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A Thinking Person’s Guide to the Stefan Halper Conspiracy Theory

For some time, I’ve been agnostic about whether Chuck Ross’ series on Stefan Halper derived from his own discussions with George Papadopoulos, Carter Page, and Sam Clovis, or whether he relied on leaks from HPSCI.

Today, he gave one of the leading comments he often does, about Paul Ryan’s claimed concern about “FISA abuse.” (Ryan, remember, pushed through 702 reauthorization this year without reforming a single one of the abuses laid out in this report, but apparently Chuck’s gonna play along with the notion that Ryan gives a shit about FISA.)

That mirrors Ross’ own logically nonsensical focus on the dossier as a source for the Carter Page FISA order in conjunction with Halper. Which, especially since other journalists are making it clear the Halper focus is coming from Hill Republicans, suggests Ross was getting leaks from Republicans.

That’s even more true of this interview with Sam Clovis. In it, Clovis makes it very clear the meeting did not stick out in his memory.

It was an academic meeting. It was not anything other than him talking about the research that he had done on China.

[snip]

No indication or inclination that this was anything other than just wanting to offer up his help to the campaign if I needed it.

After describing how he hadn’t opened up attachments Halper sent later in the month, he said, “that is how little this registered with me.”

And yet, somehow, by March, someone had told Ross about this meeting.

Halper also requested and attended a one-on-one meeting with another senior campaign official, TheDCNF learned. That meeting was held a day or two before Halper reached out to Papadopoulos. Halper offered to help the campaign but did not bring up Papadopoulos, even though he would reach out to the campaign aide a day or two later.

Clovis seems to derive his memory of the meeting, in significant part, from the documentation he does (four emails setting the meeting up) and doesn’t (any notes) have about it.

There’s a record of the exchange of emails that we had, four emails to set the appointment.

[snip]

I had my notebook. Always take notes and always keep track of what’s going on. And there wasn’t anything — I didn’t have any notes on the meeting cause there must not have been anything substantive that took place.

That suggests someone knew to go back to look for communications involving Halper. Now, if HPSCI requested all the comms campaign aides had with investigative target Carter Page, then Clovis would have turned over these emails (which mentioned Page but probably discussed China, not Russia), and HPSCI staffers could have found the tie. If not, then someone got Toensing or Clovis to search for Halper emails themselves.

Clovis explains that he’s bothered, now, about the meeting because he thinks he was used as an excuse to reach out to George Papadopoulos.

He had met with Carter Page. He had used that to get the bona fides to get an appointment with me.

[snip]

Then I think he used my meeting as bona fides to get a meeting with George Papadopoulos.

Remember, one of the inane complaints in the Nunes memo is that the Carter Page FISA application mentioned Papadopoulos.

The Schiff memo explains that Papadopoulos got mentioned because, after Alexander Downer told the FBI that Papadopoulos had told him the Russians were going to release Hillary emails to help Trump, they opened a counterintelligence investigation into the Trump campaign.

In other words, the frothy right likely believes, like Clovis, that Halper was networking as a way to get to Papadopoulos, and that in some way ties to the FISA application against Page.

And he may well have done so! As TPM clarifies some confusion created by WaPo, both Page, Clovis, and Clovis lawyer Victoria Toensing agree that Halper mentioned Page when he reached out to Clovis.

Clovis’ lawyer, Victoria Toensing, previously said, according to the Washington Post that the informant had not mentioned his other Trump contacts when reaching out to Clovis. Clovis said he wasn’t sure “where she got that information,”since she had access to the emails setting up the September 2016 meeting.

Toensing, in an phone interview Tuesday with TPM, backed up Clovis’ account. She told TPM that the informant had said in an email to Clovis that Page had recommended that they meet. She also claimed that the informant had told Page when they met at the conference that he was a big fan of Clovis’. Page confirmed Toensing’s account in an email to TPM.

Halper met with Clovis on September 1 and then reached out to Papadopoulos the next day.

Though note: Page says Halper raised Clovis at the July conference where they met, a meeting that occurred before dossier reports started getting back to FBI (particularly to the people investigating the hack-and-leak) and before the Papadopoulos report. That either suggests the FBI already had concerns about Clovis by then, or Halper was more generally networking with Page along with checking out someone who had been a live counterintelligence concern in his own right since March and for years beforehand.

Here’s where things start to go off the rails for this whole conspiracy theory, though. Clovis (who, remember, testified to Mueller’s team in the days before Papadopoulos’ cooperation agreement was unsealed, and who therefore may have his own false statements to worry about) believes that the FBI had no business trying to ask Papadopoulos about his April knowledge of Russians dealing Clinton emails in a way that would not arouse Papadopoulos’ suspicion.

What unsettled me … is what he tried to do with George Papadopoulos and that was to establish an audit trail from the campaign or somebody associated with the campaign back to those Clinton emails, whether or not they existed we don’t know.

Clovis believes, as does the entire frothy right, that the FBI had no reason to check out leads from someone who predicted the Russians would leak dirt from Hillary to help Trump a month before it became publicly known.

What were they investigating? To be investigating, there has to be some indication of a crime. And there does not appear to have been any indication for a crime. And by the way the Fourth Amendment protects you in your place and your person from investigation without a clear indication of what, uh, probable cause.

Somehow, Clovis conveniently forgets that stealing emails is a crime. And the FBI had been investigating that crime since June 2016, a month before learning that Papadopoulos might have known about the stolen emails before the FBI itself did.

In other words, at the core of this entire conspiracy theory (on top of pretending that Carter Page wasn’t already a counterintelligence concern in March, as all the designated GOP stenographers do) is the GOP fantasy that the FBI had no business trying to chase down why Papadopoulos knew of the theft before the DNC itself did.

And they’re making an enormous case out of the fact that FBI used Halper — a lifelong Republican to whom Papadopoulos could and did lie to without legal jeopardy — to interview someone Clovis claims was “ancillary” to the campaign at the time.

It’s also clear to me that they misread George’s relationship with the campaign entirely, so, because he was not, he was ancillary at best at that point.

So that appears to be where this is heading: an attempt to criminalize a Republican networking with a goal of learning whether George Papadopoulos, and through him, Sam Clovis and the rest of the campaign, committed what Papadopoulos himself has said (though this is legally incorrect) might amount to treason.

Ultimately, it comes down to this: the GOP doesn’t think Russian theft of Democratic emails was a crime and therefore doesn’t think FBI had reason to investigate Papadopoulos’ apparent foreknowledge of that crime.

Why Are Republicans Still Squealing about FISA Applications If HPSCI Report Cedes Carter Page Concerns?

