those errors were common or uncommon.

The answer to that question would help determine whether the Carter Page warrants were politically motivated or not. If those errors are common, for example, then the FBI is systematically riding roughshod over Americans' rights so that they can get secret warrants issued and surveil anyone and everyone they possibly can.

If, on the other hand, those errors were unique to Carter Page, then the FBI is generally by the book, but for some reason, in this case, they broke the rules so that they could procure a warrant. Conservatives will argue that the reason was politically motivated.

Benjamin Wittes from the Lawfare Blog put it well: "If the FBI botched its applications for Foreign Intelligence Surveillance Act warrants against Mr. Page because of political bias, after all, problems of the sort Mr. Horowitz identified are most likely unique to this case."

In the first phase of the review, the Horowitz audited 29 FBI applications to the FISA court and found "widespread problems" including deficient documentation in 4 of the 29 and "apparent errors or inadequately supported facts" in the remaining 25. The discovery that every one of the reviewed applications had problems (an average of 20 issues/application) supports the position that the FBI's application process is awful and the Carter Page warrants were not politically biased but just business as usual.

The next phase of the investigation would look more closely at the errors and determine if they were material or not--if they resulted in warrants that should not have been granted. They determined that "nearly all of the inaccuracies" were minor. 

This supports the argument that the FISA warrants against Page and the errors committed to guarantee them were politically motivated.

Furthermore, it is worthwhile to compare the errors found in the comprehensive audit to those in the Carter Page warrants. 

From the audit:

"The FBI stressed in its new filing that many of the apparent mistakes it identified were minor, involving typographical errors, agents using the wrong dates for underlying documents or misidentifying underlying documents."

From the original review of the Carter Page warrants:

"The errors in the FISA applications on Carter Page were significant and serious. They were not, in my experience, the kind of errors you would expect to find in every case. ... It’s not acceptable to rely on a Confidential Human Source and then not check with his FBI handler in describing his bona fides to the FISA Court. It’s not acceptable to omit some potentially exculpatory recorded statements made by the FISA target to a source. It’s not acceptable to leave unresolved credibility and perhaps factual disputes between a key source and his primary subsource. It’s not acceptable, after closing the key source, to continue to get information from him through an Office of the Deputy Attorney General (ODAG) staffer, thereby effectively treating him as a subsource of the ODAG staffer. And it’s certainly not acceptable for an FBI attorney to alter an email from another intelligence community agency as to whether the other agency had contact with the FISA target or treated him as a source. (Internal citations omitted.)"

I will leave it to the reader to decide for themselves if the errors in the Carter Page applications were similar to those found in the subsequent audit, and if not, what was the driving force that led to the errors in the former.

Nike is Becoming a Corporate Karen

Without an accompanying announcement, on the evening of July 2^nd, Nike has memory-holed Washington Redskins merchandise. The instigating factor seems to be that “87 investment firms sent” a letter to Nike (and three other corporate sponsors). But the woke activists have been clamoring for this change for a decade, and they finally have a triggering an event to make the final push.

There’s no question that the term “redskins” is a racial slur and is unacceptable to use in any context other than the football team, but what has changed in the past week that makes the term more offensive or the situation worse than it was a month ago? The murder of George Floyd has nothing to do with the name of an NFL team in Washington. There is no connection to police brutality; George Floyd was not a Native American; his murderer has no relationship to the football team. Changing the name of a football team will not improve a single black life.

Nike has become especially activist in the past few years, most notably cancelling a shoe that celebrated Betsy Ross and the American flag because a handful of white supremacists used it as their symbol. (There is no evidence that this was a popular or common symbol among these people.) Now, it seems, they are taking it upon themselves to “fix” the Redskins offensiveness.

Recently, the term Karen has been growing in usage, and it refers to a person who thinks they’re being considerate but are “demanding [their] own way at the expense of others.” This is exactly what Nike is doing.

The only people who can legitimately be offended by the Redskins’ name are Native Americans. If they demand to retire the team name, then the NFL should take those demands seriously. Even Nike could take them seriously, but hiding merchandise and refusing to sell it for a single team in order to exact capitulation is not the right approach. Nike is hurting itself and the fans and the team, all in an effort to demonstrate their cultural awareness and that they believe the Redskins name is offensive to others (who heretofore have not been the prominent actors in this situation).

If Nike actually cared about the effects on Native Americans, they should first provide evidence that this matters, in a significant way, to Native Americans, and isn’t just a cause celebre for its white activists. Secondly, if Nike felt really strongly, they could discontinue all business with the NFL, but that would be a big loss, bigger than they’re willing to lose for this cause. More reasonably, Nike should commit to donating all profits from Redskin merchandise to Native American groups or hire more Native Americans. These actions would represent a win-win for all involved and avoid the brinksmanship culture that the warriors on both sides seem to want.

