With the release of the new report on the opening of Crossfire Hurricane — what is commonly referred to as the “Russia probe” — Justice Department Inspector General Michael Horowitz completely demolished President Donald Trump’s persistent claim that he was the target of a “witch hunt.”
He was not, according to the report. Four associates of his campaign were individually targeted for investigations based on articulable facts that indicated they may have been tied to Russia’s efforts to interfere in the 2016 election. These investigations were adequately predicated, Horowitz determined, and no evidence indicated that the decisions to launch the investigations were driven by political bias and or motivations.
While Trump has claimed vindication based on the report, he’s dead wrong. It demolishes his grand conspiracy theory and victimhood narrative, as well as numerous additional theories that his defenders have cooked up to cast doubt on the validity of Crossfire Hurricane and Special Counsel Robert Mueller’s investigation.
But it’s not all good news for the FBI. Horowitz found many errors were committed as the bureau carried out the investigation. This is inevitable for any thorough review of a complicated human process. But the problems Horowitz discovered weren’t just minor slip-ups or oversights, or the understandable omissions amidst demanding work. Some of them implicate serious defects in the FBI and Justice Department’s procedures and demand real reform.
To reiterate: None of this supports Trump’s underlying conspiracy theory. Trump wasn’t targeted in a “coup” or for as a political hit job. The problems uncovered are problems of law enforcement that, under normal circumstances, Trump and his ilk demand undying reverence for. They only question law enforcement, like the FBI, when it targets them. In this case, however, that suspicion of their investigators points to genuine areas of concern.
One of the most significant areas of concern is Horowitz’s discoveries about the courts that oversee enforcement of the Foreign Intelligence Surveillance Act of 1978. Under strict circumstances, this act allows government surveillance of American citizens. In his report, Horowitz found that the FBI made serious errors in their use of the FISA process, and those errors implicate serious defects in the process itself.
But before discussing them, I’ll simply note that the FISA issue solely applies to Carter Page, who ended up being one of the least significant figures in the Mueller report. While Page’s ties to Russian intelligence officials in 2016 were genuinely concerning, and his behavior during the campaign toward Moscow raised legitimate suspicions, his role, as far as the evidence shows, never amounted to much in itself nor in the broader investigation. That’s one of the reasons that the Republicans’ obsession with the process regarding Page has been so bizarre on its face. When it comes to the legitimacy of Crossfire Hurricane, which is what Trump and his defenders care about, the Page and the FISA issue is neither here nor there. The three other key figures early in the probe — George Papadopoulos, Paul Manafort, and Michael Flynn — were not subject to FISA surveillance.
The process surrounding the Page FISA application, however, does raise concerns for anyone with general interest in civil liberties and government surveillance. Horowitz found there were “significant inaccuracies and omissions” from the FISA application. He didn’t weigh in on whether these flaws would have been enough to get the application rejected, but they show that the process was far from what should be expected.
For example, Horowitz found that in its application for surveillance of Page, the FBI cited contacts Page had with foreigners that he had on behalf of another government agency. The FBI knew that Page had worked with the government in this matter, but it did not include this fact in its application. This fact could have made the contacts appear less suspicious and weakened the case for the surveillance.
“The problem here is that exculpatory evidence was not even shared internally, and in [particular] to the senior agents and lawyer(s) at OI who would be the affiants and sign-offs on the order,” said Asha Rangappa, a former FBI agent.
Adam Serwer, a writer for The Atlantic, noted: “The upshot of this report is that there was no liberal FBI conspiracy (lol) to get Trump but that the FISA process has serious structural problems, which civil libertarians have been warning about for YEARS and which conservatives never cared about before.”
“The serious structural problem is that because the process is not adversarial in any way, the [FISA court] generally assert the reliability of info provided by the FBI, which allows errors or misrepresentations to become justification for surveillance (in this case, of Carter Page),” he continued. “Now if Republicans want to make the FISC process more adversarial to keep the government honest, sounds good! I look forward to them working with the ACLU on that.”
But it’s always been clear that the Republicans were raising complaints about FISA and Page not because they genuinely care about the underlying issue of civil liberties violations, but because they wanted to defend Trump. Trump even signed an extension of expansive government surveillance provisions of FISA in 2018, despite supposed concerns about civil liberties. We know most other Republicans weren’t actually serious about expanding civil liberties protections because they never took any concrete steps to the parts of FISA they supposedly objected to in this case.
The complaints about the Page process was always a thin defense of the president, and now the theory that it rested on — that there was an FBI conspiracy to get Trump — has been blown out of the water.
But as many are now acknowledging after reading the report, Page himself probably has good reason to feel angry and vindicated.
In response to the report, FBI Director Christopher Wray announced a series of actions he is taking to improve the bureau’s process. He wrote in a letter:
First, we are modifying our processes under the Foreign Intelligence Surveillance Act (FISA), both for initial applications and renewals, to enhance accuracy and completeness. The FBI relies on FISA every day in national security investigations to prevent terrorists and foreign intelligence services from harming the United States. We are making concrete changes to ensure that our FISA protocols, verifications, layers of review, record-keeping requirements, and audits are more stringent and less susceptible to mistake or inaccuracy. These new processes will also ensure that the FISA Court and the Department of Justice (DOJ) are apprised of all information in the FBI’s holdings relevant to a determination of probable cause.
But it’s unclear whether this will actually address the problems when what Serwer identified as the underlying problem — an insufficiently adversarial process — remains.
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