Worse Than Watergate? Only Question Is One of Degree.

 

I’m old enough to remember the times when lying to a Court would net an attorney, at the very least, a serious and sobering “chat” with a Judge in Chambers, and could very well lead to disciplinary action by the Bar Association. It could lead to further action, as well, such as suspension of the right to practice, or, in rare cases involving repeated conduct of this nature, permanent disbarment.

Alas, those days seem to be receding into the mists of time, as it appears that some of the highest ranking lawyers in the Department of [in]Justice and FBI brazenly lied through their teeth to a Judge, or multiple Judges, of a Federal Court, in this case, the Foreign Intelligence Surveillance Court. The very thought of what would have happened to me had I lied to a Federal Court, especially with a few of the Federal Judges I respected most highly, sends shudders through me at the idea of what might have become of me and my career at the Bar.

Lawyers are trained from early days to expect they will be required to corroborate and substantiate any statement or argument they make in behalf of their client’s position and I will attempt to do that here and now, although based on the lengthy commentary following @ctlaw‘s post “The Carter Page FISA Application” it is obvious there will be some (many?) who will remain unpersuaded no matter what the foundation may be for these statements.

I have long been astounded at the hubris demonstrated by the denizens of the Swamp with law licenses and what they thought they could get away with; the passage of a considerable amount of time which this “investigation” has taken combined with a total absence of any kind of disciplinary action whatsoever makes me wonder if they may skate completely in the face of what seems to me, at least, to be some of the most unsavory and unethical conduct I have ever seen. And, yes, I make that statement as a lawyer who spent more decades than I care to recount here as a member of the Bar of the State of Louisiana. However, I know I cannot be too far off base when an analyst of the stature of Andrew McCarthy draws conclusions like this in one of several excellent treatments of this disgraceful scandal published after the release of this “verified” application, in which he openly wonders about the conduct of even the Judges of the FISC:

In my public comments Sunday morning, I observed that the newly disclosed FISA applications are so shoddy that the judges who approved them ought to be asked some hard questions. I’ve gotten flak for that, no doubt because President Trump tweeted part of what I said. I stand by it. Still, some elaboration, which a short TV segment does not allow for, is in order.

I prefaced my remark about the judges with an acknowledgment of my own personal embarrassment. When people started theorizing that the FBI had presented the Steele dossier to the FISA court as evidence, I told them they were crazy: The FBI, which I can’t help thinking of as myFBI after 20 years of working closely with the bureau as a federal prosecutor, would never take an unverified screed and present it to a court as evidence. I explained that if the bureau believed the information in a document like the dossier, it would pick out the seven or eight most critical facts and scrub them as only the FBI can — interview the relevant witnesses, grab the documents, scrutinize the records, connect the dots. Whatever application eventually got filed in the FISA court would not even allude en passant to Christopher Steele or his dossier. The FBI would go to the FISA court only with independent evidence corroborated through standard FBI rigor.

Should I have assumed I could be wrong about that? Sure, even great institutions go rogue now and again. But even with that in mind, I would still have told the conspiracy theorists they were crazy — because in the unlikely event the FBI ever went off the reservation, the Justice Department would not permit the submission to the FISA court of uncorroborated allegations; and even if that fail-safe broke down, a court would not approve such a warrant.

It turns out, however, that the crazies were right and I was wrong. The FBI (and, I’m even more sad to say, my Justice Department) brought the FISA court the Steele-dossier allegations, relying on Steele’s credibility without verifying his information…

“Well, guess what? No one knows that better than experienced federal judges, who deal with a steady diet of warrant applications. It is basic. Much of my bewilderment, in fact, stems from the certainty that if I had been so daft as to try to get a warrant based on the good reputation of one of my FBI case agents, with no corroboration of his or her sources, just about any federal judge in the Southern District of New York would have knocked my block off — and rightly so.”

I must note, in quoting McCarthy at such length, that I regard him as one of the most measured and careful commentators in this field, and one whose opinions are based on many years of actual experience as a Federal prosecutor, as opposed to so many “analysts” who simply have no idea what they are talking about. McCarthy does, and the only times I have found myself in even mild disagreement with him were the times when he was so slow to be persuaded that his former colleagues, like Comey et al., were just as corrupt as we now know, beyond peradventure, they are– and were.

