DOJ Inspector General to look at FISA court applications (Update: Goodlatte responds)

This isn’t the investigation that some Republicans in the House and Senate wanted but it’s something. Today, Michael Horowitz, the Inspector General for the Department of Justice, announced he would be turning his attention to possible FISA court abuse. From Politico:

The Justice Department’s inspector general is investigating Republicans’ allegations that prosecutors and FBI agents misled a federal judge so they could track a Donald Trump campaign adviser with ties to Russia…

The IG announcement was prompted by allegations from House Intelligence Committee Chairman Devin Nunes (R-Calif.) and other Republicans that federal investigators omitted key information from their October 2016 application for the warrant to monitor Page. Nunes wrote in a memo made public last month that officials failed to disclose that a private intelligence dossier they used to make their case was financed in part by Democrats.

All of this relates to the application for surveillance of Carter Page which cryptically mentioned the source of the information might have been trying to discredit a presidential campaign. Here’s how Adam Schiff’s memo quoted the explanation to the court [emphasis in Schiff’s memo]:

a U.S.-based law firm had hired the identified U.S. Person to conduct research regarding Candidate #1’s [i.e., Trump’s] ties to Russia. (The identified U.S. Person and Source #1 have a longstanding business relationship.) The identified U.S. Person hired Source #1 to conduct this research. The identified U.S. Person never advised Source #1 as to the motivation behind the research into Candidate #1’s ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1’s campaign.

I’ve pulled that from this piece by Andrew McCarthy who writes that there is nothing very transparent about this at all. Why didn’t the application simply tell the court that Candidate #2 [Hillary] paid for the oppo research on Candidate #1? And why did the FBI speculate the motive when it knew the motive? Here’s McCarthy:

The dispute here is not about the failure to use the words “Hillary Clinton.” They could have referred to “Candidate #2.” To state that “Candidate #2” had commissioned Steele’s research would have been just as easy and every bit as appropriate as the DOJ’s reference to a “Candidate #1,” who might have “ties to Russia.” Had DOJ done the former, it would not have “unmasked” Hillary Clinton any more than Donald Trump was unmasked by DOJ’s description of him as “Candidate #1”; but it would have been being “transparent” with the FISA court. By omitting any reference to Clinton, the DOJ was being the opposite of transparent…

Schiff comically highlights this DOJ assertion as if it were his home run, when it is in fact damning: “The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1’s campaign.” This is the vague reference that Democrats and Trump critics laughably say was adequate disclosure of the dossier’s political motivation. But why would the FBI “speculate” that a political motive was “likely” involved when, in reality, the FBI well knew that a very specific political motive was precisely involved?

There was no reason for supposition here. If the FBI had transparently disclosed that the dossier was a product of the Clinton campaign — oh, sorry, didn’t mean to unmask; if the FBI had transparently disclosed that the dossier was a product of “Candidate #2’s” campaign — then the court would have been informed about the apodictic certainty that the people behind the dossier were trying to discredit the campaign of Candidate #2’s opponent. It is disingenuous to tell a judge that something is “likely” when, in fact, it is beyond any doubt.

The bottom line here is that there is a difference between a vague indication that maybe this was politically motivated (but we’re not sure) and a forthright statement, i.e. this was oppo research paid for by the opposing candidate. Here’s the statement released by the IG outlining what he plans to investigate:

The Office of the Inspector General (OIG) will initiate a review that will examine the Justice Department’s and the Federal Bureau of Investigation’s (FBI) compliance with legal requirements, and with applicable DOJ and FBI policies and procedures, in applications filed with the U.S. Foreign Intelligence Surveillance Court (FISC) relating to a certain U.S. person. As part of this examination, the OIG also will review information that was known to the DOJ and the FBI at the time the applications were filed from or about an alleged FBI confidential source. Additionally, the OIG will review the DOJ’s and FBI’s relationship and communications with the alleged source as they relate to the FISC applications.

Republicans in both the House and Senate have called for a second Special Counsel to be appointed to look into this. They have argued that IG Horowitz will not have the ability to subpoena people in other agencies or to question those who have left the DOJ. That means people like James Comey and Andrew McCabe would be beyond his reach. A letter sent to AG Sessions by Rep. Goodlatte and Rep. Gowdy earlier this month said in part:

Because the decisions of both former and current Department of Justice and FBI officials are at issue, we do not believe the Department of Justice is capable of investigating and evaluating these fact patterns in a fashion likely to garner public confidence. In addition, while we have confidence in the Inspector General for the Department of Justice, the DOJ IG does not have the authority to investigate other governmental entities or former employees of the Department, the Bureau, or other agencies.

I’m not seeing any response to this yet from Reps. Gowdy or Goodlatte. I’ll try to update this post if they issue a response anytime this evening.

Update: Here’s the response from Rep. Goodlatte, Chairman of the House Judiciary Committee:

“I welcome the announcement from the Inspector General’s office that it will investigate potential abuses of the Foreign Intelligence Surveillance Act and use of political opposition research to obtain a warrant to surveil a U.S. person. However, this is not a substitute for a Special Counsel to investigate this and other matters, including decisions made and not made by the Justice Department in 2016 and 2017, and evidence of bias by DOJ and FBI employees in charging decisions. For instance, the IG’s office does not have authority to compel witness interviews, including from past employees, so its investigation will be limited in scope in comparison to a Special Counsel investigation. The American people demand that the intelligence community, law enforcement, and the courts operate fairly and impartially, and a Special Counsel should be named expeditiously to determine whether these institutions lived up to their expected standards.”

Still no response from Rep. Gowdy, Rep. Scalise, or Rep. McCarthy.