OPINION:
Former Asst. US Attorney Andrew McCarthy has a thorough take down of Rep. Jerry Nadler’s (D-CA) rebuttal to the House Intelligence Committee’s FISA memo over at National Review. The thorough treatise breaks down and, frankly, destroy’s each and every one of Nadler’s arguments against his Republican colleagues and you really should read the entire thing here.
One part of the fisking deserves special attention as it addresses a narrative that appears to have been picked up by many in the media, and on Capitol Hill who appear to be a bit overzealous in their defense of the FBI’s use of the unverified collection of political opposition research known as the Russian dossier for a secret surveillance warrant against an American citizen.
Here’s an example of how high-profile critics of President Trump have defended the questionable tactics employed by Obama’s Justice Department in the waning days of the 2016 presidential election:
If the FISA applications failed to mention who funded Chris Steele’s research, perhaps they should have. Regardless, it would’ve been careless of law enforcement to have excluded such alarming national security information from such a trusted source and ally of the United States.
— Evan McMullin (@Evan_McMullin) February 2, 2018
Indeed, in Nadler’s rebuttal to the FISA memo, he waxes poetic about the credibility of Steele as a trusted intelligence community source. His second of four points made in his memo is headlined “Christopher Steele is a recognized expert on Russia and organized crime” and includes this:
ChristophermSteele is one of the world’s leading experts on Russian organized crime. His job was to uncover the facts. Many feared during the election that the Trump campaign had been compromised by the Russian government. Two guilty pleas and two indictments later, those fears seem well justified.
McCarthy points out the fatal, legal flaw in this argument:
Here’s the problem: Steele is not the source of the information. For purposes of the warrant application, he is the purveyor of information from other sources. The actual sources of the information are Steele’s informants — anonymous Russians providing accounts based on hearsay three- and four-times removed from people said to have observed the events alleged.
An example makes the point. Say I’m a prosecutor in a narcotics investigation. My DEA case agent is simply the best — many times rewarded by his agency and the Justice Department for his competence, diligence, and expert knowledge of how international drug cartels work. The agent brings me information that three of his sources have told him X is using a shipping container to import cocaine. I thus want to get a search warrant for the shipping container. When the court asks me what my probable cause is, I don’t get to say, “Gee, Judge, I have this fabulous investigative agent who’s got more performance awards than Tom Brady has touchdown passes. He tells me his informants are certain about the container.” If I try that, the judge — assuming he remains calm and doesn’t throw the warrant application in my face — either sends me back to law school or patiently explains that the issue is not the credibility of my investigative agent; it’s the credibility of my investigative agent’s informants.
Similarly, if the informants were shown in the application to be creditworthy, it would not matter that my case agent had been fired for dishonesty or incompetence.
This is the truly outrageous thing about the Steele dossier saga that I am surprised commentators don’t, or won’t, see. In the case of these FISA applications, the principal problem is not Steele himself but his information. We can never even get to the task of evaluating whether Steele’s anonymous, Russian, multiple-hearsay sources have some bias against Trump or Page. We don’t know who the sources are, and the FBI seems never to have corroborated them.
In other words, Steele could be Mother Teresa or Eliott Ness, it doesn’t matter. If his sources weren’t properly vetted, or for that matter even properly identified, they are garbage. And the intelligence they provide is worse than garbage, it is irrelevant in the context of obtaining a warrant to spy on an American citizen.
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