If Nike insists on an arms race, the NFL, though, should respond in kind. This is the NFL’s decision, not Nike’s. The NFL should not give in to pressure from Nike as they do not represent the potential victims. Corporations and states are both expanding the business of boycotting against entities they disagree with. Both corporations and state governments have stopped doing business with states that pass laws that they disagree with even though a majority of the people in those states are in agreement with the laws. Letting these companies and states bully everyone else around is anti-democratic.

The NFL should raise the stakes by telling Nike that if they don’t sell apparel for one team, they can’t sell it for any other team. They should, in private, suggest Nike take the more constructive actions listed above. If Nike insists, then the NFL should exclude Nike from consideration of being a partner in the future.

NFL fans should also step into the fray by boycotting Nike. If Nike wants to show how much it cares about this issue by foregoing some profits, then NFL fans should oblige them. For twenty years, activists have been making demands and bullying society to get their own way. Even though these activists make up a tiny slice of the population, they claim they speak for an oppressed majority, and the actual majority are sympathetic and don’t want to offend anyone, so they relent. But the activists are never satiated, they just move on to the next cause and claim new victims and decry anyone who disagrees.

It is time for the sensible majority to stop standing astride and muttering, “OK, you feel more strongly than I do.” And instead stand between them and their objective and yell “Stop! We will no longer listen to culture warriors claiming to represent actual victims.” The activist bullying process has repeated itself enough times to understand that it will only end when they have remade society to fit their naïve notion of perfect harmony where no one offends anyone else because the only way that society exists is with Big Brother monitoring every action we take.

Google's Glaring Hypocrisy on Section 230

A debate has been active in Washington for months over Section 230 of the Communications Decency Act, passed in 1996. In essence, Section 230 protects internet companies who host comments or any user-created content from being held liable for what the users post. In the past six months, some Republicans, annoyed with the perceived political bias from media companies such as Twitter and Google, most notably, have been threatening to rescind that immunity claiming that the companies treating conservatives differently makes them ineligible for the protection.

While there is evidence that the media companies are biased against conservatives (considering the proportion of conservative content that is removed), arguing that their 230 protections should be removed is a stretch.

While Google argues that they should be protected from private lawsuits based on comments, however, it seems they believe that de-platforming other sites for user-generated comments is right and proper.

NBC News reported The Federalist to Google (side note: several stories and tweets (1, 2, 3) provide the quote "Google blocked The Federalist from its advertising platform after the NBC News Verification Unit brought the project to its attention" but that does not appear in the story...anymore.) based on some media "watchdog" group, and then reported that Google was demonetizing The Federalist. Google then clarified that it was just warning The Federalist about some comments (that have not been listed) and it had three days until "a ban goes into effect."

So, in a nutshell, Google is threatening to punish The Federalist for comments left on one of its stories, at the same time it is telling the government that it shouldn't be held responsible for comments left on their many sites.

Many tech journalists are arguing that it's not inconsistent at all, that Google is not the government and Google has a right to do this. This is missing the point of the inconsistency. Of course Google is not the government, and Google has this right. The point is that Google wants a power (punishing other companies for comments on their site) that they don't want used against them. Other claims are that Google wants protection from the government, not private parties. Private parties are free to do as they choose. But that's not correct either. Section 230 also protects Google from lawsuits from other private parties based on the comments.

Granted, they're not the exact same situations. No one is claiming that they are. If you look at the specifics and details then you can argue that these aren't the same situation. However, if you look more broadly at the underlying action "punishing other platforms for comments", then there is definitely an inconsistency. Everyone should acknowledge that there is some inconsistency here, even if there are countervailing details that reconcile them.

Doom and Gloom Media Wrong Again

When the April jobs report came out, most of the media were talking about however bad it was, the reality was even worse.

LA Times - May 8 "The Unemployment rate may be even worse than it looks"
Associated Press, May 8 - "[The Jobs Report is] Even Worse than it looks. Really."
Vox.com, May 8 - "20.5 million job losses recorded - and the real situation is even worse"
Politico.com, May 11 - "The jobs situation is worse than it looks"
Bloomberg Opinion, May 8 - "This Ugly Jobs Report is Just the Beginning"

CNBC - May 21 "May Unemployment looks worse than expected"

The print media were more balanced, but the internet and televised media all took the glass-half-empty view. Because 18.1 million people, 78%, expected their layoffs would be temporary, there was the possibility of better results in May, if things began to re-open. All of these media outlets, however, chose to expect worse.

What interests me most in this episode, is that again the media were all taking an unprecedented situation and were unable to envision what would eventually transpire. How is it that the media predictions can all be so certain of events that never come to be?

