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We Finally Learn Something From The Sussmann Trial
The trial of former top Clinton and DNC lawyer, Michael Sussmann, began on Monday. I haven’t been attempting to cover it, for three reasons:
Better qualified lawyers are giving it blow by blow coverage, which I don’t have time to do even if I were as qualified; and
For the most part there’s no real news coming out of the trial, due mainly to the very limited scope of the indictment (false statements to the FBI).
I’ll expand on the second reason.
What we’re seeing in the testimony so far simply confirms what every intelligent person has known all along. The lawyers are excited because Marc Elias—ueber Dem election lawyer—is finally on the stand testifying under oath. For all his dodging, he admitted under oath that, in effect, the whole Russia Hoax was a Clinton op and was coordinated at the highest levels of the Clinton organization. Fine, but did anyone doubt that? Of course not. The practical effect of that and similar testimony—if any—remains to be seen.
As for Sussmann, he basically doesn’t deny the facts contained in Durhams charge. Sussmann’s defense amounts to Hillary’s Libya defense—Sure I lied, but what does it matter? It may or may not work, but it’s not the kind of defense or prosecution that’s conducive to bombshell revelations. It might be very different if Sussmann were the innocent victim of a politically motivated government setup but, really, who believes that?
However, there has been a revelation, and one which bears upon the possibility that John Solomon raised—that Durham may be contemplating charges against former top FBI officials and, possibly, DoJ officials. The news is covered by Hans Mahncke and Stephen McIntyre:
What this comes down to is what I harped on at the original blog for many months—in the final analysis the big issue is predication: Did the FBI have articulable “predication” to open a full investigation (Crossfire Hurricane) on the Trump campaign (or an entity in fact thereof), and did that predication support the multiple FISA applications against Carter Page? The predication required to open a full investigation in national security matters (for our purposes here) “specific and articulable facts that give reason to believe” that the proposed targets of the investigation are agents of a foreign power (Russia, in this case). To obtain a FISA on a US person there is a further requirement—probable cause to believe that the subject or target is engaged in “clandestine intelligence activity” that involves a criminal violation of US law. As I maintained at great length, there never was any such predication. A further aspect of what I had in mind is that I believed that Durham would be looking at a big picture conspiracy indictment, not just nickel - dime single count false statement indictments.
Solomon maintains that Durham’s grand jury is still busily looking at these issues. The difficulty isn’t in showing that there was no predication, it’s to convince a jury that the former FBI officials knowingly—as opposed to stupidly—abused their authority to investigate national security matters by taking the steps they did (opening a full investigation, submitting fraudulent FISA applications. With that caveat in mind, it appears that the grand jury has been focusing on the FISA applications that were submitted after the FBI had been put on notice that Chris Steele’s “source,” Igor Danchenko, was utterly unreliable. For the FBI to have proceeded with the investigation—and even more so, the FISA—after Danchenko was exposed certainly tips the scales toward knowing abuse rather than mere stupidity.
This is where Mahncke’s and McIntyre’s discovery comes in. The notes that Durham gave to Sussmann’s team in the course of pretrial discovery bear directly on this issue of predication.
In a surprising move, Sussmann’s defense team last week disclosed three sets of handwritten Department of Justice (DOJ) notes of a March 6, 2017 meeting between high-ranking DOJ and FBI officials. Durham gave the notes written by DOJ officials Tashina Gauhar, Mary McCord, and Scott Schools to Sussmann’s team as part of Durham’s discovery obligations.
March 6, 2017, puts the meeting past the date by which the FBI was conclusively on notice that the Steele “dossier” and its supposed source, Danchenko, were utterly insufficient as predication for any official investigative actions.
In fact, the notes are the very first documents to have been released to the public that show what the FBI was telling the DOJ about the predication and status of the FBI’s Crossfire Hurricane investigation only two weeks before FBI Director James Comey’s shock announcement to the House Intelligence Committee on March 20, 2017, that the Trump campaign was being investigated by the FBI for ties to the Kremlin. It was Comey’s announcement that ultimately led to the appointment of Mueller.
In the past I’ve made a very big deal of the fact that the Team Mueller witchhunt is nothing but a continuation of Crossfire Hurricane, by the very terms of Rod Rosenstein’s authorizing memo. As such, the Mueller witchhunt in effect piggy backed on the predication of Crossfire Hurricane—if Crossfire Hurricane lacked predication then, ipso facto, the Mueller witchhunt should never have been authorized. At the same time, I made a big deal about the fact that Rosenstein had a serious duty to probe the FBI’s presentation of its predication, to be sure that the appointment of a SC was justified. Because of the extraordinary nature of what the FBI was up to Rosenstein had the obligation and the justification to demand full disclosure from the FBI before taking major steps. As for Andy McCabe’s claims of obstruction of justice by Trump for firing Comey, that, too, piggybacked on the predication—or lack thereof—for Crossfire Hurricane.
The DOJ had a legal responsibility to supervise the FBI’s Crossfire Hurricane investigation, which, as a “sensitive matter,” placed special oversight and due diligence obligations on the DOJ and additional reporting and due diligence obligations on the FBI. The March 6 meeting was a key milestone in those due diligence obligations.
The FBI was represented at the meeting by three of its top officials: Deputy Director Andy McCabe, Counterintelligence Executive Assistant Director Bill Priestap, and Counterintelligence Deputy Assistant Director Peter Strzok. The DOJ was also represented by top-level officials, led by Acting Attorney General Dana Boente. Boente was taking the place of Attorney General Jeff Sessions, who had recused himself only four days previously.
