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.

"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.

The New York Times's House of Cards

What has happened to journalism? Am I overly idealistic? Has it always been this bad, and I just didn't realize it. Have most Americans already accepted the truth of journalism?

Imagine this hypothetical: Corrupt law enforcement agents break the law to punish people of the opposition party. They fail in their endeavor, the cases are dropped, and the targets are exonerated. Then the media pronounces that the government who freed them is corrupt and ignores the problematic process.

This situation does not occur with an independent and legitimate press. This is sensationalist, activist press, the kind you'd expect in dystopian fiction or countries where a dictatorship controls the media.

This was a hypothetical case, but it could be true, and many Americans believe that the FBI agents behind the Flynn case and the Carter Page FISA warrant let their politics override their faith to justice. Maybe those Americans are wrong; maybe the FBI agents were acting in good faith. The facts are, however, that they bent and broke many laws to get what they wanted. With the FISA application and then with the Flynn case.

There are three possibilities:
1. The FBI agents involved were extremely biased and believed punishing their enemies was more important than rule of law, and Bill Barr righted those wrongs.
2. The FBI agents involved were slightly biased and bent the rules a bit too far in pursuit of legitimate investigations, and Bill Barr undid the damage.
3. The FBI agents involved were completely professional, did everything by the book, got a bad guy, and Bill Barr let him off because he's Trump's lackey.

Do we have enough information to know for sure which is true? Does any journalist?

A responsible journalist has an obligation to report these facts. A responsible journalist should recognize that this is a complicated situation and doesn't have an easy answer. An irresponsible journalist jumps to possibility 1 or possibility 3 and tosses around over-generalizations like "Barr is corrupt and he doesn't that you know it." or "The attorney general is turning the Justice Department into a political weapon for the president."

The second quote is written by the editorial board of The New York Times, and is deeply, deeply irresponsible. They are taking a complicated situation, one that's clearly in the gray where there's not enough information to make a real determination as to everyone's motives and deeds, and deciding that William Barr, the attorney general is corrupt. The left's opinion writers are expert at taking many stories, over-interpreting them, and then putting them together to create the illusion of a strong case. This opinion piece is a terrific example.

The thesis is that Bill Barr is a political actor and has politicized the Justice Department. They start with a piece of a statement Barr made in response to a question, that without the full Barr statement makes him sound like he's be happy as long as he wins. Then they talk about Watergate and the reforms that followed it. "To Mr. Barr, these reforms were obstacles to a vision of a virtually unbound executive." This is followed by a statement Barr made about the power of the executive. Instead of arguing against that statement, they simply compare him to England's King George III. Barr said "the president 'alone is the Executive branch', in whom 'the Constitution vests all Federal law enforcement power, and hence prosecutorial discretion." Is that wrong? Isn't this a question for constitutional scholars to debate? Maybe it is wrong. Is it clearly wrong? If Obama's attorney general had said it, would The New York Times proclaim it as indisputable?

Whether it's right or wrong, it's a reasonable interpretation, and Bill Barr is not the only person who thinks so. Many, many legal scholars, who believe in civil rights and want an independent justice system, believe this is true. But, The New York Times throws it in, interprets it as "Bill Barr believes the president is king" and then moves to its next point.

"Bill Barr's America...is a banana republic where all are subject to the whims of a dictatorial president and his henchmen." These are the words of Donald Ayer, that the Times goes on to agree with. This is such an egregious exaggeration of the facts, it has no place in The New York Times. The United States is not a "banana republic" and the actions of Bill Barr do not come close to being "whims of a dictatorial president and his henchmen." Donald Ayer was likely playing up his opinion to get press coverage and headlines. This is not a statement that was meant to accurately portray the state of the country. It is another irresponsible statement that sensationalizes instead of informs.

Next, the Times says Barr "misrepresented the contents" of the Mueller report. A "federal judge called Mr. Barr's characterization of the report 'distorted' and 'misleading.' Both of those come complete with links to back up their take. If you follow the "misrepresented the contents" link, and you read the whole story, you find that what they mean by "misrepresented the contents" was "didn't include all of the context with your accurate summary." There is no argument that Barr said anything untrue or misleading. The complaint is that Barr's summary didn't include context. How ironic that The New York Times calls it "misleading" when the full context is excluded. By that standard what should we call this editorial that doesn't mention a single one of the rationales given by the Justice Department in dropping the Flynn case?