Arguing with Strawmen; Avoiding the Issues

On the evening of May 27th and the following morning, TheHill.com featured prominently, this opinion piece by Marik Von Rennenkampff. While you disclaim that his views do not represent your own, by publishing it and featuring it you are promulgating an opinion untethered to good journalism or productive opinions. Mr. Von Rennenkampff’s piece is a one-sided, distorted interpretation of the facts of the Flynn case that is more propaganda than informed opinion and is more suited for a website like Slate.com than what I would expect from The Hill.

While I tend to lean more on the side of those who believe that the FBI and the highest levels of government over-stepped the boundaries of civil justice, I also recognize that this story is extremely complicated and nuanced, and I don’t begrudge those who believe the opposite. In many circumstances, the facts can be read in different ways and both sides have good arguments.

Mr. Von Rennenkampff’s arguments, however, ignore all of that. He takes the strongest arguments from the prosecution’s side puts them up against the weakest (and even non-existent) arguments from defense’s side all while twisting and pulling the facts of the case to suit his opinion.

For example, he twice points to the DOJ’s finding no evidence of political bias after an “exhaustive review.” By saying it was the DOJ finding no evidence and not mentioning it was a review by an independent watchdog within the DOJ he falsely gives the impression that even a politically-motivated organization found no evidence of bias. Additionally, he omits the fact that the DOJ explicitly did not try to determine whether there was political motivation. Their conclusion was basically that “the reasons given to us, pass a minimum threshold to support their decision to investigate.” This is similar to believing that even though a robber broke into your house and stole your jewelry, he said he was actually just looking for flour to make cookies.

If this was the only example of this abandonment of objectivity and sticking close to the facts instead of straying deep into partisan interpretation, it wouldn’t be worth discussing. He claims the Trump-Russia investigation was not based on “bogus information”, omitting any mention of the Steele Dossier and how the actual basis of the investigation – Papadapoulos’s claim to the Australian was fed to him from an untrackable source and the content of the discussion was not true.

He claims that Obama/FBI did not spy on Trump even though the FBI clearly listened in to Flynn’s phone calls, illegally surveilled Carter Page in an effort to investigate Russian collusion even if Carter Page wasn’t an official part of the campaign and completely omits the existence of the confidential informants. Given the facts, a normal person, not trying to spin the facts to suit his biases would not completely dismiss the allegation of spying.

He also tries to knock down a straw man that the FBI Investigation into Flynn was bogus. Only the most extreme are claiming that the investigation was totally bogus. The claims in support of Flynn are that the investigation was properly predicated but politically motivated (jury’s still out), that the FBI had investigated and found nothing for months and then pushed him in a corner where he lied and threw the book at him, and that the FBI bended or broke its own rules to prosecute him. The latter three charges are harder to tackle so Mr. Von Rennenkampff ignores them. He also assigns nefarious motives to an incoming administration official working in an official capacity (albeit before he officially should) to prevent the outgoing administration from blowing up an international relationship.

It is not my intent to condemn opinions that I disagree with, but only to point out unrestrained opinions that do more to activate their own side than to inform. Opinions such as these do nothing to persuade the other side but only strengthen the resolve of the most partisan. The Hill should be more deliberate in choosing what it publishes to inform and challenge instead of instigate.

Compare and Contrast: Flynn Edition

On Friday, the transcripts of Flynn's discussion with Kislyak at the center of the entire Flynn story were declassified. This is the conversation that Flynn was accused of and admitted to lying about the contents and was not provided to Flynn's defense team despite numerous requests.

The New York Times says it proves Flynn "discussed sanctions at length" during conversation. Conversely, Margot Cleveland of The Federalist says the transcripts show the opposite.

I encourage everyone to read both, but start with Ms. Cleveland's take. Then, compare and decide which is the stronger case.

It is surprising to me that Cleveland's relies much more on facts and explanations than does the New York Times. The latter, for example, does not mention the difference between sanctions and expulsions. This question seems to be the crux of the discussion. Was Flynn talking about one but not the other, as Cleveland suggests, and are they actually distinct issues where the distinction matters. At least Cleveland points out this difference and makes the case; the Times story doesn't broach it at all.

Notice, too, how the New York Times, while claiming Flynn discussed sanctions, they never quote Flynn as ever saying sanctions, they just imply that Flynn's statements regarded the sanctions, not the expulsions (or both).

It is definitely possible that the Times authors believe them to be the same thing. It's also possible that Mueller's team believed them to be the same thing. But again, Cleveland makes a strong case that they are different, and her case is definitely strong enough that it should be a point of discussion and not omitted entirely.