Another of my favorite, “go-to” writers is Mollie Ziegler Hemingway, who had a similarly accurate assessment in The Federalist in a piece entitled “Confirmed: DOJ Used Materially False Information To Secure Wiretaps On Trump Associate”, which opens with this observation:

Newly released documents confirm House and Senate investigators’ claims that the Department of Justice and FBI used materially false and misleading information to secure wiretaps on Carter Page, a former volunteer foreign policy advisor to President Trump. The highly redacted documents released in response to Freedom of Information Act requests show how the FBI was able to convince the Foreign Intelligence Surveillance Court to surveil the Naval Academy graduate and energy consultant for a year of his life.

Ms. Hemingway, surely one of the most professional and incisive writers today was saying in the most civil possible terms what many of us have long believed about the DOJ and FBI cabal, as I would venture to say that almost any Judge  you might ask whether they would accept “materially false and misleading information” to support any warrant, much less one as invasive and fearsome as a FISA warrant against a United States Citizen, might well look at you as if you had gone around the last bend. The conduct that phrase describes is, quite simply, lying to a Court; there is no dressing it up.

As hard as it is to find anything even the slightest bit humorous in all of this sordid and rotten treachery, Ms. Hemingway’s column concludes with a wry tongue-in-cheek passage which is just delicious and must be savored:

It remains possible that Page is the most talented spy who ever walked the earth and fully deserved to be surveilled by the federal government. It is also possible that the surveillance was ordered merely because the country has an intelligence apparatus that was unable to recognize their main source was a liar whose sub-sources were at best playing him and whose recklessness left his little partisan research project open to manipulation by foreign adversaries.

Barring those options, our intelligence apparatus misled a FISA court with materially false claims.

Of special note is the opinion piece in this morning’s Wall Street Journal by William McGurn, entitled “Abolish the FISA Court”, a sentiment no one will be surprised to learn I wholeheartedly endorse. In the course of his fine analysis, he makes reference to an article by a Yale Law Professor which points out the dangers of such a Court; his name was Robert Bork and he would have become one of the greatest Justices ever to serve on the Supreme Court had it not been for the outrageous demagoguery of that well known beacon of truth, morality and all that is good, “The Lion of the Senate”, Ted Kennedy, and his sidekick on the Judiciary Committee at that time, “Jumpin’ Joe” Biden, who later became famous for his description of the Obamacare legislation as a “big [ C of C] deal”:

When President Trump tweeted Monday morning that it was “looking more & more like the Trump Campaign for President was illegally being spied upon,” the common rejoinder was four judges had signed off on it.

Now ask yourself: Would Deputy Attorney General Rod Rosenstein (who signed one of the renewal applications) and others be so quick to put their names on something like this if they didn’t have a FISA judge to give them cover?

The argument is not new. Just before FISA became law, a Yale law professor wrote a prophetic article in these pages about the abuses to come. His name was Robert Bork, and among his worries were that judges would show undue deference to intelligence agencies, that congressional committees wouldn’t be able to summon judges to explain their warrant approvals, and, above all, that giving courts the last say would have “the effect of immunizing everyone, and sooner or later that fact will be taken advantage of.”

The lead editorial in the morning’s Wall Street Journal, entitled “The FBI’s FISA Faults”, also contains a good discussion of this very dangerous episode which should frighten every American citizen who might, some day in the future, serve as an unpaid volunteer for a campaign for a person not on the “approved” list in the higher echelons of that amorphous cloud which calls itself “The Elite”, but which is more and more referred to, correctly in my view, as The Deep  State.

Finally, I have seen comments of some observers who, in good faith no doubt, have the opinion that this document refutes all the assertions in the Nunes memo of February. To those who hold that view, I would most respectfully refer them to the extensively researched article by Byron York, who has spent as much time and energy studying all the twists and turns of this now-full-blown scandal as anyone, in a piece entitled “FISA warrant application supports Nunes memo” which sets out, chapter and verse, each of the 13 substantive paragraphs in that memo, and comes to this conclusion:

Parts of the Nunes memo, like references to the Strzok-Page texts or Bruce Ohr’s testimony, contain information that was not in the application. But that does not make it any less accurate. The bottom line is that, whatever the criticism it has received, the Nunes memo was almost entirely accurate. The release of the FISA application supports that view.