The link to the second quote does more of the same. Claiming Barr misled the public by omitting context. The judge found it "misleading" that while Barr's statements were true, they were too narrow and left out many findings that would've cast doubt. Again, if this is a definition of "misleading" then The New York Times, The Washington Post, NPR and every news outlet is misleading. It is not that they leave out any context, because providing all context would be impossible. They leave out necessary context. For Flynn, they leave out the fact that the edits went on longer and involved more people than was standard; for Ukraine, they always called Jonathan Turley, the "Republican scholar" because Republicans called him, but they always omitted the fact that he was a long-standing Democrat who disagreed with them; when they discuss Trump's Charlottesville comments, they ignore that he explicitly condemned neo-Nazis and White Nationalists'. Name the story, Kavanaugh, Ukraine, FISA warrant, Russia, and the media are always telling you one side and leaving out inconvenient facts for their narrative.

The next paragraph is a litany of decisions that Barr made and liberals disagree with. Each decision Barr made was a reasonable decision. Maybe the decisions were wrong, but enough fair-minded people agree with them, that it's unfair to paint them as evidence that he's corrupt. He believes that the Russia investigation was improperly started. Is that evidence of corruption? Is the attorney general disagreeing with an inspector general so nefarious? How hard would it be to find previous attorney generals disagreeing with inspectors general? Obama and Democratic representatives disagree with court decisions, does that make them corrupt, too?

He called the investigation "spying." In other words, he said that confidential informants who were reporting the actions of Trump affiliates spies to law enforcement and intelligence agencies "spying."

He reduced the DoJ's recommended sentence for Roger Stone. Every knowledgeable person who looked at that case thought the recommendation was too high. Even so, the recommendation was merely a recommendation, it was the judge's ultimate decision. And the recommendation, even amended, included several years of jail time. By any metric you consider this, it was not a perversion of power, and yet, The New York Times is heaping onto a pile of other flimsy arguments hoping the volume of criticisms amounts to a real case.

It doesn't, and it shouldn't. The New York Times is using their history and the reputation they've earned to peddle a house of cards. Each thin and flimsy, but arranged in such a way that projects an illusion of a substantial argument. It is not; and every American needs to realize that these opinions collapse with the gentlest of breaths.

Questions the Media should have asked about Buzzfeed Bombshell

For those who don't read or watch the news continuously, there was a 24-hour explosion in the Impeach Trump saga, that started with a bang on Thursday and ended with a whimper on Friday.

It began when BuzzFeed, the vaunted news source that brought us the as yet unverified Trump dossier, published a story, from anonymous sources no less, that Trump directed his lawyer to lie to Congress.

It ended when the Office of the Special Counsel disputed, in general terms, the thrust of the BuzzFeed story.

But this was not before it was reported by everyone CNN,

https://www.buzzfeednews.com/article/jasonleopold/trump-russia-cohen-moscow-tower-mueller-investigation

The core of the story can be summarized by three paragraphs:

"Now the two sources have told BuzzFeed News that Cohen also told the special counsel that after the election, the president personally instructed him to lie — by claiming that negotiations ended months earlier than they actually did — in order to obscure Trump’s involvement.

The special counsel’s office learned about Trump’s directive for Cohen to lie to Congress through interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents. Cohen then acknowledged those instructions during his interviews with that office."

On Friday evening, before Mueller's team shot back, I started to ask some questions that I realized that the media should have been asking. Namely, 1) What was the motivation for leaking this story and 2) Why BuzzFeed and not the NY Times.

On Question 1, suppose you are on Mueller's team investigating this. You believe that Trump directed Cohen to lie to Congress and you believe you have the proof to back it up. Since the investigation already has what it needs, and it's still going through the normal investigative process to be followed up by the prosecutorial process, what reason do you have to tell the media? It will be given to the media in due course, as soon as Mueller finishes his report.

The most likely reason I could think of was that the sources must NOT have believed it was going to see the light of day for whatever reason. Most likely because the evidence was too weak. (This turns out to be even more likely considering the Mueller dispute).

The second question I asked was why these sources would talk to BuzzFeed instead of the New York Times or Washington Post, for example. Why not go to a much more credible and established news outlet. This information was absolutely enormous and consequential. If I thought it was important enough to get into the news, I'd go straight to the top, why didn't these sources? Again, the likely answer is that they did not want the scrutiny from those sources or they knew it would be called into question and did not want to sully either of those companies.

I admit that maybe there are good reasons I didn't think of, but my point is that these are important questions that the media should have asked, but they did not. Probably because they prefer to breathlessly report bad news for Trump than to actually do their jobs.

Update: I heard a viable reason to leak the news. The timing of the presidential election and the investigation will make it difficult to complete impeachment proceedings before election day if they wait until the investigation is complete. Leaking gives Congress a reason to begin immediately. This was suggested in the 18 hours between the initial story and the Mueller rebuttal, and so is now moot. Even if true, this shows that the leakers were trying to short-circuit the investigative process and does not explain why Buzzfeed.