"The First Casualty of Hyperpartisanship is Nuance"

Democrats and the media are over-reacting to Flynn case. There's a legitimate case they can make, but instead are jumping to the extreme argument of Barr being corrupt while completely ignoring the questionable facts about the investigation. When news media completely ignore salient facts that go against their narrative and instead double-down on a simplistic narrative like 'Barr only did what he did because he's corrupt and a loyal Trump soldier', readers should be on their guard.

The May 8, 2020 episode of Left, Right, and Center had an enlightening exchange that highlights that the pundits who are criticizing Flynn are avoiding conservatives' valid arguments.

The Flynn discussion is the first topic they discuss, but the most maddening and instructive dialogue starts at 3:25. Rich Lowry lays out point after point about why he accepts the DoJ's actions:

• There was no predicate for investigation.
• The Logan Act has never been prosecuted, the last attempt to prosecute was in the 1850s.
• It is a Constitutionally dubious law.
• Incoming National Security advisor talking to Russian ambassador does not show he might be Russian agent.
• The FBI interview was an ambush interview; Comey bragged about going around normal procedures. They deliberately kept Flynn off his guard.
• Flynn thought he was having conversation with a peer in government.
• FBI knows what was said in conversation
• There is a dispute over whether agents thought Flynn lied.
• FBI does nothing for 10 months. Then Mueller squeezes Flynn gets him to plead guilty.
• Flynn under financial pressure, possibly personal pressure.
• This is a travesty and the Justice Department deserves credit for undoing it.

The "Center" host, asks the guest if that's a fair characterization. The guest, Ken White, a former federal prosecutor says, "Not at all. None of that is true."

Ken White claims none of the details Lowry spoke are true. This is obviously incorrect. It is demonstrably false that everything Rich Lowry said is untrue. Logan Act has never resulted in a conviction. Last indictment was 1852.  "Comey bragged to MSNBC's Nicolle Wallace in 2018 that he flouted the usual protocols for interviewing a top White House official." FBI knows what was said in conversation." Andrew McCabe: "The two people who interviewed [Flynn] didn't think he was lying." Flynn's interrogation is January 24th, is fired on February 14th, and the next action against him is November 5th, so not 10 months but around 8. Does "Flynn pleads guilty" really need corroboration? Flynn under financial pressure, possibly personal pressure.

I've avoided the obvious opinions which can't be verified. But the fact that FBI was ready to close the case on Flynn before this phone call and interview speaks to whether there was a predicate. There's definitely support that the Logan Act is constitutionally dubious.

So, given all this, the strong corroboration that Lowry has for everything he says, why would the other guest, the former federal prosecutor, throw that all away and say "none of that is true." It is because something about thy Flynn case and Bill Barr and Trump turns a switch that obscures the facts that don't align with their dislike and prevents them from seeing nuance.

The debate continued, and White followed up his ludicrous statement about Lowry with the argument that the DoJ isn't being sincere, that if they were sincere, they would act to put an end to those "ambush tactics" the FBI used. "I would be thrilled if those values were reflected in the future in the way investigations are conducted. This doesn't reflect policy, it reflects politics."


The Left's official representative, Christine Emba, adds, "He had a constitutional right to remain silent. He didn't. He talked, and he lied. That lie came to light." But this argument is inapt. The FBI didn't read him his rights before hand, they, actually suggested he not have a lawyer. For a normal American, if the police or the FBI comes knocking on your door, your going to be on your guard and be very careful with what you say. If you're the incoming National Security Advisor, these are your coworkers, and you have an expectation that they're going to be helping you not interrogating you. I would like to live in Christine Emba's vision of the world. Where the FBI tries to talk to other government officials, at the White House, in Congress, and no one will talk to them because if they misspeak at anytime, the FBI can send them to prison. I suppose Christine Emba is doing the Left proud and pushing us towards a police state.

But then White reveals his actual position. He agrees with Lowry that Flynn shouldn't have been prosecuted! "I'm not fervent about prosecuting him. I think it's a bogus prosecution. I think this type of 1001 is a bogus prosecution." Of course, this wasn't his thesis. He started by talking about how the DoJ was in the wrong. How does he reconcile those positions? "I think that the hypocritical bogus justifications being given are transparent and a corruption of the justice department. We both know that these arguments are not going to be brought to bear again for anyone's benefit. They're only being brought to bear for Flynn."

This is an absolutely legitimate position to hold, and in fact, he made me question the DoJ's motivations for its actions. But this wasn't where he started. He started by implying he disagreed with Barr, but in reality he agrees with the action they took but is unhappy that they only selectively applied that standard to a Trump supporter.

Alan Dershowitz said "The first casualty of hyperpartisanship is nuance." This is unfortunately true and hyperpartisanship is winning.