How the FBI and DOJ Lied to the FISC Court

Bear in mind, when the FBI and DOJ presented the Steele Dossier to the court as their pretext to open surveillance, they would have almost certainly identified him as a "source" who has "previously proven reliable" (the quotes are just-for-example verbiage, not actual quotes) and cited, for example, his work in the FIFA investigation as well as his service in MI6.

In short, they would have presented his inherent reliability as a reason to believe the otherwise completely unsubstantiated claims his "dossier" offered. His dossier offered no proof -- the only "proof" of the dossier's claims would Steele's reliability, honesty, and lack of bias or material interest in this case.

But, according to The Memo, the FBI and DOJ had reason to know that Steele wasn't all that reliable -- and they concealed each of these points from the court:

1. They withheld from the court that Steele was working for Trump's rival for the presidency, Hillary Clinton, and the DNC, which Hillary Clinton had contractually taken over by this point. They only said in their application that Steele was working for a "U.S. person."

The fact that Steele had been commissioned by Trump's political opponent would have greatly diminished his perceived reliability -- he had a material interest in this dossier "succeeding." He had been paid $160,000 to produce it. (And note, Glenn Simpson refused to say if he was ever paid to get an investigation started.)

As this information would have reduced Steele's reliability in the court's eyes, the FBI/DOJ concealed that from the court. They lied. They represented Steele as reliable, but then hid competing evidence of his unreliability.

This sort of hearing is ex parte. Only one side gets to present evidence to a judge. No representative of Trump or Carter Page was in the room. It seems to me that the government, when seeking a warrant in an ex parte hearing, should present contrary evidence so that the judge can make an informed decision. There's no opposing party in the room to offer that contrary evidence, and no one except the government itself to look out for the civil rights of the people it's seeking surveillance orders on.

The government does not seem to have offered the court such information, and seems to have concealed information they knew would be relevant to the judge's understanding of the situation and his decision on granting the warrant.

To the detriment of a citizen's civil rights, note.

2. No less an authority than Bruce Ohr communicated to his superiors that Steele was personally extremely biased in this matter. Not just paid to be biased; but personally, emotionally biased himself.

Ohr reported that Steel personally "was desperate that Donald Trump not get elected and was passionate about him not being president."

Steele's reliability depends largely on his judgment, his dispassion. Steele didn't have any information of his own -- he got his information long-distance from Russian operatives and government officials whom he might have paid. Steele has always been touted as an "MI6 agent" to prove that he is expert in separating bullshit from real intelligence -- and yet, he put transparent nonsense like the Pee-Pee Party bullshit into his dossier.

Given that he was "desperate" and "passionate" to keep Trump out of the White House, one begins to understand his failure to discriminate between plausible claims and implausible ones.

This information would have helped the court determine if it agreed with the FBI and DOJ that Steele was reliable and a good judge of unverified gossip and rumor -- so the FBI and DOJ again concealed this highly-pertinent information from the court.

3. The FBI and DOJ had, of course, a huge reason to suspect Steele wasn't as reliable as they were representing to the court-- namely, that they stopped working with him for violating their ethical rules of confidentiality in peddling these claims to media organizations. I would say that Steele betrayed himself here, proving that he was still working for FusionGPS as a political operative trying to plant dirt against a target he was paid to undermine, and not an informant or researcher working for the FBI.

The FBI and DOJ concealed the fact that they had terminated their relationship with Steele from the court.

4. On that, the initial FISA application claimed that Steele's claims were corroborated by independent reporting by Michael Isikoff -- the idea being, this isn't just Steele who's reporting this, it's also the completely independent reporter Michael Isikoff.

But Michael Isikoff wasn't an independent source at all -- he was fed these claims by Steele himself.

So there was no second source for Steele's claims -- you had Steele making these claims, and then Steele's stenographer repeating Steele's claims under a byline of "Totally Not Christopher Steele."

However, the FBI/DOJ "assessed" that Isikoff's reporting was independent and represented it that way to the court.

Now, it we can't say they lied on that point -- they might just have been wrong. Incompetent, as usual. Steele lied to them about, or at least concealed, his blabbing to reporters.

Or so we're told, anyway.

However, after the DOJ/FBI ended its association with Steele for spreading his claims to various media organizations, in violation of FBI/DOJ confidentiality agreements, it surely must have at least occurred to them that perhaps Steele had also previously spread his tales of Urinary Olympics to Michael Isikoff.

However, if such thoughts occurred to them, they quickly put them out of mind. Despite now having reason to suspect that they had, whether wittingly or unwittingly, misrepresented to the court that Isikoff's article constituted independent corroboration, they seem to have taken no efforts to repair that misrepresentation and inform the court that their initial representation may have been completely false.

It's not a lie to tell the court something untrue if you don't know it's untrue -- but it is a fraud on the court to conceal from the court the fact that you now believe you previously told them an untruth.

Perhaps they were not lying, but merely incompetent, when they first told the court that Michael Isikoff's article stood as independent confirmation of Christopher Steele's claims of Ureter Races.

Did they ask Steele about this? Did they ask Isikoff?

Or did they not ask, because they did not want to know the answer?

Lawyers will sometimes keep themselves deliberately ignorant of facts which they would have to disclose to the court if they knew them. This is why defense lawyers often tell their clients, "Don't tell me if you're guilty or not."

But they do not seem to have bothered to investigated this possibility and, in any event, did not alert the court to their previous misrepresentation.

When they decided to hide their previous, possibly inadvertent, misrepresentation from the court, and continue maintaining it to be true, that's when something that may have begun as a mere (incompetent, stupid, willful) mistake turned into a deliberate lie.

Has it undermined national security to know those charged with protecting our national security are lying in court filings in order to fraudulently obtain surveillance warrants against American citizens?

Anyone who says "yes" to that would seem to have a, let us say, Putinesque understanding of what national security is.

By the way, if you want to see the MSNBC rebuttal to these claims, see AllahPundit's twitter timeline. He's retweeting MSNBC/NBC with furious vigor.

Corrected: I said Steele was taking money from the FBI -- I don't actually know that. The FBI has refused to answer that question for a year.

I've omitted that claim.

Correction Two: I also said the DOJ/FBI "fired" Steele, but I think I should probably say something vaguer like "ended their work with him." I don't know if he was ever officially "hired," and therefore I don't know that he could be "fired."

Clarification: The language The Memo used for what I wrongly called Steele's being "fired" is that Steele was "terminated as a source."

Eeenteresting: A tweet from Sean M. Davis, brought to my attention by someone who calls himself "Commenter:"

@seanmdav

Wow. Unmentioned here is that a former Isikoff researcher at NBC, Taylor Sears, worked for Fusion GPS at the time all of this was going down.

I'll say one thing for FusionGPS -- when you pay them to put a political hit on someone, they really go to the mattresses to put that political hit on the target.

posted by Ace at 01:53 PM

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