One of our most knowledgeable law enforcement readers writes to emphasize a point bearing on our coverage of the Trump Dossier. He adds valuable context to our commentary:
As a retired FBI Special Agent with over two decades of experience in counterintelligence, I’d like to make a point that Scott and Paul are surely aware of, but which it’s useful to keep at the front of your mind.
Scott regularly refers to the Trump dossier as the “Rosetta Stone” of the “muh Russia” narrative. That’s true, but it’s helpful to go one step further. The real importance of the Trump dossier from a criminal law standpoint lies in the use it was put to for official government purposes. To understand that we need to know whether the dossier was used to justify the initiation of Full Investigations (FIs), according to the relevant AG Guidelines for National Security investigations.
We can take it as given that such FIs were opened that broadly targeted the overall Trump political organization–campaign staffers, advisers, etc. We know this because we know that FISA orders were sought and (eventually) approved. We also know that the real target was Trump himself, since the initial FISA application in June or July 2016 specifically named Trump.
FISA coverage can only be used if a FI has been previously authorized. In this circumstance I believe (I’ll skip my reasoning) that the real goal of opening a FI was precisely to obtain FISA coverage. For that reason the likelihood is that the substantially same justification that was used to obtain an order from the FISC had already been used internally (at the FBI and DoJ) to justify opening a FI. How many FIs were opened relating to the overall Trump organization? Who were the subjects? What was the predication (and, especially, did that include the dossier)?
The full relevance of these considerations can be seen from Scott and Paul’s review of just how threadbare the dossier really was in terms of authentication. If it was used in applications to the FISC with the knowledge that it was “oppo research” and likely not credible, and if that knowledge was withheld from the FISC, I suspect we’re looking at the real possibility of criminal conduct. And bear in mind that such applications (for FISA coverage relating to a candidate for President or a President-elect) would have been approved only at the highest levels before submission to the FISC.
To put two names to that process: James Comey and Loretta Lynch. If they knowingly deceived the FISC–and that depends, as far as we can tell at this point, largely on how they may have used the “dossier”–they’re looking at serious criminal liability.
All of this explains the FBI and DoJ stonewalling. Comey and the rest are well aware of the implications for them. Bear in mind too that the stonewalling isn’t limited to document production–important as that may be. FBI and DoJ have been refusing to allow their personnel to testify to Congressional committees–that is, personnel below the top few officials.
Investigations of the magnitude we’re discussing necessarily include a fair number of people and the testimony of those other people would likely shed valuable light on the true nature of the process that was followed, who made the decisions, what was known about the credibility of information that was used to justify official actions, who really believed those justifications, the nature of coordination with other government agencies, etc. This is where the investigative rubber will hit the road.