Republicans in Congress continue to make fairly breath-taking demands on Rod Rosenstein and Christopher Wray in what seems to be an attempt to create a bogus claim of non-responsiveness that Trump can use to fire one or both of them.

First there was the demand that the House Intelligence Committee get all of FBI’s non-grand jury records on the Mueller investigation, a demand Paul Ryan backed. Then there was the push to publish the Nunes memo over DOJ’s objections. More recently, after Wray’s doubling the number of FBI staffers (to 54) in an attempt to meet a Bob Goodlatte document deadline for FISA, Hillary investigation, and McCabe firing materials proved insufficient, Jeff Sessions has put Chicago’s US Attorney, John Lausch, in charge of the response. As with Sessions’ selection of Utah US Attorney John Huber to review other GOP demands, Sessions seems to be giving himself and his deputies cover from fairly ridiculous GOP demands.

Nevertheless, such concessions have not entirely sheltered Trump’s main targets from the kinds of complaints that might expose Robert Mueller’s investigation below them. Mark Meadows, one of the lead attack dogs in this congressional obstruction effort, even suggested Congress might impeach Rosenstein for failing to meet a 2-week deadline on a Bob Goodlatte subpoena.

Through it all, the complaints that FBI used the Steele dossier as one piece of evidence in Carter Page’s FISA application, persist. This, in spite of the fact that Page had been under FISA surveillance years before, and in spite of the fact that all sides agree that the counterintelligence investigation into Trump’s aides started in response to the George Papadopoulos tip from Australia.

This, in spite of the passage from the Schiff memo (including one redacted sentence) that seems to assert that FBI considered Page an on-going counterintelligence concern.

DOJ cited multiple sources to support the case for surveillance Page — but made only narrow use of information from Steele’s sources about Page’s specific activities in 2016, chiefly his suspected July 2016 meetings in Moscow with Russian officials. [entire short sentence redacted] In fact, the FBI interviewed Page in March 2016 about his contact with Russian intelligence, the very month candidate Donald Trump named hi a foreign policy advisor.

And the Schiff memo is consistent with what Sheldon Whitehouse (among the few other people who had read the application at the time) said.

Whitehouse: I’ve got to be careful because some of this is still classified. But the conclusion that I’ve reached is that there was abundant evidence outside of the Steele dossier that would have provoked any responsible FBI with a counterintelligence concern to look at whether Carter Page was an undisclosed foreign agent. And to this day the FBI continues to assert that he was a undisclosed Russian foreign agent.

Importantly, however, it’s no longer just former prosecutors in the Democratic party who seem to confirm that Page was a real counterintelligence concern, and therefore legitimately a FISA target. At least, that’s what these two passages from the GOP House Intelligence Report suggest.

If you’re complaining that the Intelligence Community didn’t inform Trump about that members of his campaign team were “assessed to be potential counterintelligence concerns,” (and this likely includes Paul Manafort, as well as Page), then you can’t very well complain if FBI obtained a FISA warrant once those counterintelligence concerns left the campaign team. Hell, you’re practically inviting the FBI to obtain such a warrant while the counterintelligence concern is on the campaign, to help warn the candidate.

I know this is a bit to ask, but the GOP should not be able to have it both ways, to try to discredit the Trump investigation by pointing to the use of the Steele dossier in targeting Page, even while demanding FBI should have shared what it knew about Page because he posed a risk to Trump.

Lordy, There Were Tapes

No, not of Stormy Daniels and Trump — though there appear to be tapes of that too! But of Trump’s conversations with Jim Comey.

Here’s another section of the Democratic report on all the things HPSCI didn’t investigate.

After firing FBI Director James Comey on May 9, 2017, President Trump tweeted on May 12, 2017: “James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!” On June 9, 2017, the Committee sent White Counsel Donald McGahn a letter requesting that, “the White House inform the Committee if there exist now, or at any time have existed, any recordings, memoranda, or other documents within the possession of the White House which memorialized conversations between President Donald J. Trump and former FBI Director James Comey.” On June 23, 2017, the Committee received a response letter from the Assistant to the President for Legislative Affairs referring the Committee to “President Trump’s June 22, 2017, statement regarding this matter” as its official response. The letter quotes in full the President’s statement that was made in the form of successive tweets on Twitter, in which the President stated that he has “no idea whether there are ‘tapes’ or recordings” of his conversations with James Comey and that the President “did not make” and does “not have any such recordings.”

On June 29, 2017 the Committee sent the White House a second bipartisan letter urging the White House to appropriately and fully comply with the Committee’s June 9 request and clarifying that, should the White House not respond fully, “the Committee will consider using compulsory process to ensure a satisfactory response.” The Committee made clear that the President’s statement on Twitter, and the White House’s letter referring to the President’s statement, were only partially responsive to the Committee’s request. By only referring to the President’s statement, the White House’s letter did not clarify for the Committee whether the White House has any responsive recordings, memoranda, or other documents.

The White House responded that same day—June 29, 2017—stating: “To clarify, the White House’s previous response to your letter advising you that the White House has no recordings, together with the President’s public statements on the matter, constitute our response to your request.” As the Minority made clear to the Majority at the time, the White House’s two responses are woefully inadequate and sidestep the Committee’s explicit requests by not acknowledging or addressing (1) whether “recordings, memoranda, or other documents” at “any time have existed” within the “possession of the White House which memorialized conversations between President Donald J. Trump and former FBI Director James Comey”; and (2) whether any memoranda or other documents “exist now” in the White House’s possession memorializing the same.

The Minority has a good faith reason to believe that the White House does in fact possess such documentation memorializing President Trump’s conversations with Director Comey.

Subsequent press reporting revealed the existence of a memorandum reportedly composed by President Trump and Stephen Miller that referenced President Trump’s communications with Director Comey. The Committee should subpoena to the White House to produce all responsive documents.

Effectively the passage notes the following:

  • June 9: HPSCI members from both parties sent a request for tapes or memoranda
  • June 23: The day after Trump tweeted that he didn’t know if there were tapes, the White House responded that the President didn’t make tapes
  • June 29: Members from both parties sent a letter noting the WH response did not state whether it had any recordings or memoranda
  • June 29: The WH responded the same day stating that it has no recordings (and remaining silent about memoranda)

That’s when the Republicans got cold feet. Having been given an answer allowing for the possibility that tapes had been made (and destroyed), and a memo was written up about the conversation.

Maybe that’s the one McGahn was hiding in his safe, the one John Dowd complained about?

The debate in Mr. Trump’s West Wing has pitted Donald F. McGahn II, the White House counsel, against Ty Cobb, a lawyer brought in to manage the response to the investigation. Mr. Cobb has argued for turning over as many of the emails and documents requested by the special counsel as possible in hopes of quickly ending the investigation — or at least its focus on Mr. Trump.

