Oct. 18, 2022
Permission to republish original opeds and cartoons granted.
No FISA reauthorization without
Trump’s declassified Russiagate papers
By Robert Romano
One of the most important votes
coming up in the next Congress is the Dec. 2023
all but certain reauthorization of the Foreign Intelligence Surveillance Act
(FISA), which allows for surveillance of
U.S. citizens even if they have not committed any crime on suspicion that they
might be foreign agents, or perhaps in contact with foreign agents, even if it
turns out to be made up.
To make the accusation, as
happened with the Trump campaign beginning in Oct. 2016, the FBI and the
Justice Department had to give the FISA Court a “statement of the facts and
circumstances relied upon by the applicant to justify his belief that… the
target of the electronic surveillance is a foreign power or an agent of a
foreign power…”
The application to the FISA Court
stated, “The target of this application is Carter W. Page, a U.S. person, and
an agent of a foreign power… The status of the target was determined in or
about October 2016 from information provided by the U.S. State Department…”
In part, those allegations relied
on the Clinton campaign and DNC-financed Christopher Steele dossier that there was a “well-developed conspiracy” by Russia and the
Trump campaign to hack the DNC and give their emails to Wikileaks.
But they also stated as part of
the justification for that interference in the Trump campaign that Russia was
attempting to convince the Trump campaign to not send weapons to Ukraine and to
instead recognize Russia’s annexation of Crimea in Ukraine, telling the FISA
Court that the Trump campaign “worked behind the sences to make sure [the
Republican] platform would not call for giving weapons to Ukraine to fight
Russian and rebel forces” stating Trump “might recognize Crimea as Russian
territory and lift punitive U.S. sanctions against Russia,” citing news
reports.
The Justice Department also
included an Aug. 2016 Politico story highlighting
Trump’s positions on Ukraine, including his suggestion the people of Crimea
preferred to live in Russia, and his doubts that the territories Russia had
seized could be reclaimed suggested without World War III, which Trump was
running against on the campaign trail as much as Hillary Clinton.
At a Harrisburg, Pennsylvania,
Politico quoted Trump saying a military conflict to take back Crimea would risk
nuclear war: “You wanna go back? ...You want to have World War III to get it
back?” And it quoted Trump on ABC’s “This Week” suggesting the people of Crimea
supported Russian annexation: “The people of Crimea, from what I’ve heard,
would rather be with Russia than where they were.” This was Trump’s anti-war
position in 2016 that helped him secure narrow wins in Pennsylvania, Michigan
and Wisconsin and an Electoral College majority against Hillary Clinton, who he
often called a war-monger.
So, that was the predicate before
the FISA Court: A foreign power was allegedly attempting to influence the candidate,
Trump, via campaign volunteers like Page but also hired help like Manafort, to
simply recognize Russia’s claims to Ukraine’s sovereign territories in order to
avert war.
During the convention, Paul
Manafort was campaign chairman, who was swiftly removed by Trump after the New York Times non-coincidentally ran an erroneous hit piece
in Aug. 2016 stating he had corrupt dealings in Ukraine, with a supposed ominous sounding “black ledger.” Manafort was
the campaign manager of deposed former Ukrainian President Viktor Yanukovych
when he was first elected in 2010. He also helped Gerald Ford secure the
Republican nomination on the floor against Ronald Reagan in 1976, and then
helped Reagan do the same thing in 1980. In 2016, Trump tapped him to win the
convention by ensuring Trump delegates he won in the primaries would vote for
him on the floor.
Page was similarly removed from
the campaign when a Sept. 2016 news story appeared
alleging, falsely as it turned out, he was a Russian agent.
Ultimately, former Special Counsel
Robert Mueller found there was no Trump campaign conspiracy with Russia to hack the DNC and give the emails to Wikileaks. According to
Mueller’s final report to the
Attorney General, “the evidence was not sufficient to charge that any member of
the Trump Campaign conspired or coordinated with representatives of the Russian
government to interfere in the 2016 election.”
The report added, “In particular,
the Office did not find evidence likely to prove beyond a reasonable doubt that
Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page
acted as agents of the Russian government — or at its direction, control or
request — during the relevant time period.”
