What a Properly Scoped FISA Abuse Inspector General Report Would Look Like

In this piece on the Jim Comey IG Report, I showed that Michael Horowitz’s department received evidence of two violations of DOJ rules. His office first received seven memos that documented that DOJ’s protocols to ensure the integrity of investigations had collapsed under Donald Trump’s efforts to influence investigations. And then, at some later time, his office learned that Comey had (improperly, according to the report) retained those memos even after being fired and that FBI had classified six words in the memos he retained retroactively.

Horowitz’s office has completed an investigation into an act that otherwise might be punished by termination that already happened. But there is zero evidence that Horowitz has conducted an investigation into the subject of the whistleblower complaint, the breakdown of DOJ’s protections against corruption.

In April 2018, Horowitz released a report (which had been hastily completed in February) detailing that Andrew McCabe had been behind a reactive media release during the 2016 election. But his office has not yet released its conclusions regarding the rampant leaks that McCabe was responding to. In other words, Horowitz seems to have once again released a report on a problem that — however urgent or not — has already been remedied, but not released a report on ongoing harm.

Horowitz is reportedly preparing to release a report on what the frothy right calls “FISA abuse.” but given the content of a Lindsey Graham letter calling for declassification of its underlying materials, it’s seems likely that that report, too, is scoped narrowly, focusing just on Carter Page (and any other Trump officials targeted under FISA). There’s no request for backup materials on the other investigation predicated off of hostile opposition research, the investigation into the Clinton Foundation.

I have long said that if Republicans think the FISA order into Carter Page was abusive, then they’re being remiss in their oversight of FISA generally, because whatever abuse happened with Page happens, in far more egregious fashion, on the FISA applications of other people targeted and prosecuted with them.

If Michael Horowitz is concerned that the information from paid informants is not properly vetted before being used as the basis for a FISA application, they would be better to focus on any number of terrorism defendants. Adel Daoud appears to have been targeted under FISA based off a referral — probably, like Christopher Steele, a paid consultant — claiming he said something in a forum that the government later stopped claiming; Daoud remains in prison right now after having been set up in an FBI sting.

If Michael Horowitz is concerned that the FBI is misusing press reports in FISA applications, they would be better to focus on the case against Keith Gartenlaub. The FBI based its FISA applications partly off a Wired article that was totally unrelated to anything Gartenlaub was involved with. Gartenlaub will forever be branded as a sex criminal because, after finding no evidence that he was a spy, the government found 10 year old child porn they had no evidence he had ever accessed.

If Michael Horowitz is concerned that information underlying a FISA application included errors — such as that there are no Russian consulates in Miami — he should probably review how Xiaoxing Xi got targeted under FISA because the FBI didn’t understand what normal scholarship about semiconductors involves. While DOJ dropped its prosecution of Xi once it became clear how badly they had screwed up, he was charged and arrested.

And if Michael Horowitz is concerned about FISA abuse, then he should examine why zero defendants have ever gotten able to review their applications, even though that was the intent of Congress. Both Daoud and Gartenlaub should have been able to review their files, but both were denied at the appellate level.

The point being, the eventual report on “FISA abuse” will not be about FISA abuse. It will, once again, be about the President’s grievances. It will, at least according to public reporting, not treat far more significant problems, including cases where the injury against the targets was far greater than it was for Carter Page.

I don’t believe Michael Horowitz believes he is serving as an instrument of the President’s grievances. But by scoping his work to include only the evidence that stems from the President’s grievances and leaving out matters that involve ongoing harm, that’s what he is doing.

Note: I have or had a legal relationship with attorneys involved in these cases, though not when writing the underlying posts.

20 replies
  1. orionATL says:

    the rhetorical style in the latter part of this post is quite strong and implicitly condemnatory – “if Michael Horowitz…”. I find it appealing.

    with regard to “I don’t believe Michael Horowitz believes he is serving as an instrument of the President’s grievances. But by scoping his work to include only the evidence that stems from the President’s grievances and leaving out matters that involve ongoing harm, that’s what he is doing.”,

    I happen to believe inspector general horowitz is protecting the department of Justice and his own position as IG from the depredations of the Trump presidency. I am not sure he has any choice at the moment.

    in this view horowitz faces difficult, unflattering political choices the president’s erratic, punitive style of governing has forced on him, as it has on others of our leaders including speaker pelosi in the house, Schumer in the Senate, and several former gov’t officials now fired or resigned faced, e.g., Walter staub the former head of the government ethics board, and former national security advisor h.r. mcmaster. unappealing things happen in trump’s cauldron of conflict. being pure, resigning, then keeping quiet is one solution, but it does not solve problems.

    • Peterr says:

      I’m not sure what you describe fits under “protecting the Department of Justice,” unless by that you mean he has given up justice in an effort to save a department.

      Likewise, I am confident that he has agency here, and is not without choices. He has more independent ability to act than anyone else at DOJ, and should he cross someone (AG or folks at the WH), the stink that would be raised by attacking or removing an IG would be enormous – far worse than forcing out Walter Staub or HR McMaster. An IG is supposed to be independent, and if Horowitz chooses not to act in that manner, that’s on him.

      In all the cases Marcy cites above, Horowitz could have acted, but instead he ducked. That may have kept him in office, but that hardly solved any problems.