The notes reveal a pattern of repeated lies and omissions by FBI leadership to DOJ officials that concealed the dramatic deterioration of the predicate for the Crossfire Hurricane investigation. As the predication deteriorated, so too was the purported justification for Comey’s public reveal of the Crossfire Hurricane investigation.
What “deterioration” really means is “confirmation” that the supposed predication for Crossfire Hurricane was, in fact, bogus. The real question, of course, is whether the FBI was initially deceived but acted in good faith in assuming the nonsense they offered up as predication was true. In fact, we know that the FBI was unable to verify essentially anything that was used as predication. Most recently we’ve learned that the claim that Carter Page met with top Kremlin officials was fact checked at the time by the WaPo through it’s sources in Moscow—and was laughed off as pure fantasy. Over to you, FBI.
Mahncke and McIntyre review much of the background information that’s been out there. I won’t repeat that here. What I want to focus on are just two points that they make. The first is that, judging from the notes, it appears that the FBI repeatedly claimed that the Steele material was “crown” material, i.e., that it had been obtained from MI6 sources—weeks after they knew for certain sure that it was Clinton campaign hoax material:
FBI leadership also pushed the narrative on their DOJ counterparts that the dossier was “CROWN reporting,” implying that the dossier was an official United Kingdom intelligence product when it was actually made-up stories and gossip and paid for by the Clinton campaign – a fact the FBI knew from their Danchenko interview.
The notes cite “CROWN reporting” in connection with collusion allegations on at least two occasions. In Strzok’s exposition of the status of Page’s case, the notes indicate that Strzok referred to “Crown source reporting” as a key element in the Page FISA warrant. This was already known from unredacted portions of the FISA applications that were publicly disclosed in 2020. However, what was not known was that the FBI also lied internally about these facts to their DOJ supervisors.
Similarly, the March 6 notes indicate that, in connection with the status of the Manafort case, Strzok had reported that, based on “CROWN reporting,” the FBI had “looked at [the Republican] convention” and allegations that the Trump campaign had caused the convention to “soften stance on Crimea and NATO” in exchange for “Russian energy stocks.”
In fact, there is no reference to allegations about Crimea or NATO in Steele’s dossier. Strzok attributed these false accusations to “CROWN reporting,” presumably to lend weight to them with his DOJ superiors.
With respect to “Russian energy stocks,” the dossier includes a false reference to Page receiving a brokerage fee for the sale of a Russian energy company but this allegation is not related to the convention but to the lifting of sanctions. Again, Strzok falsely portrayed this as having something to do with the Republican Party’s convention.
Of course, this raises the interesting question of the full extent of MI6 and GCHQ involvement in the Russia Hoax. We know that Steele consulted on his activities with “former” MI6 director Richard Dearlove, and possibly other UK intel officials. The idea that Steele’s activities, hobnobbing with the American Deep State in the context of a presidential elections, would be of no particular interest to the UK doesn’t pass the laugh test. I suggest that the use of the “crown material” narrative may also have been intended not only to bolster the credibility of the predication but also to deflect DoJ from probing too deeply into sources. Needless to say, there is no indication that the FBI mentioned Igor Danchenko to their DoJ counterparts.
The second matter has to do with the Carter Page FISA:
The March 6 notes also reveal that FBI leadership told DOJ officials that the Page FISA application had been “fruitful” even though it had turned up nothing of significance. Page was never charged with, or even accused of, any offense and is now suing the DOJ for damages.
This revelation is actually more important than Mahncke and McIntyre may realize—it’s another point that I’ve made a big deal about. Bear in mind, this meeting took place in the context of impending renewals of the original FISA, which was approved just before the election. To obtain a renewal of a FISA it’s not sufficient for the FBI to simply make a request: Please renew this FISA. The FBI is required to certify that the FISA has been productive or “fruitful”, i.e., that it is producing useful information, information that furthers the investigation. The bare statement is also insufficient. The FBI should have to provide examples of such productivity—or provide some explanation for the current lack of productivity as well as reasons to believe that a renewal will lead to productivity.
As Mahncke and McIntyre correctly note, in actual fact the FISA “turned up nothing of significance.” A perusal of the renewal applications will confirm that assessment—the original FISA never should have been renewed on that basis alone. That, by the way, is on the FISC as well. Therefore, this misrepresentation (lie) to DoJ at the March 6 meeting was a serious matter. This is real news.
What does all this mean? I’ll jump to the concluding portion of the article:
While the notes were only publicly released last week, they have been available to Barr, Durham and the DOJ for much longer. Yet no action was taken.
Crucially, public release of the notes came after the five-year statute of limitations had lapsed in March of this year. The question is why the DOJ — and Durham in particular — gave the FBI a free pass. The uncomfortable answer may be that, as has been suspected for a while, Durham’s authority is effectively limited to private actors such as Sussmann and Danchenko and does not extend to public officials such as McCabe and Strzok.
That’s one explanation. Another could be—and having been burned in the past for presuming Bluto Barr’s integrity, I offer no guarantees—that John Solomon is correct and that Durham is working on that big conspiracy case.
I’ll conclude with some general commentary by a savvy observer:
Ouch! Rule of law?
While the FBI is favorite target of cynics, I would caution that if the fix is in, the FBI management may actually be the lowest figures on the totem pole of the overall Russia Hoax conspiracy. Far more powerful players may be being shielded.