Mr. McGahn supports cooperation, but has expressed worry about setting a precedent that would weaken the White House long after Mr. Trump’s tenure is over. He is described as particularly concerned about whether the president will invoke executive or attorney-client privilege to limit how forthcoming Mr. McGahn could be if he himself is interviewed by the special counsel as requested.

The friction escalated in recent days after Mr. Cobb was overheard by a reporter for The New York Times discussing the dispute during a lunchtime conversation at a popular Washington steakhouse. Mr. Cobb was heard talking about a White House lawyer he deemed “a McGahn spy” and saying Mr. McGahn had “a couple documents locked in a safe” that he seemed to suggest he wanted access to.

Even more interesting than what this does for the obstruction case against people like McGahn, it suggests Trump continued his habit of taping his meetings from his practice earlier in his career.

That might be as significant for our understanding of the June 9, 2016 meeting as it is for any meetings Trump had with Comey.

Why Do You Send Your Digital Guy to Meet with the Russian Ambassador?

The HPSCI Democrats have released the report they should have had ready to go last night: their 21-page report on all the thing the HPSCI Russian investigation didn’t cover but should have. It’s an interesting list (though it seriously lets the GOP off the hook for treating this investigation as an obstructive lark). I’ll likely reflect on what kind of mirror it holds up to the Republican sense of which witnesses they had to vet for Trump.

For now, I want to point at an interesting little detail. In the section describing why HPSCI should know more about the Trump campaign’s digital operations, the report reveals that Jared Kushner sent the Trump campaign Assistant Director of Data Analysis, Avi Berkowitz, to go meet with Russian Ambassador Sergey Kislyak a month after the election, around the same time Russia was floating back channels so banks could bail out Kushner’s failing family real estate empire.

Trump Campaign Digital Operation: The Committee ought to interview all relevant persons involved or associated with the Trump campaign’s digital operation to determine whether the campaign coordinated in any way with Russia in its digital program. The Committee will not be able to fully evaluate the campaign’s digital operation without speaking to a broader crosssection of individuals who can provide greater insight into the digital operation’s day-to-day activities or its relationship with Cambridge Analytica. The Committee also must interview individuals from other companies who conducted technology-related work on behalf of the Trump campaign or on behalf of other entities being funded through independent expenditures to gain a full picture of whether there was any coordination between Russia’s extensive social media efforts on Trump’s behalf and the campaign itself.

For example, Avraham (Avi) Berkowitz, served as Assistant Director of Data Analytics on the Trump Campaign. He was also an associate of Jared Kushner and Brad Parscale. The Committee has reason to believe that Mr. Kushner may have dispatched Mr. Berkowitz to meet with Russian Ambassador Kislyak in December 2016. Theresa Hong, who served as Digital Content Director for the Trump campaign, should also be asked to testify. Ms. Hong has spoken to the press about the campaign’s digital operation and her team’s work alongside Cambridge Analytica.

That very same month, I asked whether dark marketing had a role in all the mobs seemingly providing pressure in support of Trump at key moments.

That Berkowitz made that visit did get reported last spring. But not with the emphasis that Berkowitz was so central to the campaign’s digital organization.

Maybe (as someone suggested to me on Twitter) Jared was just sending Berkowitz to retrieve the thumb drives they had shared during the campaign?

Andy Finds an Acorn: The Searches of Carter Page’s Devices

I’ve long argued that Trump opponents should include Andrew McCarthy among the right wing Trump defenders they read. That’s true, in part, because he at least feigns to be considering the public evidence (though I think he has long since gotten swept up in tribalism). Moreover, as a former prosecutor who worked on some high visibility national security cases, he knows how these things worked fifteen years ago.

His piece on the Adam Schiff memo is typical of his current work. Virtually every single point is easily refuted; most are laughable, such as when he claims the FBI’s use of his 2013 interview to prosecute some spies means his March 2016 interview was truthful.

The memo does note that “the FBI also interviewed Page multiple times about his Russian intelligence contacts.” Apparently, these interviews stretch back to 2013. The memo also lets slip that there was at least one more interview with Page in March 2016, before the counterintelligence investigation began. We must assume that Page was a truthful informant since his information was used in a prosecution against Russian spies and Page himself has never been accused of lying to the FBI.

McCarthy also adheres to the GOP propaganda line that “Democrats conveniently omit is that … the Russian spies explicitly regarded him as an ‘idiot’ (and they had not even seen him on cable TV),” which I mocked in this piece at Vice.

The Republican response to the evidence that the Trump campaign named Page a foreign policy advisor around the same time the FBI interviewed him over suspected ties with Russian spies is perhaps the most pathetic thing in here. Among other things, it complains that the Schiff memo doesn’t mention that “a Russian intelligence officer called Page ‘an idiot.’”

So the latest Memoghazi arguments might best be summarized this way: After Democrats convincingly argued Trump made a suspected Russian asset a key foreign policy advisor, Republicans insisted that doesn’t matter because the suspected Russian asset was a moron.

On one point (a point I’ve been making), however, McCarthy is right.

The Schiff memo reveals, for the first time, that DOJ obtained a FISA order covering both electronic surveillance and “physical search.” Not many people understand this, but DOJ uses physical search orders not just to authorize FBI agents to search through a person’s home, but also to search through that person’s electronic devices (and cloud providers’ cloud storage). As I explained in my post on FISA and the Space-Time Continuum, using a physical search order allows the government to search far back in time.

Domestically, there are two kinds of collection: 1805, which is the collection of data in motion — an old fashioned wiretap, and 1824, which is called a “physical search” order. The government likes to hide the fact that the collection of data at rest is accomplished with an 1824 physical search order, not 1805. So an 1824 order might be used to search a closet, or it might be used to image someone’s hard drive. Most often, 1805 and 1824 get combined, but not always (the FISC released a breakdown for these last year).

Of course (as the Gartenlaub case will show), if you image someone’s hard drive, you’re going to get data from well before the time they’ve been under a FISA order, quite possibly even from before you’ve owned your computer.

In Keith Gartenlaub’s case, a physical search order was used to conduct a black bag search of his home, during which the FBI imaged and subsequently searched the saved hard drives from the last three computers Gartenlaub had used, going back a decade, which is how FBI found child porn that hadn’t been accessed in a decade.

And, as McCarthy notes (though without explaining the electronic/physical distinction), in the case of Carter Page, depending on what minimization procedures the FISC imposed, a physical search order approved on October 21, 2016 might allow FBI to search his devices for communications he had between March and September 2016, when he was a member of the Trump campaign.

