If James Comey, who signed the FISA application, couldn't figure out who funded the dossier, how could a judge?

There weren’t many surprises in the newly released and redacted Carter Page surveillance warrant application, as much of it has been in the public domain for many months now. Nor should anyone be particularly surprised at the polarized response. It’s simply a sign of the times that people are less-inclined to apply a reasoned and balanced approach to issues that involve Russia and, even tangentially, President Trump, regardless of which ideological corner one calls home.

Perhaps the most hotly contested topic of conversation after the release was the notion, first posed in a memo produced by Republicans on the House Permanent Select Committee on Intelligence (HPSCI) in January 2018 (the “Nunes memo”) that the Federal Bureau of Investigation and U.S. Department of Justice failed to properly represent to the court the identity of the individuals and/or organizations responsible for commissioning the Steele dossier.

In the Nunes memo, the HPSCI Republicans noted the FBI’s vague characterization of the paymasters’ provenance. They argued the FBI should have more clearly represented to the Foreign Intelligence Surveillance Act court the fact that the ultimate client of Fusion GPS and Christopher Steele was the Hillary Clinton campaign and the Democratic National Committee.

The implications of withholding such information aren’t hard to appreciate, and don’t require a particularly nuanced understanding of evidentiary procedures to cause concern. While both sides disagree on whether the description in the FISA application was sufficient to properly apprise the court of the political agenda of the entity that commissioned the opposition research, their disagreement seems to be a matter of scale.

Democrats and the majority of the media aren’t arguing that no citation was necessary. To the contrary, their argument seems to be that a citation in the FISA request was sufficient to alert the judge to Clinton and the DNC’s hidden hands. They say it would be self-evident to any judge, upon reading the citation embedded below, that Clinton and the DNC were behind the information provided by “Source #1.”

At the very least, they argue, the judge would be appropriately apprised of the political genesis of the opposition research: telling the judge Clinton’s campaign paid for it wouldn’t better attune the judge to the notion that political opposition research is inevitably compiled at the request and to the potential benefit of, well, political opposition.

As with many arguments, practical tests can be applied to both sides to discern the truth. In this particular case, a good way to test whether the citation is sufficient would be a simple experiment.

Let’s Conduct that Thought Experiment

First, recall that Fusion GPS was initially commissioned by the right-wing Washington Free Beacon through January 2017 to conduct opposition research on Trump, apparently in support of a Republican primary competitor (or several). The Clinton campaign and DNC signed a separate agreement with the law firm.

Now, for the experiment. Clear your head of any thoughts involving the Clinton/DNC involvement in the dossier, and imagine that the Steele dossier was developed under the Free Beacon contract and the Clinton campaign never got involved.

Now read the citation again. Does it still make sense after substituting a Republican-owned, conservative newspaper for Hillary Clinton and the DNC? Now use your imagination and substitute anybody or any organization you want for Hillary Clinton and the DNC: Joe Biden; The Washington Post; Fox News; the king of Jordan; Donald Trump Jr.; Renaldo; Vladimir Putin.

Can they all fit into that citation? If any of the individuals or entities listed above were indeed the ultimate funders of the research, would a single word of that citation have to be changed to represent to the court what most on the Left are characterizing as an appropriate level of specificity about the commissioning party to the FISA judge?

No, not a word would have to be changed. Regardless of how frequently or loudly those who refuse to entertain the notion may deny it, the citation offered to the FISA judge was insufficient to alert the judge to the materially significant fact that the FBI was presenting derogatory information about one political candidate from an opposition research document commissioned and paid for by the opposing candidate.

Nothing in that citation suggests the judge would assume this to be the case. It could, quite literally, be just about anyone on earth who paid for that research, based on the FBI’s vague description.

James Comey’s Own Testimony Supports This Reading

You don’t have to take my word for it. Read this excerpt from Brett Baier’s interview of former FBI director James Comey on Fox News, April 26, 2018.

