The FBI as the Titanic

Jonathan Turley responds as follows to Michael Horowitz’s finding that the Justice Department had enough evidence to meet the low threshold for beginning its investigation of the Trump campaign:

This is akin to reviewing the Titanic and saying that the captain was not unreasonable in starting the voyage. The question is what occurred when the icebergs began appearing. Horowitz says that investigative icebergs appeared rather early on, and the Justice Department not only failed to report that to the Foreign Intelligence Surveillance Act court but removed evidence that its investigation was on a collision course with the facts.

The analogy to the Titanic is clever. However, I’m sure that its captain had much better reason for starting his voyage than the Obama FBI did for undertaking its. Indeed, it may become clear from the work of John Durham that the FBI had insufficient reason, even judged by low “articulable facts” standard.

Turley is right, however, in saying that the most important issue is whether the Justice Department engaged in egregious misconduct as it carried out the investigation. If so, the other important issue is why it so egregiously misbehaved.

Turley lays out the misconduct Horowitz found:

From the outset, the Justice Department failed to interview several key individuals or vet critical information and sources in the Steele dossier. Justice Department officials insisted to Horowitz that they choose not to interview campaign officials because they were unsure if the campaign was compromised and did not want to tip off the Russians. However, the inspector general report says the Russians were directly told about the allegations repeatedly by then CIA Director John Brennan and, ultimately, President Obama. So the Russians were informed, but no one contacted the Trump campaign so as not to inform the Russians?

Meanwhile, the allegations quickly fell apart. Horowitz details how all of the evidence proved exculpatory of any collusion or conspiracy with the Russians.

Even worse, another agency that appears to be the CIA told the FBI that [Carter] Page was actually working for the agency in Russia as an “operational contact” gathering intelligence. The FBI was told this repeatedly, yet it never reported it to the FISA court approving the secret investigation of Page. His claim to have worked with the federal government was widely dismissed.

Worse yet, Horowitz found that investigators and the Justice Department concluded there was no probable cause on Page to support its FISA investigation. That is when there was an intervention from the top of the FBI, ordering investigators to look at the Steele dossier funded by the Democratic National Committee and the Clinton campaign instead.

Who told investigators to turn to the dossier? Former FBI Deputy Director Andrew McCabe. He was fired over his conduct in the investigation after earlier internal investigations.

There’s more:

Horowitz also finds no sharing of information with FISA judges that undermined the credibility of the dossier or Christopher Steele himself. Surprisingly little effort was made to fully investigate the dossier when McCabe directed investigators to it, yet investigators soon learned that critical facts reported to the FISA court were false. FISA judges were told that a Yahoo News article was an independent corroboration of the Steele dossier, but Horowitz confirms that Steele was the source of that article. Therefore, Steele was used to corroborate Steele on allegations that were later deemed unfounded. . . .

The source relied on by Steele was presented as conveying damaging information on Trump. When this source was interviewed, he said he had no direct information and was conveying bar talk. He denied telling other details to Steele. This was all known to the Justice Department, but it still asked for warrant renewals from the FISA court without correcting the record or revealing exculpatory information discovered by investigators. That included the failure to tell the court that Page was working with the CIA. Finally, Horowitz found that an FBI lawyer doctored a critical email to hide the fact that Page was really working for us and not the Russians.

In litigation over whether the individuals who engaged in this course of conduct did so out of bias, the mere recitation of Horowitz’s facts would present a prima facie case that bias against the Trump campaign was at play. The burden would then shift to anyone claiming the absence of bias to explain what, if not bias, explains the behavior.

Clearly, the explanation can’t be simple incompetence. Withholding information from the FISA court and, indeed, making false statements to that body, isn’t incompetence. It’s lying and deceit.

A better explanation might be general overzealousness, as opposed to overzealousness motivated by a desire to derail Donald Trump, his campaign, and his presidency. General overzealousness is a common explanation for prosecutorial misconduct. Thus, this explanation passes the straight face test.

However, it fails to persuade in any instance where a highly improper act, or failure to act, was committed by a person who displayed animosity towards Trump or expressed fear of a Trump presidency. Except in unusual cases, egregious misconduct and direct evidence of bias or animosity towards the victim add up to the conclusion that the misconduct was motivated by bias or animosity.

Whatever his virtues, Michael Horowitz has no special expertise in exploring souls. Thus, while there is good reason to accept his findings as to what happened, there is no good reason to accept his conclusions as to motive — and certainly not when his conclusions are at odds with common sense.