        • Americana says:

          We’ve got even more “real issues coming down the pike.” Thanks to Jay Sekulow and the American Center for Law and Justice who’ve filed a FOIA case against the FBI over claims that the FBI under Comey planted spies in the Trump administration and Devin Nunes who’s filed a racketeering lawsuit against Fusion GPS, we’re going to find our legal perspectives shaken to their core.

          Please dig deep into this ACLJ website because like everything else w/the Trump propaganda, they’ve got petitions on the site and a litany of endless garbage that bears keeping an eye on for purposes of heading it off.


          The American Center for Law and Justice just happens to have Jay Sekulow on its masthead:


          • bmaz says:

            “Dig deep” into this bullshit only if you have too much time on your hands and cannot find a better outlet for it. And if you are a complete masochist.

            It is absolute worthless garbage Americana has linked.

            • Americana says:

              Why the heck do you think I provided the link, bmaz? Of course, it’s a barrage of garbage. It’s also garbage that we’re going to have to counter one way or another in one venue or another for the foreseeable future. It’s best to at least gain a superficial understanding of the grounds on which folks like Sekulow are intending to attack. It’s also wise to know which of these individuals surrounding Trump are involved w/organizations like the ACLJ and what propaganda they pump out.

              Is it depressing to read that site? The array of stories is grotesque but if one is canvassing for the 2020 election, you’ve got to have a grasp of what Republicans are reading.

              You think providing links only to sites whose content you universally approve of 100% serves the purpose of readying people to counter the material pumped out by the American Center for Law & Justice and Jay Sekulow?

              • bmaz says:

                Um, we have known who and what Sekulow is and was for a very long time, and long before the Trump era. You are new here, we are not.

      • orionATL says:

        peterr –

        what I mean is simply that the ig can give this president what he thinks prez wants without being as partisan as a trump ig would be if Trump replaced Horowitz out of pique. he may be playing the same game as dag rod rosenstein played – survive and protect.

        yes indeed. the ig does have agency. he could do what ew suggests vis-a-vis fisa. and under at least some presidents his report would be received with equanimity and the nation would be better off. but not under Trump. under Trump it is reasonable to speculate that not providing fuel for Trump trash talk would get it fired and open the door to a truly destructive ig.

        do I know this for a fact? no. I’m just watching and guessing. my view of bureaucrats who operate under Trump is that their environment is not much different from that of officials in Syrian or iraqui cities captured by isis. only less bloody deadly.

        should Horowitz say “fck it all” and do a go for broke investigation? maybe so. i think the question is always one of casualty estimates a leader should make?

      • Marinela says:

        Goes back to my obsession about “Trump enablers”.
        The system is breaking down, if the people that don’t intend to act as Trump enablers are unable (for unknown reasons) to stop this power consolidation.
        Who can fire the IG?

        • orionATL says:

          from what I read, the president can fire an inspector general, but then ig has thirty days to finish up business (unless a contrary doj office of legal counsel opinion is invoked).

          the attorney general oversees an ig investigation and can influence that investigation by controlling certain ig investigative paths.

          is this accurate? don’t know for sure, but it shows up in discussions of Trump and ig Horowitz.

  2. Dr. Joseph Prince says:

    That proposed kind of a memo is highly suggestive of an intent to remove evidence of criminal acts.
    I spent seven yrs as Chief Science Investgator for ILL. Atty.Gen.and we successfully prosecuted 80% of our lawsuits. I was also an Intel analyst at CIA so I speak with some level of expertise.
    Thus my paranoia says, LOOK OUT FOR HOROWITZ, HE MAY NOT BE KOSHER!!!

    • earlofhuntingdon says:

      Critical questioning of facts and their implications would seem consistent with your asserted background. But shouting in all caps vaguely anti-semitic warnings is not helpful, doc.

      • Vicks says:

        My vote is that “kosher” in this context is not a slur.
        The word literally means “clean” or “pure” and is commonly used buy both jews and non jews without anyone taking offense.
        Calling out potential anti-semitism when a non-jew uses it to describe a Jew seems like it’s creating an unnecessary double standard.
        To me

        • earlofhuntingdon says:

          In another context, perhaps your argument would be the better one. But a slight change makes my point:

          “Look out for O’CONNOR, he may not be KOSHER!!!”

          It hasn’t quite the same ring. The subtle-yet-obvious messaging is illustrated in films like, Chariots of Fire, in lines like this, referring to the protagonist’s father:

          HAROLD ABRAHAMS: He’s as foreign as a frankfurter.
          AUBREY MONTAGUE: And a kosher one at that.

  3. Peterr says:

    After reading this, one has to ask: Just as Jeff Sessions had BDTS keeping him in line as AG, who is the Reporter-back-to-the-White-House in Horowitz’s office? Seems to me that Horowitz might be doing a lot of writing while looking over his shoulder at someone.

  4. earlofhuntingdon says:

    Teenagers the world over will be ecstatic to learn that the president of the United States agrees with them: tweeting and watching television IS work, which is why Trump thinks he’s “on the clock 24-7.”

    – Frmr Trump Org. exec. Barbara Res. https://twitter.com/kylegriffin1/

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