The Democrats on the House Permanent Select Committee on Intelligence (HPSCI) finally dropped their Foreign Intelligence Surveillance Act abuse rebuttal memo Saturday afternoon, and the reaction is murky.
If you had your money on a comprehensive, point-by-point refutation of the “scurrilous allegations” of evidentiary malfeasance laid out in the majority (Nunes) memo, you’re going to need to cut a check. If your bet was on the construction and destruction of straw-men unassociated with the proceedings, and confirmation the use of raw, unevaluated intelligence to argue probable cause that an American citizen “knowingly acted as an agent of a foreign power,” you can proceed to the cashier window to redeem your ticket.
Some background. The HPSCI majority memo (the Nunes memo), which was released to the public on February 2, contained a number of specific allegations of inappropriate conduct by Federal Bureau of Investigation and Department of Justice officials seeking the approval of the FISA court (FISC) to monitor the communications of former Trump campaign advisor Carter Page. These allegations included the introduction into evidence of unconfirmed, uncorroborated sections of the infamous Christopher Steele dossier; the omission of material context in vouching for the reliability of their source (Steele); and the deliberate obfuscation of the fact that the Hillary Clinton campaign and Democratic National Committee paid for the dossier.
The Democrat HPSCI minority, led by Rep. Adam Schiff, fought the release of the Nunes memo on the grounds that it would recklessly expose sources and methods and, according to Schiff, erode public confidence in the FBI’s ability to protect sources to the extent that releasing the memo might enable another Oklahoma City bombing. Schiff and his colleagues composed a rebuttal, and assured us that it would effectively “correct the record” on the Nunes memo—particularly on the reliability of the evidence presented to the FISC, and the Nunes contention that the judge wasn’t fully apprised of the “partisan, political” provenance of the funding behind the dossier.
None of this came to pass with the release of the Schiff memo.
What Actually Happened Inside That Counter-Memo
A close read of the Schiff memo reveals the incredulity of the Nunes memo claim that the Steele dossier initiated the FBI investigation into Trump associates’ engagement with Russians. A close read of the Nunes memo reveals that it makes no such claim. In fact, the Nunes memo clearly states the investigation was initiated after the FBI received information concerning suspicious interactions between Trump campaign advisor George Papadopoulos and a sketchy professor with alleged ties to Russian officials.
It’s written very clearly in the memo, in plain English. Yet the Schiff memo works hard to undermine that strawman, and effectively confirms the Nunes memo description of the event that triggered the investigation.
Schiff then addresses the issue of source and evidence credibility. This is key to the Nunes memo allegations and to confidence in the FBI and DOJ officials charged with protecting every citizen’s Fourth Amendment rights, even in the course of seeking legal access to citizens’ most private communications.
In lieu of providing a single word of confirmation that any of the Page-related dossier information had been corroborated or validated prior to providing it to the court, the Schiff memo constructs a Page avatar whose past associations and contact with Russian spies, Kremlin officials, shady businessmen, and FBI agents represent an insurmountable trail of suspicion that can only be assumed to be criminally conspiratorial, and likely treasonous.
They do this by noting Page’s 2013-2014 recruitment attempt by Russian spies in New York City, whose approaches inspired the FBI to alert Page and warn him away. Those spies were eventually arrested and convicted of espionage offenses after an investigation aided by information Page willingly provided. They further highlight Page’s three-year residency working for Merrill Lynch in Moscow, separate trips to Russia in July and December of 2016, and numerous interviews with the FBI regarding, presumably, his interactions with Russians suspected of nefarious intentions.
Building a Tower of Suspicion Around Carter Page
All of this builds a tower of suspicion around Page, the idiosyncratic Naval Academy graduate whose quirky and paranoid behavior on nationally televised interviews has inspired the derisive head-shaking of dozens of talking heads. They chortle at the naiveté of this man’s eagerness to repeatedly throw himself into the lion’s den of “The Situation Room” or “All In with Chris Hayes.” They wonder what could possibly compel this man to subject himself to the open mocking of his declarations of innocence, again and again? The Schiff document describes an FBI/DOJ presentation of evidence that appears to draw from these instincts of suspicion and disbelief yet, significantly, offer no proof.
But they must offer proof, as Andrew McCarthy points out in the latest of his series of analytic National Review articles devoted to making sense of the FISA proceedings. McCarthy notes that: “(B)ecause Page was an American citizen, FISA law required that the FBI and the DOJ show not only that he was acting as an agent of a foreign power (Russia), but also that his ‘clandestine’ activities on behalf of Russia were a likely violation of federal criminal law. (See FISA, Section 1801(b)(2)(A) through (E), Title 50, U.S. Code.) It is the Steele dossier that alleges Page was engaged in arguably criminal activity. The Democrats point to nothing else that does.”