What Democrats fail to mention is that the surveillance enabled the FBI to intercept not only his forward-going communications but also any stored emails and texts he might have had. Clearly, they were hoping to find a motherlode of campaign communications. Remember, Page was merely the vehicle for surveillance; the objective was to probe Trump ties to Russia.

I’ve explained that the near-certainty that NSA obtained a 705(b) order on Page for when he traveled to Moscow, London, and the Emirates in December and January would make such backwards looking surveillance even more likely.

I’m not sure that amounts to using Page as a vehicle to surveil the Trump campaign. Depending on how you count it, FISC modified somewhere between 112 and 310 applications in 2016, easily more than they ever had before (my guess is the big spike in numbers has to do with their consideration of the Riley SCOTUS precedent as they approve more orders accessing iPhones). Modifications are how minimization procedures show up in FISA counts, and imposing limits on what the government might access from Page’s devices is the kind of thing I’d expect to see out of the FISC.

Still, McCarthy doesn’t know that FBI used Page as a vehicle; the FBI could easily argue they were trying to protect Trump from the suspected spy the campaign’s non-existent vetting had invited into its midst. And he couldn’t know whether targeting Page allowed FBI to access campaign-related communications without knowing what kind of minimization procedures were imposed, if any.

A real oversight committee would make answering such a question a priority, because it’s the kind of question that goes to the core of the impact of the Page order on Trump’s campaign, but also because the question of how FISC orders permit FBI to access decades of information is a fairly important legal issue, not least in the Ninth Circuit in the Gartenlaub case.

Alas, HPSCI is not that real oversight committee, and so no one appears to be asking that question.

The Significance of the January 12 Reauthorization of Carter Page’s FISA Order

I’d like to riff on a small but significant detail revealed in the Schiff memo. This paragraph adds detail to the same general timeframe for the orders obtained against Page laid out in the Nunes memo: the first application approved on October 21, with reauthorizations in early January, early April, and late June.

Republican judges approved the Carter Page FISA orders

The passage also narrows down the judges who approved the orders, necessarily including FISC’s sole Reagan appointee Raymond Dearie and FISC’s sole Poppy appointee Anne Conway, plus two of the following W appointees:

 

  • Rosemary Collyer (worst FISC judge ever)
  • Claire Eagan (OK, she may be worse than Collyer)
  • Robert Kugler
  • Michael Mosman (a good one)
  • Dennis Saylor (also good)

I won’t dwell on this here, but it means the conspiracy theory that Obama appointee Rudolph Contreras approved the order, and because of that recused in the Flynn case, is false.

The first reapplication came days after the dossier and a second Isikoff article came out

Back to the timing. The footnotes provide the dates for two of the other applications: June 29 (in footnotes 12, 14, 15, 16) and January 12 (footnote 31), meaning the third must date between April 1 and 12 (the latter date being 90 days after the second application).

As I laid out here, the timing of that second application is critical to the dispute about whether FBI handled Michael Isikoff’s September 23 article appropriately, because it places the reapplication either before or after two key events: the publication of the Steele dossier on January 10 and Isikoff’s publication of this story on January 11. Isikoff’s January article included a link back to his earlier piece, making it fairly clear that Steele had been his source for the earlier article. The publication of that second Isikoff piece should have tipped off the FBI that the earlier article had been based on Steele (not least because the second Isikoff piece IDs Steele as an “FBI asset,” which surely got the Bureau’s attention).

FBI didn’t respond to Isikoff in time for the second application

Now, you could say that FBI should have immediately reacted to the Isikoff piece by alerting the FISC, but that’s suggesting bureaucracies work far faster than they do. Moreover, the application would not have been drafted on January 12. Except in emergency, the FISC requires a week notice on applications. That says the original application would have been submitted on or before January 5, before the dossier and second Isikoff piece.

FBI appears to have dealt with the Isikoff article interestingly. The body of the Schiff memo explains that Isikoff’s article, along with another that might be either Josh Rogin’s or Julia Ioffe’s articles from the time period, both of which cite Isikoff (Rogin’s is the only one of the three that gets denials from Page directly), were mentioned to show that Page was denying his Moscow meetings were significant.

That redacted sentence must refer to the January 12 application, because that footnote is the only footnote citing that application and nothing else in the paragraph discusses it.

An earlier passage describes the first notice to FISC, in that same January 12 application, “that Steele told the FBI that he made his unauthorized media disclosure because of his frustration at Director Comey’s public announcement shortly before the election that the FBI reopened its investigation into candidate Clinton’s email use.”

It’s possible that redacted sentence distinguishes what Grassley and Graham did in their referral of Steele. The first application stated that, “The FBI does not believe that [Steele] directly provided this information to the press.” Whereas the January reapplication stated in a footnote that the FBI, “did not believe that Steele gave information to Yahoo News that ‘published the September 23 News Article.” Within a day or so, the FBI should have realized that was not the case.

So it’s true FBI was denying that the September Isikoff article was based off Steele reporting after the time they should have known it was, but that can probably best be explained by the application timelines and the lassitude of bureaucracy.

The submission of the preliminary second application likely coincides with the Obama briefing on the Russian threat

As noted above, the second application would have been submitted a full week earlier than it otherwise would have had to have been given the 90-day term on FISA orders targeting Americans. That means the preliminary application was probably submitted by January 5. Not only would that have been too early to incorporate the response to the dossier, most notably the second Isikoff piece, but it even preceded Trump’s briefing on the Russian tampering, which took place January 6.

It’s also interesting timing for another reason: it means FBI may have submitted its reapplication targeting Page on the same day that Jim Comey and Sally Yates briefed Obama, Susan Rice, and Joe Biden, in part, on the fact that Putin’s mild response to the election hack sanctions rolled out in late December arose in response to requests from Mike Flynn to Sergey Kislyak. As I addressed here, that briefing has become a subject of controversy again, as Chuck Grassley and Lindsey Graham tried to suggest that the Steele dossier may have contributed to the investigation of Flynn.

But contrary to what the Republican Senators claimed in their letter to Rice on the subject, Rice claims the Steele dossier and the counterintelligence investigation never came up.

The memorandum to file drafted by Ambassador Rice memorialized an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn. In light of concerning communications between members of the Trump team and Russian officials, before and after the election, President Obama, on behalf of his national security team, appropriately sought the FBI and the Department of Justice’s guidance on this subject. In the conversation Ambassador Rice documented, there was no discussion of Christopher Steele or the Steele dossier, contrary to the suggestion in your letter.

