Special Counsel John H. Durham's "Report on Matters Related to Intelligence Activities and Investigations Arising Out of the 2016 Presidential Campaigns" continues the practice of allowing government officials to escape accountability for their abuse of American citizens. In June 2017, the United States Department of Justice applied to the Foreign Intelligence Surveillance Act Court for the third renewal of a surveillance and search warrant on part-time Donald Trump campaign adviser Carter Page. The DoJ's application was based in part on the credibility of former British intelligence agent Christopher Steele. Steele produced a so-called "dossier," which was a 35-page collection of separate "Company Intelligence Reports."
By the time the DoJ applied in June 2017 for the warrant renewal to the FISA Court, Steele had made at least two significant admissions in a British court case in which he was a defendant. By at least April 26, 2017, the FBI and the DoJ knew that Steele was a defendant in this British court case. Both admissions significantly weakened Steele's credibility and made it impossible for the DoJ to satisfy the requirements for obtaining the warrant. However, the DoJ failed to tell the FISA Court about Steele's admissions, thereby causing the FISA Court to issue the renewal of the warrant. Former deputy United States attorney general Rod Rosenstein approved the June 2017 warrant application to continue spying on Page.
One admission was that at least part of his "dossier" was unverified. It is obvious why it was important for the FISA Court to know this fact, and equally obvious why it was wrong for the DoJ to fail to tell the court this fact. Additionally, if the government identifies a misstatement or omission of material fact in its application, the government is required to provide the FISA Court with the correct information and an explanation. Assistant attorney general John Demers submitted such a letter on July 12, 2018, to the FISA Court that failed to inform it that Steele admitted that at least part of his "dossier" was unverified and that the DoJ failed to include this fact in its June 2017 warrant application. DoJ inspector general Michael Horowitz's Report, released December 9, 2019, failed to inform the public about 1) Steele's admission being absent from the warrant application, and 2) the DoJ's failure in its subsequent letter to the FISA Court to inform the FISA Court about Steele's admission being absent from the June 2017 warrant application.
Another admission by Steele was that he disclosed some of his information to the press in September 2016. This was significant because the FBI said that Steele told it he did not disclose his information to the press in September 2016. Therefore, the DoJ knew that Steele lied to the FBI, but the DoJ did not tell this to the FISA Court. Additionally, in its warrant application, the DoJ made a false statement to the FISA Court about Steele's motivation for talking to the press. The DoJ told the court that Steele talked to the press only in October 2016 because he became "frustrated" with former FBI director James Comey's public announcement in October 2016 of the reopening of the Hillary Clinton email server investigation. However, Steele's "frustration" could not account for his press contact in September 2016. Therefore, Steele had another motive, but the FISA judge was led to believe that Steele had shared information with the press only once, and then only because of his "frustration" at the reopening of the Hillary investigation, without having any other motivation.
Durham did not prosecute anybody responsible for the abuses discussed above or explain his reasons for not doing so, leaving the American people to ask: "Why did you give us more bull, Durham?"
Allan J. Favish is an attorney in Los Angeles. His website is allanfavish.com. James Fernald and Mr. Favish have co-authored a book about what might happen if the government ran Disneyland, titled Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).