The (mostly) unredacted Grassley/Graham referral is more damning of the DOJ than the Nunes memo

Ed wrote about the redacted version on Monday but last night a new version appeared, with all previously blacked-out parts removed with the FBI’s approval except for those few bearing on national security.

If I were Trump I’d be mad as hell that the Nunes hype machine led me to put my political chips on his work product instead of this more detailed, and convincing, version of events from Senate Judiciary Committee members Chuck Grassley and Lindsey Graham. The memo and the referral are complementary in most regards but it’s inevitable that voters wooed by the #ReleaseTheMemo buzz will focus on the Nunes document and neglect this one.

The key question in the Nunes memo was how much, exactly, did the FBI rely on the Steele dossier in its FISA application to surveil Carter Page. Did they treat the dossier as a lead, something that they needed to investigate themselves, or did they treat it as evidence, something to be laid in front of the Court as credible information in and of itself that probable cause existed to believe Page was a foreign agent? There’s nothing wrong with the cops following a lead to build their own case, even if the source it comes from has a bias. But gaining a warrant based largely on that source’s work product? Surely the Fourth Amendment demands more than that.

The Nunes memo was cagey about how heavily the dossier factored into the FISA application. Grassley/Graham is less cagey. Answer: Heavily.

What does “heavily” mean, exactly? Apparently, it means that “the bulk of the application” against Page was dossier material:

“The application appears to contain no additional information corroborating the dossier allegations against Mr. Page.” In other words, they seem to have treated the dossier as evidence, not as a lead. That’s big news.

Also big news is the core allegation of the document, that Christopher Steele lied to someone about whether he was quietly whispering to the media in the fall of 2016 about what his sources were telling him. He told the FBI that he wasn’t in direct contact with any media, but in 2017 he admitted to a London court that he had been in contact with the press. Did he lie to the court or did he lie to the FBI? If, as James Comey once told Congress, the FBI felt comfortable relying on Steele’s information because he’d proved to be a credible source in the past, how can they continue to claim that the original FISA application was proper now that they know that he wasn’t so credible? He was a liar!

The FBI would counter, I assume, that there was no deliberate misconduct on their part. They were misled by Steele, and once they found out in late 2016 that he was in fact chattering to the media about the dossier, they ended their relationship with him. They got burned and they booted Steele because of it. Which is nice, but (a) that doesn’t solve the problem that the original FISA application against Page evidently relied “heavily” on information passed from a not-very-credible foreign agent and (b) that doesn’t explain why the Bureau allegedly failed to tell the FISA Court in later applications to renew their surveillance of Page that Steele’s info maybe hadn’t been so credible. Quote:

Allegedly Bruce Ohr later warned the FBI that Steele was “desperate” not to see Trump elected, a fact that also bears on his credibility and the credibility of the information in the dossier but which somehow didn’t make it into any of those surveillance renewal applications either. And Grassley and Graham make another good point about Steele’s chattering to the press while his investigation was still ongoing: Once bad actors were aware that he was digging for dirt on Trump, they could have sought him out and fed him any amount of BS in hopes of it trickling through to the FBI and deepening the official suspicion surrounding Team Trump. That’s how Clinton cronies — maybe even Sid Blumenthal — got involved in this clusterfark. Because Steele was supposedly willing to accept even unsolicited tips about Trump, the Clinton team may have fed him rumors to help fill a dossier for which their boss was paying. If the grimmest version of the Grassley/Graham scenario is true, that’s the caliber of information that was leaking into the FBI application to secure a federal surveillance warrant against Carter Page.

Still, the referral doesn’t completely support the Nunes memo. One of the sticking points in the memo, remember, was whether the FBI disclosed that the dossier material was the product of oppo research. The memo strongly implied that they hadn’t but the reality appears to have been more complicated. As Nunes himself later admitted, the Bureau apparently did disclose in a footnote that the material was paid political research. It just didn’t mention who, precisely, had paid for it. The Grassley/Graham referral corroborates that:

So they did tell the FISA Court that the material was paid for, and of course the Court was free to demand more information about that if it thought it was relevant. Apparently the judge didn’t. Which makes me wonder if Julian Sanchez is right, that the Grassley/Graham document is more an indictment of the low bar set by the FISA Court in granting surveillance than it is an indictment of FBI misconduct. The Nunes memo tries to make the case that the FBI behaved improperly with respect to the original FISA application by relying on a non-credible source in Steele, but they apparently didn’t know at the time that Steele wasn’t being straight with them about not talking to the press. They *did* know later and failed to tell the court, something that smells much more like misconduct than being initially duped by Steele was. It’s the Court’s fault for not demanding something thicker than the dossier as grounds for the original warrant against Page, I’d say, more so than it’s the FBI’s.

But Sanchez makes another good point. If there was FBI misconduct on the applications to renew surveillance of Page, the Grassley/Graham document is surprisingly taciturn about it. If those renewals were ill-gotten, based on little more than Chris Steele’s innuendo, this referral would have been an obvious moment to say so. But it doesn’t say so. Which raises the question, did the original surveillance on Page produce enough hard evidence of his behavior as a foreign agent to justify each renewal even if Steele’s information were excluded? You can’t justify a search warrant that was obtained via FBI misconduct with evidence discovered after the fact, of course, but as I say, Grassley/Graham’s account of the original warrant is less an argument that the FBI engaged in misconduct than that the FISA Court has a pitifully low standard for granting warrants to begin with. Without realizing at first that Steele had lied to them, the FBI may have sincerely believed that the info from the dossier was enough to qualify as probable cause. Annnnnnd the FISA Court apparently agreed with them. That’s not misconduct, it’s just a garbage standard to satisfy the Fourth Amendment.

Anyway. It’d still be reeeeeally nice to have that original FISA application available for public scrutiny so that we could weigh for ourselves if Grassley and Graham are right that it relied “heavily” on the dossier. (It’d be nice to have the renewal applications too, to see if they also relied heavily on Steele’s credibility even after the FBI knew that he was a liar.) And it’d also be reeeeeally nice if everyone kept a Gowdy-esque rather than Trump-esque perspective on where this episode fits in the Grand Russiagate Conspiracy:

Here’s a PDF of the Grassley/Graham referral for you to read for yourself. And here’s Gowdy on Fox last night all but confirming that Blumenthal, a man known as “Sid Vicious” for his ruthlessness in attacking Clinton enemies, was part of the pipeline of information to Steele.