Given the importance and sensitivity of the subject matter, and upon the advice of the White House Counsel’s Office, Ambassador Rice created a permanent record of the discussion. Ambassador Rice memorialized the discussion on January 20, because that was the first opportunity she had to do so, given the particularly intense responsibilities of the National Security Advisor during the remaining days of the Administration and transition. Ambassador Rice memorialized the discussion in an email sent to herself during the morning of January 20, 2017. The time stamp reflected on the email is not accurate, as Ambassador Rice departed the White House shortly before noon on January 20. While serving as National Security Advisor, Ambassador Rice was not briefed on the existence of any FBI investigation into allegations of collusion between Mr. Trump’s associates and Russia, and she later learned of the fact of this investigation from Director Comey’s subsequent public testimony. Ambassador Rice was not informed of any FISA applications sought by the FBI in its investigation, and she only learned of them from press reports after leaving office.

Grassley and Graham appear to have confused the IC investigation with the counterintelligence investigation, only the latter of which incorporated the Steele dossier.

In any case, one reason the apparent coincidence between the January 5 briefing and the reapplication process is important is it suggests it was also pushed through a week early to provide room for error with the inauguration. If a FISA order on January 19 goes awry, it might not get approved under President Trump. But if anything happened to that application submitted around January 5, it’d be approved with plenty of time before the new Administration took over.

Intelligence from Page’s FISA collection helped support the government’s high confidence that Russia attempted to influence the election

Here’s one of the most interesting details in the Schiff memo, however. This passage describes that the wiretap on Page obtained important intelligence, though it won’t tell us what it is.

That redacted footnote, number 14, describes that the redacted intelligence is part of what gave the Intelligence Community “high confidence”

Admittedly, this footnote, with its citation to the October and June applications, is uncertain on this point. But for the wiretap on Page to have supported the December ICA assessment of the Russian tampering, then it would have had to have involved collection from that first period.

If that’s right, then it suggests the reason the Obama Administration may have applied for the order renewal early, the same day Comey and Yates briefed Obama on the ICA and Flynn, is because something from that order (possibly targeting Page’s December trip to Moscow) added to the IC’s certainty that the Russians had pulled off an election operation.

Schiff Memo Reveals that Mifsud Specifically Told Papadopoulos Russia Would Release Hillary Emails to Help Trump Campaign

“If it’s what you say I love it” – Don Jr., gleefully accepting Russian dirt after George Papadopoulos had been told Russia would release emails to help the campaign

HPSCI just released the Schiff memo responding to the Nunes memo. Mostly, it’s underwhelming.

But there is one piece of important news. The memo provides more details about what George Papadopoulos told Australian Ambassador, Alexander Downer, about the Russian outreach via Joseph Mifsud. That passage reads:

George Papadopoulos revealed [redacted] that individuals linked to Russia, who took interest in Papadopoulos as a Trump campaign foreign policy adviser, informed him in late April 2016 that Russia [two lines redacted]. Papadopoulos’s disclosure, moreover, occurred against the backdrop  of Russia’s aggressive covert campaign to influence our elections, which the FBI was already monitoring. We would later learn in Papadopoulos’s plea that the information the Russians could assist by anonymously releasing were thousands of Hillary Clinton emails.

While the description of what Papadopoulos said is redacted, the context makes it clear (as does this Adam Schiff tweet) that Papadopoulos didn’t tell Downer specifically what Russia had told him was available, only that they could release it to help Trump.

But that Mifsud told Papadopoulos that the Russians were thinking of releasing it to help Trump is news, important news. It means the discussions of setting up increasingly senior levels of meetings between Russia and the Trump campaign took place against the offer of help in the form of released kompromat.

Which, particularly given the evidence that Papadopoulos shared that information with the campaign, makes the June 9 meeting still more damning.

In Op-Ed Calling for Counter-Disinformation Strategy, Will Hurd Engages in His Own Disinformation

I like Will Hurd. I think he’s smart, thoughtful, and (when I met him at an event I did last year in DC) personally very nice. So I was a bit disappointed by this op-ed, arguing that to save democracy, “Americans must begin working together,” just weeks after he voted with all the rest of the House Intelligence Committee Republicans to release the Nunes memo.

After revealing that his CIA clandestine service was in places in Russia’s sphere, Hurd argues that we need a counter-disinformation strategy.

I served in places where Russia has geopolitical interests, and learned that Russia has one simple goal: to erode trust in democratic institutions.

[snip]

To address continued Russian disinformation campaigns, we need to develop a national counter-disinformation strategy. The strategy needs to span the entirety of government and civil society, to enable a coordinated effort to counter the threat that influence operations pose to our democracy. It should implement similar principles to those in the Department of Homeland Security’s Strategy for Countering Violent Extremism, with a focus on truly understanding the threat and developing ways to shut it down.

That much I can agree with him on.

But it has no business appearing in an op-ed that suggests bipartisan criticism of the Nunes Memo stunt amounts to Russia winning — which flips reality on its head.

Unfortunately, over the last year, the United States has demonstrated a lack of resilience to this infection. The current highly charged political environment is making it easier for the Russians to achieve their goal. The hyperbolic debate over the release of the FISA memos by the House Intelligence Committee further helps the Russians achieve their aim. Most recently, Russian social-media efforts used computational propaganda to influence public perceptions of this issue, and we found ourselves once again divided among party lines.

When the public loses trust in the press, the Russians are winning. When the press is hyper-critical of Congress for executing oversight and providing transparency on the actions taken by the leaders of our law-enforcement agencies, the Russians are winning. When Congress and the general public disagree simply along party lines, the Russians are winning. When there is friction between Congress and the executive branch resulting in the further erosion of trust in our democratic institutions, the Russians are winning.

Let’s unpack this passage closely.

First, note how Hurd refers to “the last year” during which the US demonstrated a lack of resilience to Russian disinformation? Hurd is pretending that that lack of resilience doesn’t extend to 2016, when in fact at least the social media companies started to respond to Russian election year events last year.

He then calls the debate over the release of the memo — not propaganda seeded by Republicans claiming the Nunes memo revealed something “worse than Watergate” — hyperbolic.

Hurd then makes the same mistake everyone always makes with the Fucking Gizmo™, the Hamilton Dashboard that tracks right wing propaganda and — because it moves in tandem with official Russian propaganda outlets — deems it Russian, not American.

Then Hurd rebrands Nunes’ stunt as the press being “hyper-critical of Congress for executing oversight and providing transparency on the actions taken by the leaders of our law-enforcement agencies.” As I’ve noted before, it’s particularly rich for people who voted against the Amash-Lofgren amendment to the FISA 702 reauthorization to claim they support transparency, as that amendment would have provided just that. But it’s also pathetic that Hurd would claim either the Nunes or Schiff memos are about transparency or oversight. It’d be awesome if HPSCI decided to hold a hearing on the use of consultants and informants in FISA applications and elsewhere in law enforcement. The Nunes stunt only brought a concern about that to a white politically connect white guy, not the people who really would benefit from actual oversight.