Baier: When did you learn that the DNC and Hillary Clinton campaign had funded Christopher Steele’s work? Comey: Yes, I still don’t know that for a fact. Baier: What do you mean? Comey: I’ve only seen it in the media. I never knew exactly which Democrats has funded – I knew it was funded first by Republicans – (Crosstalk) Baier: But that’s not true. Comey: I’m sorry? Baier: That’s not true that the dossier that Christopher Steele worked on was funded by Republicans. Comey: My understanding was his work started funded by – as oppo research funded by the Republicans. Baier: So Free Beacon and – said that they had Glen Simpson and Fusion GPS on account of a retainer but they did not fund the Christopher Steele memo or the dossier. That was initiated by Democrats. Comey: Ok, my understanding was the activity was begun that Steele was hired to look into was first funded by Republicans then picked up – the important thing was picked up by Democrats opposed to Donald Trump. Baier: So it that why – did you tell President Obama that the dossier was – who it was funded by? Comey: No, not to my recollection. Baier: Did you want to know who it was funded by? Comey: I wanted to know what I knew which was it was funded by people politically opposed to Donald Trump. Baier: Ok. Comey: Which particular opponents wasn’t that important to me. Baier: But when did you – So you, still, to this day, don’t know that it was funded by the DNC or the (inaudible)? Comey: I’ve read that in the media, but I don’t know for a fact and didn’t know, when I was at the FBI, which exact opponent of the president’s funded that.

Fascinating. Read that last line again. Comey says he didn’t know when he was at the FBI, and still doesn’t know, which opponent of the president’s funded the Steele dossier.

Comey signed the FISA application from which the citation embedded above was copied. His signature served as certification by the FBI that the information in the report was verified and submitted for purposes consistent with the law. He subsequently signed the next two FISA warrants on Page, all of which contained the same citation regarding the identity of the Fusion GPS/Steele clients.

If the director of the FBI can read that citation at least three times in the course of assessing the application for his personal certification and not come away from it assuming that Clinton’s campaign and the DNC were the ones who commissioned it, how on earth can anyone argue the judge would make that assumption?

Making Things Clearer Would Have Been Easy

If you agree that the judge wouldn’t necessarily make that assumption, but are still arguing that the citation was “legally sufficient to advise the judge of the political nature of the opposition research,” answer this question: What would keep the FBI from simply writing,“The U.S.-based law firm that hired the identified U.S. person to conduct research on Candidate #1 did so on behalf of Candidate #1’s opponent, Candidate #2”?

Would anyone object to using that language in the citation? If so, why? It would seem a rather precarious position to argue that the simple act of telling the judge the full truth in a FISA proceeding is unnecessary—that less than the truth is sufficient to satisfy one’s personal FISA hearing evidentiary standards.

People vacillate and hide the truth for the same reason people tell outright lies: they don’t want the truth to be known. What form those lies take are incidental to the intent, which is to withhold, conceal, misdirect, or mislead.

Why the FBI Chose Obscure Language Instead

There are a couple of possible reasons the FBI would choose the language they did, one of which is that they didn’t know it was paid for by the Clinton campaign and the DNC. That would be a remarkable and embarrassing admission, yet that’s the reason Comey suggested.

Rep. Devin Nunes was right: the FBI failed to adequately identify the source of funding behind the Steele information presented in the FISA application.

The other option is that the FBI didn’t want the court to know who actually paid for the dossier. Given the ease with which they could have accurately described the true fund source of the research, yet failed to do so, those appear to be the only two options available.

If you’re trying to discern whether Comey is telling the truth, consider this: Would Comey rather suffer a brief period of embarrassment, or acknowledge that he signed and certified a deliberately misleading FISA application that resulted in a year of government surveillance of Page?

Whichever the case, Comey told us he was fooled by his own FISA application, while the Left tells us the judge had everything he or she needed to rule on the warrant request. Accepting both of these positions at face value is counter-intuitive. If Comey would agree that it’s just as possible Media Matters for America paid for the research as it is Hillary Clinton, then it would follow that the judge didn’t have the information necessary to make an informed assessment of the sourcing.

Rep. Devin Nunes was right: the FBI failed to adequately identify the source of funding behind the Steele dossier information presented in the FISA application. The only question remaining is: Why?