Manafort was brought up on
unrelated tax and bank fraud charges. Cohen has his own set of problems, but
being a Russian agent is not one of them. Per the Mueller report, “Cohen had
never traveled to Prague…” And so, he very well could not have been there meeting
with Russian intelligence officials. We knew that as early as Jan. 2017 when
Buzzfeed published the dossier and Cohen showed his passport saying he had
never been to the Czech Republic.
As for Page, he was never charged
with anything. A footnote nonetheless attempted to justify the issuance of the
FISA warrants against him, stating per Mueller, “On four occasions, the Foreign
Intelligence Surveillance Court (FISC) issued warrants based on a finding of
probable cause to believe that Page was an agent of a foreign power. 50 U.S.C.
§§ 1801(b), 1805(a)(2)(A). The FISC’s probable-cause finding was based on a
different (and lower) standard than the one governing the Office’s decision
whether to bring charges against Page, which is whether admissible evidence
would likely be sufficient to prove beyond a reasonable doubt that Page acted
as an agent of the Russian Federation during the period at issue. Cf United
States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) (explaining that probable
cause requires only ‘a fair probability,’ and not ‘certainty, or proof beyond a
reasonable doubt, or proof by a preponderance of the evidence’).”
Remarkably, it seems the Justice
Department knew there was no conspiracy with Russia as early as 2017 as was
revealed by Justice Department Inspector General Michael Horowitz, certainly by
the time Mueller was appointed, but who kept the shameful inquiry going for
another two years.
The FBI finally contacted former
British spy Christopher Steele’s sources and after the surveillance had already
been renewed once, in Jan. 2017. According to the inspector general report, once the main source that Steele used was contacted, “the
Primary Sub-source made statements during his/her January 2017 FBI interview
that were inconsistent with multiple sections of the Steele reports, including
some that were relied upon in the FISA applications. Among other things,
regarding the allegations attributed to Person 1, the Primary Sub-source’s
account of these communications, if true, was not consistent with and, in fact,
contradicted the allegations of a ‘well-developed conspiracy’…” Their case had
collapsed. But on and on it went. Why?
As Congress considers FISA
reauthorization, it must consider the only reasons we learn about any of this
is because classified information was revealed to the public, in almost every
case, via legal processes that were initiated by executive branch officials
including the Attorney General, the President.
There is the exceptional case of Buzzfeed which published the Steele dossier
in Jan. 2017, via First Amendment protected
journalism. Steele and the Democrats were so anxious to shop the Russiagate
story everywhere, they had distributed the dossier to major news outlets
throughout the country. It was a gift to the American people, insofar as it
would have required a declassification process to get at it.
Otherwise, all of these
disclosures were completed by the Trump administration acquiescing to
Congressional requests for information and Judicial Watch’s Freedom of
Information Act (FOIA) request.
For example, the Justice
Department Inspector General investigation by Michael Horowitz was only ever
undertaken “in response to requests from the Attorney General and Members of
Congress,” according to the March 28, 2018 statement issued by the Inspector
General.
The Mueller report itself was
ordered by the Attorney General and included its own declassification process.
Portions of the Mueller report remain heavily redacted.
Much the same for the
released transcripts of his phone calls between
former National Security Advisor Michael Flynn and Russian Ambassador Sergei
Kislyak on Dec. 23, 2016, Dec. 29, 2016 and Dec. 31, 2016 that showed Flynn engaging with Kislyak to
stop a dangerous escalation in U.S.-Russian relations from occurring during the
presidential transition of 2016 after the election were only ever revealed
“[i]n response to bipartisan requests regarding the LTG Michael Flynn (Retired)
transcripts” and were declassified by former President Donald Trump in 2020, according to the Director of National Intelligence’s office.
Flynn was similarly removed as
National Security Advisor after the calls were non-coincidentally leaked to the Washington
Post in Jan. 2017.
Yet more disclosures have been
derived from the appointment of Special Counsel John Durham by former Attorney
General William Barr. To the extent that we’re learning anything new from the
prosecution of Igor Danchenko — for example that Steele was offered $1 million by the FBI to corroborate his allegations that former President Donald Trump was a Russian agent — is from
court filings containing information that heretofore were classified.