And more importantly, the Nunes memo (which GOPers admitted made a false claim about whether FISC got notice about the political nature of the Steele dossier), especially, was about obfuscation, not transparency.

Will Hurd was on the wrong side of adult behavior when he voted in favor of the Nunes memo. He seems to be trying to spin his vote as something it wasn’t.

He’d do well if, instead, he tried to make up for it.

On the Grassley-Feinstein Dispute

In a podcast with Preet Bharara this week, Sheldon Whitehouse had the following exchange about whether he thought Carter Page should have been surveilled. (after 24:30)

Whitehouse: I’ve got to be a little bit careful because I’m one of the few Senators who have been given access to the underlying material.

Bharara: Meaning the affidavit in support of the FISA application.

Whitehouse And related documents, yes. The package.

Bharara: And you’ve gone to read them?

Whitehouse: I’ve gone to read them.

Bharara: You didn’t send Trey Gowdy?

Whitehouse: [Laughs] I did not send Trey Gowdy. I actually went through them. And, so I’ve got to be careful because some of this is still classified. But the conclusion that I’ve reached is that there was abundant evidence outside of the Steele dossier that would have provoked any responsible FBI with a counterintelligence concern to look at whether Carter Page was an undisclosed foreign agent. And to this day the FBI continues to assert that he was a undisclosed Russian foreign agent.

For the following discussion, then, keep in mind that a very sober former US Attorney has read the case against Carter Page and says that the FBI still — still, after Page is as far as we know no longer under a FISA order — asserts he “was” an undisclosed foreign agent (it’s not clear what that past tense “was” is doing, as it could mean he was a foreign agent until the attention on him got too intense or remains one; also, I believe John Ratcliffe, a Republican on the House Judiciary Committee and also a former US Attorney, has read the application too).

With that background, I’d like to turn to the substance of the dispute between Chuck Grassley and Dianne Feinstein over the dossier, which has played out in the form of a referral of Christopher Steele to FBI for lying. In the wake of the Nunes memo theatrics, Grassley released first a heavily redacted version of the referral he and Lindsey Graham sent the FBI in early January, followed by a less-redacted version this week. The referral, even as a transparent political stunt, is nevertheless more substantive than Devin Nunes’ memo, leading some to take it more seriously.  Which may be why Feinstein released a rebuttal this week.

In case you’re wondering, I’m tracking footnote escalation in these documents. They line up this way:

  • 0: Nunes memo (0 footnotes over 4 pages, or 1 over 6 if you count Don McGahn’s cover letter)
  • 2.6: Grassley referral (26 footnotes over 10 pages)
  • 3.6: Schiff memo (36 footnotes, per HPSCI transcript, over 10 pages)
  • 5.4: Feinstein rebuttal (27 footnotes over 5 pages)

So let me answer a series of questions about the memo as a way of arguing that, while by all means the FBI’s use of consultants might bear more scrutiny, this is still a side-show.

Did Christopher Steele lie?

The Grassely-Graham referral says Steele may have lied, but doesn’t commit to whether classified documents obtained by the Senate Judiciary Committee (presumably including the first two Page applications), a declaration Steele submitted in a British lawsuit, or Steele’s statements to the FBI include lies.

The FBI has since provided the Committee access to classified documents relevant to the FBI’s relationship with Mr. Steele and whether the FBI relied on his dossier work. As explained in greater detail below, when information in those classified documents is evaluated in light of sworn statements by Mr. Steele in British litigation, it appears that either Mr. Steele lied to the FBI or the British court, or that the classified documents reviewed by the Committee contain materially false statements.

On September 3, 2017 — a good three months before the Grassley-Graham referral — I pointed to a number of things in the Steele declaration, specifically pertaining to who got the dossier or heard about it when, that I deemed “improbable.”

That was the genius of the joint (!!) Russian-Republican campaign of lawfare against the dossier. As Steele and BuzzFeed and Fusion tried to avoid liability for false claims against Webzilla and Alfa Bank and their owners, they were backed into corners where they had to admit that Democrats funded the dossier and made claims that might crumble as Congress scrutinized the dossier.

So, yeah, I think it quite possible that Steele told some stretchers.

Did Christopher Steele lie to the FBI?

But that only matters if he lied to the FBI (and not really even there). The UK is not about to extradite one of its former spies because of lies told in the UK — they’re not even going to extradite alleged hacker Lauri Love, because we’re a barbaric country. And I assume the Brits give their spooks even more leeway to fib a little to courts than the US does.

The most critical passage of the referral on this point, which appears to make a claim about whether Steele told the FBI he had shared information with the press before they first used his dossier in a Page application, looks like this.

The footnote in the middle of that redacted passage goes to an unredacted footnote that says,

The FBI has failed to provide the Committee the 1023s documenting all of Mr. Steele’s statements to the FBI, so the Committee is relying on the accuracy of the FBI’s representation to the FISC regarding the statements.

1023s are Confidential Human Source reports.

I say that’s the most important passage because the referral goes on to admit that in subsequent FISA applications the FBI explained that the relationship with Steele had been terminated because of his obvious involvement in the October 31, 2016 David Corn story. Graham and Grassley complain that the FBI didn’t use Steele’s defiance of the FBI request not to share this information with anyone besides the FBI to downgrade his credibility rankings. Apparently FISC was less concerned about that than Graham and Grassley, which may say more about standards for informants in FISA applications than Steele or Carter Page.

The footnote, though, is the biggest tell. That’s because Feinstein’s rebuttal makes it quite clear that after Grassley and Graham made their referral, SJC received documents — which, given what we know has been given to HPSCI, surely include those 1023s — that would alter the claims made in the referral.

The Department of Justice has provided documents regarding its interactions with Mr. Steele to the Judiciary Committee both before and after the criminal referral was made. Despite this, the Majority did not modify the criminal referral and pressed forward with its original claims, which do not take into account the additional information provided after the initial January 4 referral.

Feinstein then goes on to state, several times and underlining almost everything for emphasis, that the referral provides no proof that Steele was ever asked if he had served as the source for Isikoff.

  • Importantly, the criminal referral fails to identify when, if ever, Mr. Steele was asked about and provided a materially false statement about his press contacts.
  • Tellingly, it also fails to explain any circumstances which would have required Mr. Steele to seek the FBI’s permission to speak to the press or to disclose if he had done so.

[snip]

But the criminal referral provides no evidence that Steele was ever asked about the Isikoff article, or if asked that he lied.