The Schiff memo offers that proof, the crucial passage of the Steele dossier undeniably used as the crux of their “criminal activity” contention. They present it as follows: “It is in this specific sub-section of the applications that DOJ refers to Steele’s reporting on Page and his alleged coordination with Russian officials. Steele’s information about Page was consistent with the FBI’s assessment of Russian intelligence efforts to recruit him and his connections to Russian persons of interest.”
“In particular, Steele’s sources reported that Page met separately while in Russia with Igor Sechin, a close associate of Vladimir Putin and executive chairman of Rosneft, Russia’s state-owned oil company, and Igor Divyekin, a senior Kremlin official. Sechin allegedly discussed the prospect of future U.S.-Russia energy cooperation and ‘an associated move to lift Ukraine-related western sanctions against Russia.’ Divyekin allegedly disclosed to Page that the Kremlin possessed compromising information on Clinton (‘kompromat’) and noted ‘the possibility of its being released to Candidate #l’s campaign.’ (Note: ‘Candidate #1’ refers to candidate Trump.) This closely tracks what other Russian contacts were informing another Trump foreign policy advisor, George Papadopoulos.”
The problem with this crucial passage is that it contains a fatal flaw, in that it is almost-certainly wrong. Page has testified repeatedly, under oath, that he had no such contact, meetings, or conversations with either Sechin or Divyekin. He did so both to the members of the HPSCI committee and during his numerous interviews with the FBI. He has further testified that he has never met Sechin in his life. He even issued a written denial in a letter he sent to former FBI director James Comey in September 2016, wherein he offered to meet with the FBI to resolve the issue.
If Democrats Are Right, Page Should Be Arrested
The Democrats show little faith in the disputed, yet legally essential, evidence of these “meetings.” In fact, they include in their memo this intriguing passage: “This information contradicts Page’s November 2, 2017 testimony to the Committee, in which he initially denied any such meetings and then was forced to admit speaking with (Arkady) Dvorkovich and meeting with Rosneft’s Sechin-tied investor relations chief Andrey Baranov.”
That’s one way of saying it. Another way to say it would be: “Carter Page’s testimony contradicts the unverified, third-hand hearsay information contained in the dossier, as he expressly denied meeting either of those officials. As to contacts with Russians unrelated to information contained in the Steele dossier, Page confirmed that he spoke with Arkady Dvorkovich and met with Andrey Baranov. “
But we don’t have to take Page’s word for it, nor should we. If there is evidence to the contrary, Page should quite rightly be arrested and charged with, at a minimum, lying to the HPSCI and to the FBI. Were there evidence or corroboration to confirm illicit engagements with Sechin and Divyekin, as reported in the dossier and declared to be credible by the FBI/DOJ officials testifying to the FISC judge, Page is dead to rights.
Yet Page walks free. The absence of evidence sufficient to arrest and charge Page with lying about his alleged treasonous and conspiratorial activities, coupled with the critical role those very allegations played in convincing a judge to approve a FISA warrant targeting his communications, leaves Citizen Page in a rather unique state of judicial and political limbo.
Yet for Page to regain his battered reputation and get on with his life, the FBI, DOJ, and HPSCI Democrats will have to admit that the information provided to the court regarding his activities in Russia was wrong. In doing so, they would have to further admit that the rest of the information in the 35-page Steele dossier was tarnished, and inadmissible. That’s not going to happen.
We Refuted Something Republicans Never Said
The Schiff memo confirmed that the Steele dossier was used to obtain the warrant. It added nothing to suggest that the dossier information had been corroborated. The Democrats aren’t talking about this part of their memo on cable news shows, because they would like you to forget it.
What they are talking about—a lot—is their refutation of a phantom Republican claim that the dossier triggered the FBI investigation. The Republicans made no such claim, but Schiff and his colleagues are nonetheless eager to address this straw man at every opportunity. Why? Because their focus isn’t on Page’s civil rights, or even on his possible guilt. They don’t seem to have much of an opinion on these either way.
Their focus is on the future, and the Democrats believe their immediate future depends on a positive (for them) outcome of the Robert Mueller investigation into Russian influence on the election. They fear the slightest acquiescence to doubt about the validity of the Steele dossier will somehow impact that investigation, and their future. Page is just some guy in the way.
In advance of the release of the Schiff memo, I wrote here that the only question it needed to answer was whether the Steele dossier information used against Page had been corroborated and validated prior to its use in the FISA court. That question was answered, albeit not intentionally. The information was not corroborated or validated. Although Schiff and his colleagues will do everything they can to convince you otherwise, it’s the only thing that matters.