Worse than Watergate? When in our history have we ever had an administration unleash the entire power of the intelligence gathering system of the government — the most powerful in the world– to assure the destruction of the Presidential candidate of the opposite party? I thank God every day of my life that Madame Hillary was defeated, fully admitting the blemishes of the current occupant of the office of President, for so many reasons, one of the major reasons being that had she won, none of this would have ever seen the light of day. As a lawyer who deeply believes in the integrity of most members of the Bench and Bar, no matter what pop culture has to say about our profession, it is my fervent hope that all the sleazy lawyers who perpetrated this hoax on the American people will get the punishments they all so richly deserve.

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  1. Gumby Mark Coolidge
    Gumby Mark
    @GumbyMark

    Well said – I’m a fellow lawyer who had my own unpleasant encounter with Robert Mueller thirty years ago.

    I’ve been reading Andrew McCarthy since the spring of 2017.  At the beginning he was certainly less skeptical than I as to the degree of rot at the FBI, DOJ and the intelligence agencies, but I have to admit I’ve been surprised at how awful it’s turned out to be.

    As you point out, the only reason we now know all of this is because Trump was elected and the conspirators (I say this as someone whose instincts are anti-conspiracy theory) decided not to fold their tents, and instead pursue a plan to undermine the new president.

    • #1
  2. Aaron Miller Inactive
    Aaron Miller
    @AaronMiller

    FBI agents, lawyers, and judges all participated in the fraud — on a case of utmost significance. Why should we trust that other warrants were not similarly approved without care for law or rights? 

    • #2
  3. PHCheese Inactive
    PHCheese
    @PHCheese

    There you go again Jim. Should be in every media outlet in the land. Great post.

    • #3
  4. DonG Coolidge
    DonG
    @DonG

    Jim George: Worse than Watergate? When in our history have we ever had an administration unleash the entire power of the intelligence gathering system of the government — the most powerful in the world– to assure the destruction of the Presidential candidate of the opposite party?

    Few people seem to appreciate the gravity of the abuse done by Team Obama.   The NSA’s budget is about 10 million times larger than the money “the plumbers” were paid.  The plumbers could only flip through a few files in an office, but the NSA can drop in on any phone call and search back in time through texts, emails and meta-data (voice too?) through multiple of hops and intrude on the lives of 1000’s based on a “whim”.  Yes, Spygate is million times worse than Watergate.

    • #4
  5. Guruforhire Inactive
    Guruforhire
    @Guruforhire

    Its closer to Reichstag fire than watergate.

    • #5
  6. JoelB Member
    JoelB
    @JoelB

    This is the kind of thing the Constitution was meant to protect us from. Thank you for the reference to Judge Bork.

    • #6
  7. Gumby Mark Coolidge
    Gumby Mark
    @GumbyMark

    Aaron Miller (View Comment):

    FBI agents, lawyers, and judges all participated in the fraud — on a case of utmost significance. Why should we trust that other warrants were not similarly approved without care for law or rights?

    “If there is one thing a defense lawyer knows, it’s that the government can get you if it wants to.  Any government.  Federal, state or local.  Law-abiding private citizens do not believe this until some government sets out to get them, and they have to pay good money to a man like me to fight for them, but their disbelief is like unto the very dew of May; it evaporates fast.  Along with their bank balances, cheerfulness, and the order of their lives.” – George V Higgins in Defending Billy Ryan

    To which, having been through two of these experiences, I can only add Amen.

    • #7
  8. Herbert defender of the Realm,… Member
    Herbert defender of the Realm,…
    @Herbert

    Jim George: FBI brazenly lied through their teeth to a Judge, or multiple Judges, of a Federal Court, in this case, the Foreign Intelligence Surveillance Court.

    So they don’t disclose in the fisa application that some of the info comes from partisan sources?   If so disclosed…. where is the lie?

    • #8
  9. Hoyacon Member
    Hoyacon
    @Hoyacon

    It’s disgusting, but, absent evidence of Obama involvement, it’s not worse than Watergate IMO.  I can, however, see the other side of the argument in terms of the breadth of the problems.

    • #9
  10. EDISONPARKS Member
    EDISONPARKS
    @user_54742

    Herbert defender of the Realm,… (View Comment):

    Jim George: FBI brazenly lied through their teeth to a Judge, or multiple Judges, of a Federal Court, in this case, the Foreign Intelligence Surveillance Court.

    So they don’t disclose in the fisa application that some of the info comes from partisan sources? If so disclosed…. where is the lie?