In other words, between the redacted claim about what Steele said and Feinstein’s repeated claims that the referral presents no evidence Steele was asked about his prior contacts with the press, the evidence seems to suggest that Steele was probably not asked. And once he was, after the Corn article, he clearly did admit to the FBI he had spoken with the press. So while it appears Steele blew off the FBI’s warnings not to leak to the press, the evidence that he lied to the FBI appears far weaker.

Does it harm the viability of the FISA application?

That should end the analysis, because the ostensible purpose of the referral is a criminal referral, not to make an argument about the FISA process.

But let’s assess the memo’s efforts to discredit the FISA application.

In two places, the referral suggests the dossier played a bigger role in the FISA application than, for example, Whitehouse suggests.

Indeed, the documents we have reviewed show that the FBI took important investigative steps largely based on Mr. Steele’s information–and relying heavily on his credibility.

[snip]

Mr. Steele’s information formed a significant portion of the FBI’s warrant application, and the FISA application relied more heavily on Steele’s credibility than on any independent verification or corroboration for his claims. Thus the basis for the warrant authorizing surveillance on a U.S. citizen rests largely on Mr. Steele’s credibility.

These claims would be more convincing, however, if they acknowledged that FBI had to have obtained valuable foreign intelligence off their Page wiretap over the course of the year they had him wiretapped to get three more applications approved.

Indeed, had Grassley and Graham commented on the addition of new information in each application, their more justifiable complaint that the FBI did not alert FISC to the UK filings in which Steele admitted more contact with the press than (they claim) show up in the applications would be more compelling. If you’re going to bitch about newly learned information not showing up in subsequent applications, then admit that newly acquired information showed up.

Likewise, I’m very sympathetic with the substance of the Grassley-Graham complaint that Steele’s discussions with the press made it more likely that disinformation got inserted into the dossier (see my most recently post on that topic), but I think the Grassley-Graham complaint undermines itself in several ways.

Simply put, the more people who contemporaneously knew that Mr. Steele was compiling his dossier, the more likely it was vulnerable to manipulation. In fact, the British litigation, which involves a post-election dossier memorandum, Mr. Steele admitted that he received and included in it unsolicited–and unverified–allegations. That filing implies that implies that he similar received unsolicited intelligence on these matters prior to the election as well, stating that Mr. Steele “continued to receive unsolicited intelligence on the matters covered by the pre-election memoranda after the US Presidential election.” [my underline]

The passage is followed by an entirely redacted paragraph that likely talks about disinformation.

This is actually an important claim, not just because it raises the possibility that Page might be unfairly surveilled as part of a Russian effort to distract attention from others (though its use in a secret application wouldn’t have sown the discord it has had it not leaked), but also because we can check whether their claims hold up against the Steele declaration. It’s one place we can check the referral to see whether their arguments accurately reflect the underlying evidence.

Importantly, to support a claim the potential for disinformation in the Steele dossier show up in the form of unsolicited information earlier than they otherwise substantiate, they claim a statement in Steele’s earlier declaration pertains to pre-election memos. Here’s what it looks like in that declaration:

That is, Steele didn’t say he was getting unsolicited information prior to the election; this was, in both declarations, a reference to the single December report.

Moreover, while I absolutely agree that the last report is the most likely to be disinformation, the referral is actually not clear whether that December 13 report ever actually got included in a FISA application. There’s no reason it would have been. While the last report mentions Page, the mention is only a referral back to earlier claims that Trump’s camp was trying to clean up after reports of Page’s involvement with the Russians got made public. So the risk that the December memorandum consisted partially or wholly of disinformation is likely utterly irrelevant to the validity of the three later FISA orders targeting Page.

Which is to say that, while I think worries about disinformation are real (particularly given their reference to Rinat Akhmetshin allegedly learning about the dossier during the summer, which I wrote about here), the case Grassley and Graham make on that point both miscites Steele’s own declaration and overstates the impact of their argued case on a Page application.

What about the Michael Isikoff reference?

Perhaps the most interesting detail in the Grassley-Graham referral pertains to their obsession with the applications’ references to the September 23 Michael Isikoff article based off Steele’s early discussions with the press. Grassley-Graham claim there’s no information corroborating the dossier (there’s a redacted Comey quote that likely says something similar). In that context, they point to the reference to Isikoff without explaining what it was doing there.

The application appears to contain no additional information corroborating the dossier allegations against Mr. Page, although it does cite to a news article that appears to be sourced to Mr. Steele’s dossier as well.

Elsewhere, I’ve seen people suggest the reference to Isikoff may have justified the need for secrecy or something, rater than as corroboration. But neither the referral nor Feinstein’s rebuttal explains what the reference is doing.

In this passage, Grassley and Graham not only focus on Isikoff, but they ascribe certain motives to the way FBI referred to it, suggesting the claim that they did not believe Steele was a source for Isikoff was an attempt to “shield Mr. Steele’s credibility.”

There’s absolutely no reason the FBI would have seen the need to shield Steele’s credibility in October. He was credible. More troubling is that the FBI said much the same thing in January.

In the January reapplication, the FBI stated in a footnote that, “it did not believe that Steele gave information to Yahoo News that ‘published the September 23 News Article.”

Let’s do some math.

If I’m doing my math correctly, if the FISA reapplications happened at a regular 90 day interval, they’d look like this.

That’d be consistent with what the Nunes memo said about who signed what, and would fit the firing dates of January 30 for Yates and May 9 for Comey, as well as the start date for Rosenstein of April 26 (Chris Wray started on August 1).

If that’s right, then Isikoff wrote his second article on the Steele dossier, one that made it clear via a link his earlier piece had been based off Steele, before the second application was submitted (though the application would have been finished and submitted in preliminary form a week earlier, meaning FBI would have had to note the Isikoff piece immediately to get it into the application, but the topic of the Isikoff piece — that Steele was an FBI asset — might have attracted their attention).

But that’s probably not right because the Grassley-Graham referral describes a June, not July, reapplication, meaning the application would have been no later than the last week of June. That makes the reauthorization dates look more like this, distributing the extra days roughly proportionately:

That would put the second footnote claiming the FBI had no reason to believe the September Isikoff piece was based on Steele before the time when the second Isikoff piece made it clear.

I’m doing this for a second reason, however. It’s possible (particularly given Whitehouse’s comments) Carter Page remains under surveillance, but for some reason it’s no longer contentious.

That might be the case if the reapplications no longer rely on the dossier.

And I’m interested in that timing because, on September 9, I made what was implicit clear: That pointing to the September Isikoff piece to claim the Steele dossier had been corroborated was self-referential. I’m not positive I was the first, but by that point, the Isikoff thing would have been made explicit.