In order to get this information
out there required a President first having been targeted by FISA and then being
so infuriated that he has sought to relentlessly expose the history of how the
law was abused to the public. The crown jewel of that effort was on the day
before he left office, former President Trump declassified a trove
of documents related to the Justice Department’s botched investigation of Trump
that falsely accused him and his 2016 presidential campaign of being Russian
agents.
In the memorandum, entitled, “Memorandum on Declassification of Certain Materials Related to
the FBI’s Crossfire Hurricane Investigation,” Trump
outlined how the materials were presented to him to be declassified: “At my
request, on December 30, 2020, the Department of Justice provided the White
House with a binder of materials related to the Federal Bureau of
Investigation’s Crossfire Hurricane investigation. Portions of the
documents in the binder have remained classified and have not been released to
the Congress or the public. I requested the documents so that a
declassification review could be performed and so I could determine to what
extent materials in the binder should be released in unclassified form. I
determined that the materials in that binder should be declassified to the
maximum extent possible.”
But not before the FBI complained
about the need for redactions, with Trump granting the redactions: “In
response, and as part of the iterative process of the declassification review,
under a cover letter dated January 17, 2021, the Federal Bureau of
Investigation noted its continuing objection to any further declassification of
the materials in the binder and also, on the basis of a review that included
Intelligence Community equities, identified the passages that it believed it
was most crucial to keep from public disclosure. I have determined to
accept the redactions proposed for continued classification by the FBI in that
January 17 submission.”
The Trump memorandum continued, “I
hereby declassify the remaining materials in the binder. This is my final
determination under the declassification review and I have directed the
Attorney General to implement the redactions proposed in the FBI’s January 17
submission and return to the White House an appropriately redacted copy.”
That redacted copy was never
returned to the White House as ordered. In May, former Trump administration
official Kash Patel said he witnessed the declassification himself in a phone interview with Breitbart.com, but that the documents remained unaltered and had retained their
classified markings: “The White House counsel failed to generate the paperwork
to change the classification markings, but that doesn’t mean the information
wasn’t declassified. I was there with President Trump when he said ‘We are
declassifying this information.’”
And the Biden Administration
Justice Department led by Attorney General Merrick Garland never complied with
the Trump memorandum either, Senate Judiciary Committee Ranking Member Chuck
Grassley (R-Iowa) and Sen. Ron Johnson (R-Wis.) revealed in a Feb. 15, 2022 letter
to Garland. It was a follow-up to an Oct. 2021 letter on the
same complaining about the lack of disclosure.
These appear to be the same
documents the FBI raided from Trump’s residence in Palm Beach, Fla.,
Mar-a-Lago, on Aug. 8. On Truth Social, on Aug. 12, Trump noted that “it was all declassified,” referring
to the documents seized.
Thanks to the disclosures of
political enemies of the state being investigated by a secret police, public
opinion of the FBI and the Justice Department, especially among Republicans, is
at an all-time low. And the more we learn, the lower that opinion will become.
FISA has become an instrument of
not merely political surveillance, but of one-party rule and even has been used
to push the U.S. closer to nuclear war with Russia, which we are now on the
apparent brink of. As for the surveillance in the U.S., it was clearly targeted
at Trump and Republicans, and is rotten to the core. Disclosure is what it
fears the most because that is the only way to make it stop.
And disclosure is what Congress
should demand of the declassified Russiagate papers, which it should absolutely
subpoena, so that it can conduct public oversight of this system’s abuses, especially
should Republicans reclaim majorities in the House and Senate. The American
people have a right to know just how much the Justice Department and the FBI
are interfering with our elections. Without these particular documents, it
might be impossible to ever reform this system, and without them, Congress
should reject reauthorization of the Foreign Intelligence Surveillance Act next
year.
Robert Romano is the Vice
President of Public Policy at Americans for Limited Government.
To view online: https://dailytorch.com/2022/10/no-fisa-reauthorization-without-trumps-declassified-russiagate-papers/
Cartoon: Driven To Drink
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Click here for a higher level resolution version.
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