    The issue is that they “disclosed” the source of the Steele dossier as being some nebulous political opposition and that information is buried in a very long footnote deep in the document.

    Wouldn’t a reasonable person anticipate that the political source and funding (The HRC Campaign and the DNC)  of primary evidence of probable cause be more prominently explained to a FISA court?

    To many observers it appears the FBI was being deliberately opaque about the source and funding of the Steele dossier while going out their way to highlight Chris Steele as some apolitical super source.

    • #10
  11. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    FBI agents:  Warrants?  We don’t need no stinking warrants.  

     

    • #11
  12. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    I’m especially angry because we will never get to the bottom of the whole outrageous mess, and all the people involved will never be held accountable. It’s like whack-a-mole, with all the players and information that keeps showing up and then seems to be ignored. Great piece, @jimgeorge.

    • #12
  13. Ontheleftcoast Inactive
    Ontheleftcoast
    @Ontheleftcoast

    Jim George: the passage of a considerable amount of time which this “investigation” has taken combined with a total absence of any kind of disciplinary action whatsoever makes me wonder if they may skate completely in the face of what seems to me, at least, to be some of the most unsavory and unethical conduct I have ever seen.

    The slow rolling of document production has already brought the statute of limitations into effect in many cases. The way immunity is being handed out has already protected other key players.

    I know how distressed I am by unethical or, worse, criminal behavior by members of my profession and my coreligionists, so I have some idea how this affects you, Andrew McCarthy, and the other lawyers who, wherever you sit at in the courtroom, honor the law.  McCarthy’s measured tone when writing about how he has been compelled by events to think the previously unthinkable has brought real weight to what he’s been saying.

    • #13
  14. Guruforhire Inactive
    Guruforhire
    @Guruforhire

    My deal on this is that the problem isn’t that many people in high positions lost themselves in partisan rancor, or that all the failsafe mechanisms failed in the process, or that all of this maybe done with full knowledge and approval of other high level executives, or some combination thereof in a perfect storm.  The problem isn’t even that nobody will ever be held to proper account for any of it.

    The problem is, and this is a “threatens the viability of the republic” level problem, is that this is a partisan issue.  There is no possible future where we can trust the institutions of the country in the hands of the other party, the left can no longer have faith in the institutions because this misconduct is not viewed as misconduct, so getting rid of the misconduct is the same thing as authoritarian accountability.  So the problem isn’t one of asymmetric trust.

    There is no possible way to reach an agreeable conclusion to this affair.

    I have absolutely no idea how the well becomes poisoned.

    • #14
  15. Unsk Member
    Unsk
    @Unsk

    “It’s disgusting, but, absent evidence of Obama involvement, it’s not worse than Watergate IMO”

    Really? Maybe you know very little of Watergate. Watergate was the work of some  low level  rogue agents of the Nixon campaign.  There is absolutely no evidence what so ever that the upper reaches of the FBI, DOJ, CIA  or the White House were involved in the original burglary.  It was a two bit second rate burglary with no real advantage for the campaign.  Yes, men close to the President and the President himself were involved in the cover-up of the crime but not the burglary itself. And there was no elaborate effort to snare innocent men to create a diversionary tactical scheme in that cover-up.

    Spy gate  is completely different.  The heads of the DOJ, CIA, FBI  and likely the White House, according to former CIA Chief Brennan, perpetrated an elaborate series of crimes often against completely innocent citizens in their effort to take down the Presidential nominee of a major political party.  The massive scope of this crime, which had to involve cooperation among many agency operatives,  is almost beyond belief. Also, in the aftermath of those crimes, those same agencies have fought illegally tooth and nail to prevent an honest investigation  of the facts. If such a criminal effort is allowed to go unpunished, our whole justice system is at risk and suspect. 

    It does not speak well of you that you cannot see the difference. 

     

    • #15
  16. Ontheleftcoast Inactive
    Ontheleftcoast
    @Ontheleftcoast

    Unsk (View Comment):
    Really? Maybe you know very little of Watergate…

    Thank you for writing this, though rather than “It does not speak well of you that you cannot see the difference” I would have said something like: “It demonstrates how thoroughly successful the Left’s disinformation campaign about Watergate has been that you wrote that sentence.”

    Mark Twain noted “A lie can travel halfway around the world while the truth is putting on its shoes.” He was too optimistic. He lived at he beginning of mass media and before the Big Lie.