Does this matter at all to the Mueller inquiry?

Ultimately, though, particularly given the Nunes memo confirmation that the counterintelligence investigation into Trump’s people all stems from the George Papadopoulos tip, and not Page (particularly given the evidence that the FBI was very conservative in their investigation of him) there’s not enough in even the Grassley-Graham referral to raise questions about the Mueller investigation, especially given a point I made out in the Politico last week.

According to a mid-January status report in the case against Manafort and his deputy, Rick Gates, the government has turned over “more than 590,000 items” to his defense team, “including (but not limited to) financial records, records from vendors identified in the indictment, email communications involving the defendants, and corporate records.” He and Gates have received imaged copies of 87 laptops, phones and thumb drives, and copies off 19 search-warrant applications. He has not received, however, a FISA notice, which the government would be required to provide if they planned to use anything acquired using evidence obtained using the reported FISA warrant against Manafort. That’s evidence of just how much of a distraction Manafort’s strategy [of using the Steele dossier to discredit the Mueller investigation] is, of turning the dossier into a surrogate for the far more substantive case against him and others.

And it’s not just Manafort. Not a single thing in the George Papadopoulos and Michael Flynn guilty pleas—for lying to the FBI—stems from any recognizable mention in the dossier, either. Even if the Steele dossier were a poisoned fruit, rather than the kind of routine oppo research that Republicans themselves had pushed to the FBI to support investigations, Mueller has planted an entirely new tree blooming with incriminating details.

Thus the point of my graphic above. The Steele dossier evidence used in the Carter Page FISA application to support an investigation into Cater Page, no matter what else it says about the FISA application process or FBI candor, is just a small corner of the investigation into Trump’s people.

 

The Harm Releasing the Nunes Memo Caused

I did two pieces elsewhere on the Devin Nunes memo yesterday. At Vice, I tracked all the holes in the memo; subsequent reporting showed that I hit virtually all the big ones that Adam Schiff hit in his response memo: the memo misrepresented what FBI told FISC about the political nature of Christopher Steele’s, it misrepresents Andrew McCabe’s testimony, and the memo misrepresented why George Papadopoulos was mentioned in the application. At HuffPo, I described how on the twin FISA events of the last few weeks — 702 reauthorization and the Nunes memo — both Nunes and Paul Ryan were on the wrong side of the principles of rule of law and civil liberties.

Since the memo has proven to be such a dud, a lot of people are now questioning DOJ’s and Democrats’ claims that releasing the memo would harm national security. I want to lay out three ways (DOJ surely believes) it may well do that.

Tells Carter Page and any co-conspirators precisely when FISA surveillance started

The memo tells Carter Page — and any co-conspirators both within the Trump camp and overseas — precisely when the surveillance on Page started and what it consists of.

FBI obtained an electronic surveillance warrant against Page on October 21, 2016, and obtained 3 reauthorizations (so roughly January 19, April 19, and July 18). While Page’s interlocutors overseas were likely wiretapped, if possible, associates in the Trump camp can now assume any conversations they had with him before October 21 were not recorded and remain unavailable to Robert Mueller.

Mind you, we know the memo doesn’t reveal the full extent of surveillance directed against Carter Page, because it gives no details on the 2014 FISA wiretap reportedly used against him. That leaves open the possibility that he was surveilled using other means. I think the GOP would have included had FISC approved a physical search FISA warrant against Page, because that would include the possibility of obtaining stored communications from during the campaign. But I would also bet a lot of money that whatever Attorney General was in charge during periods when Page traveled overseas approved a 705(b) order on him, permitting surveillance to continue while he was overseas. I’ll have more to say on this in upcoming days.

Note, it is also possible that the surveillance against Page continues.

Tells subjects of the investigation the status of the investigation and FBI’s ability to validate the Steele memo

The memo provides other details about the investigation, too.

On October 21, per a quotation from FBI Assistant Director Bill Priestap, the investigation into Russian ties with the Trump camp was is its “infancy.” Again, this will let Russians and Trump associates know that anything they managed to destroy before that date may well be unavailable to Mueller.

Later in October, the source report on Steele reported that the dossier had been “only minimally corroborated.” If any of the events in the dossier are real, then the Russians (especially) will have a sense of how unsuccessful the FBI had been in finding the evidence to corroborate those events. If the dossier is, as I’ve suggested, disinformation, the Russians would know that their disinformation was wasting FBI Agent time at least for months.

Tells Australians and every other foreign partner shared intelligence may be officially declassified

The memo mentions the Papadopoulos tip and confirms that’s what triggered the investigation; it also confirms that nothing shared prior to then had triggered an investigation. While the description here doesn’t attribute that intelligence to the Australians, we know that’s where it came from. Now Australia and every other country will know that intelligence they share, including intelligence that makes it look like Five Eyes officials are reporting on the citizens of other Five Eyes countries, may be released by Devin Nunes for political gain. This will add to the many reasons why our friends will hesitate before sharing intelligence with us.

Makes it more likely defendants will get FISA review

In the 40 year history of FISA, no defendant who got notice that FISA data was being used against them in prosecution has been able to review the application used against them. Because Nunes released this information so frivolously, because White House Counsel Don McGahn, in his cover memo, suggested this was a time when “public interest in disclosure of [FISA materials] outweighs any need to protect the information, the memo lowers the bar for release of FISA-related information going forward.

I assume Carter Page, if he is charged, will successfully be able to win review of his FISA application (and think that would be entirely appropriate); that may mean he doesn’t get charged or, if he does, Mueller has to bend over backwards to avoid using FISA material.

But I also assume — and hope — that this disclosure ends the 40 year drought on the release of information, which the original drafters of FISA envisioned would be appropriate in certain circumstances. I think this the one salutary benefit of this memo; it makes it more likely that FISA will work the way it is supposed to going forward.

I even think it possible that the release of this information may affect the response to Keith Gartenlaub’s pending appeal in the Ninth Circuit. His is a case that merits FISA review, and whereas the court might have hesitated to give him that in the past, it would be far easier for them to do so here.

In other words, the release of this memo likely helped those Mueller is trying to investigate, provided another reason for our foreign partners to hesitate before sharing intelligence with us, and makes it more likely some defendants will get to review their FISA application going forward. I can see how DOJ would consider all of that harmful to national security.

Update: On Twitter some folks added that this makes people distrust FBI, making it less likely they’ll share information with the Bureau. In my opinion actually sharing interview reports with HPSCI already did that (though that Chris Wray was forced to do so wouldn’t be as widely known). I also think the sheer shittiness of the dossier minimizes the impact of that somewhat. But I think it’s a fair point.