By: Charles Lipson – realclearpolitics.com – December 11, 2019
The way to unravel a criminal conspiracy is to begin with the weakest links, the ones already doomed by convincing evidence. Knowing they face serious jail time, these “weak links” have powerful reasons to cooperate with law enforcement. Flipping on their fellow conspirators is the best way, perhaps the only way, to lessen their own sentences.
That is exactly how the Department of Justice and FBI handled “Operation Varsity Blues,” the college-admissions cheating scandal. The weakest link was a man facing criminal charges completely unrelated to admissions bribery. To reduce his liability, he told investigators, “I have something to trade with you guys.” And so began the tabloid scandal, where each successive defendant gave up information on the others. Who was the guy they paid? What did he do for them? Who told them about that guy? This widening gyre of defendants might not be part of the conspiracy — indeed, there might not be a full-fledged conspiracy at all — but all are vulnerable to criminal charges for their own conduct. They have compelling reasons to play nice with law enforcement.
This tried-and-true law enforcement technique is available to U.S. Attorney John Durham as he tries to unravel the FBI’s illegal surveillance of Donald Trump’s presidential campaign, transition to office, and early presidency. Michael Horowitz, inspector general for the DoJ and FBI, began the process with his investigation. But he was limited to interviewing current employees of those two agencies. He cannot subpoena former employees or talk to others at the CIA, State Department, or Pentagon who might have been involved. John Durham can.
As a U.S. attorney, appointed by Attorney General Bill Barr to continue the investigation, Durham has the power to convene grand juries and seek indictments. We know he has already transformed his inquiry into a criminal investigation, looked at multiple branches of the Obama administration, and traveled abroad to take witnesses’ testimony. He is serious and relentless, a nonpartisan professional who has worked for years on high-profile corruption cases, including those involving FBI agents.
So, who are the weakest links as Durham’s investigation moves forward? One is surely Kevin Clinesmith, a lawyer in Comey’s FBI who is highlighted in the Horowitz Report (pages 186-190). Sen. Lindsey Graham mentioned those pages in his Tuesday press conference. In them, Horowitz presents evidence that Clinesmith not only altered official documents, he completely changed their meaning. The altered documents painted Carter Page as a foreign spy; the originals said there was no evidence for that. The exculpatory evidence was hidden from the Foreign Intelligence Surveillance Courts. The lies helped gain a secret warrant to spy on Page.
These changes are serious but they resemble a joke my grandfather loved to tell. It was during the Great Depression, he said, when a friend congratulated him for making $100,000 in the stock market. “I truly appreciate the kind words, but you should know it wasn’t really $100,000. It was only $50,000. It wasn’t the stock market; it was the bond market. And I didn’t make money. I lost it.”
Granddad’s joke is a metaphor for the warrants sought by Comey’s FBI and then-Attorney General Loretta Lynch’s DoJ. They already knew the real story was $50,000 lost in the bond market. They told the FISA court about $100,000 stock profits to get the second, third, and fourth warrants.
The FISA court was told Carter Page was a foreign agent when the FBI, DoJ, and CIA knew he was not. The court was told Russians had offered Page billions of dollars in an oil-and-gas deal to pay for his help. The FBI, DoJ, and CIA knew there was no such offer.
The same officials pulled the same trick with the Steele dossier. They knew it was based on unreliable gossip and rumors — they had that evidence in writing — and they hid it from the courts. The Horowitz Report says so definitively. They not only hid it; they told the court the exact opposite. They said Steele and his sources were reliable when they knew they were not. They lied to the court, and the judges bought it.
How important was the Steele dossier to gaining the warrant? The FBI’s own legal counsel said, in internal documents, “this is essentially a single source FISA” (p. 132). That source was the Steele dossier. (Remember when Comey and all the Democrats denied that? There was lots more evidence in the applications, they said. There wasn’t.) Horowitz underscores the dossier’s significance when he concludes it was “central and essential” to gaining the surveillance warrant (p. 359).
How did the FBI and DoJ know the Steele dossier was garbage? Because they couldn’t substantiate any of its key claims and because they interviewed Steele’s most important source. This “subsource” told them unambiguously that the scandalous claims in the dossier were based on his own statements to Steele but that they were exaggerated and distorted in the dossier. The subsource told the FBI that Steele’s misleading, unverified claims were simply rumors and “bar talk.” Again, the FBI had this damning evidence in hand before it renewed the FISA applications on Carter Page. (It should have had them before the first application, but it didn’t bother.) Again, it lied to the FISA court.
These are serious crimes, not only against Carter Page but against the true target of the spying, Donald Trump’s campaign and presidency — and ultimately against the American people. Those who committed the crimes must be held to account. The rule of law must apply to government officials, not just the unwashed masses. In addition, we need to restore confidence in our counterintelligence tools, which are essential for national security. Secret warrants for surveillance are meant to be used only against America’s foreign enemies. Voters will support that, but only if they are convinced the tools won’t be turned on them by a surveillance state. Restoring that confidence requires additional safeguards and accountability for those who ignored the laws and rules already in place.
We don’t know yet whether the highest-level officials who signed the falsified FISA applications knew about these lies or their centrality to the application. The senior officials may have simply been monumentally incompetent fools, duped by their underlings. Still, the senior officials who signed the documents had a duty to check the information and either failed in that duty or lied about it. They told the court the information was truthful and verified when it was not, that the sources were reliable when they were not.
Clinesmith, for one, has compelling incentives to say who knew what and when. He was apparently caught red-handed changing official documents. His lawyer ought to be seeking ways to lessen the criminal consequences. The only way to do that is to come clean.
Anybody who worked with Clinesmith should be thinking the same thing. It would be good for them and it would be good for the country.
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