    • #16
  17. Old Bathos Member
    Old Bathos
    @OldBathos

    I think Mueller will try to keep the probe going if for no other reason that the silly recusal of the Attorney General ends when Mueller finishes and then AG Sessions would be free to fire, discipline, criminally charge everyone who deserves it as well as un-redact it all.

    This whole fiasco was nothing more than campaign oppo research using the entire federal security enforcement apparatus with the tacit (if not express) approval from POTUS on down. Since everyone was in on it and all part of the same political team, nobody batted an eye, not even the FISA judges.

    I am old enough to remember when the DOJ and FBI were not uniformly partisan and that ethical concerns and the honor of the agency (rather than its PR status of the moment) mattered.  In the new world, an ethical code has been replaced by an ideological compass–if it helps the sacred political side, it is right and just. Combine that with a lot of careerist entitlement-think and inflated ego and the result is a disaster.

    That our cadre of professional “journalists” are incapable of being outraged by this is clear evidence of the spread of the rot.

    • #17
  18. Ontheleftcoast Inactive
    Ontheleftcoast
    @Ontheleftcoast

    Old Bathos (View Comment):
    I think Mueller will try to keep the probe going if for no other reason that the silly recusal of the Attorney General ends when Mueller finishes and then AG Sessions would be free to fire, discipline, criminally charge everyone who deserves it as well as un-redact it all.

    Bingo. Except that AG Sessions won’t have a free hand; a number of culprits will be immune from prosecution the longer it drags on.

    • #18
  19. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    I do not find it surprising how the upper reaches of the Democrats establishment misuse their positions to obtain and maintain power.  I suspect this is how it has always been as long as there has been Democrats and a Federal government that is effectively 90+ percent Democrat partisans.  What I find interesting is that the age of Trump has allowed this corruption to be seen.

    • #19
  20. WillowSpring Member
    WillowSpring
    @WillowSpring

    @gumbymark:

    Well said – I’m a fellow lawyer who had my own unpleasant encounter with Robert Mueller thirty years ago.

    Have you written about this encounter before?  I am in the middle of reading “Licensed to Lie” by Sidney Powell about corruption in the department of justice.  I recommend it, even though it is depressing how far back the abuse of power by Justice Department lawyers goes.

    • #20
  21. milkchaser Member
    milkchaser
    @milkchaser

    Susan Quinn (View Comment):
    I’m especially angry because we will never get to the bottom of the whole outrageous mess, and all the people involved will never be held accountable.

    I hope your prediction turns out to be wrong.

    • #21
  22. milkchaser Member
    milkchaser
    @milkchaser

    Ontheleftcoast (View Comment):
    The slow rolling of document production has already brought the statute of limitations into effect in many cases.

    Remember hearing about Watergate, “It’s not the crime it’s the cover-up”, or “The cover-up is worse than the crime”?

    • #22
  23. Misthiocracy grudgingly Member
    Misthiocracy grudgingly
    @Misthiocracy

    Who has legal standing to discipline a DoJ attorney for lying to a court?

    1. The President.  But the President might be unlikely to do so out of fear of being accused of “injecting partisan politics into the justice system” or even “obstructing justice”.
    2. The judge to whom the attorney lied.  Why might said judge choose to refrain from disciplining the attorney?  Might the judge be afraid of being accused of “partisanship”?  Might the judge not care about the lie if the judge agrees with the attorney’s partisan reasons for lying?
    3. The bar association.  Why might the bar association choose to refrain from disciplining the attorney?  Same reasons as in bullet #2?
    4. Anybody else?
    • #23
  24. Misthiocracy grudgingly Member
    Misthiocracy grudgingly
    @Misthiocracy

    Would there be much support out there for a constitutional amendment making the Attorney General Of The United States an elected position, as is currently the case in many US States?

    If the DoJ is responsible for investigating allegations of criminal activity by the Executive Branch (i.e. The President), then shouldn’t the Attorney General be independent of the Executive Branch?

    Or, maybe the DoJ shouldn’t be responsible for investigating the Executive Branch (since it’s a part of the Executive Branch), and instead there should be a constitutional amendment to create an investigative agency that is a subordinate of Congress and/or the Senate rather than a subordinate of the President?

    I dunno the best way to amend the system, or even if the system can or should be amended, but it does seem pretty clear to me that the current system features some pretty gnarly conflicts of interest.

    • #24
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