This Week’s DOJ Report Highlights the Danger of Shrouding Law Enforcement Tactics in Secrecy

Trump adviser Carter Page is just the tip of the iceberg.

Side by side images of Barr and Horowitz
Attorney General William Barr; Department of Justice Inspector General Michael Horowitz. Photo illustration by Slate. Photos by Mark Wilson/Getty Images and Win McNamee/Getty Images.

On this week’s Political Gabfest, David Plotz, Emily Bazelon, and John Dickerson discussed the dangers of Attorney General William Barr denouncing an evidence-based report issued by the Department of Justice’s inspector general. They also focused on the IG report’s revelations that the application sent to a FISA court requesting a wiretap on Trump foreign policy adviser Carter Page contained “significant inaccuracies and omissions,” including a failure to reveal that Page had provided information about Russia to the CIA. Indeed, one FBI agent had altered an email to withhold that information from the court. This transcript of their conversation has been edited and condensed for clarity.

David Plotz: Department of Justice Inspector General Michael Horowitz issued a 434-page report this week that reached two conclusions. First, the FBI’s investigation into Russian interference in the election and the Trump campaign’s involvement with that Russian interference known as Operation Crossfire Hurricane—which, incidentally, is the most OK Boomer name for an FBI operation you can possibly imagine. But that investigation was properly predicated. That is, it was not based on some kind of partisan witch hunt by the Obama administration. It was based on the evidence that the FBI saw and was a reasonable premise for the investigation to take place.

Second, Horowitz concluded that the FBI was alarmingly loosey-goosey about certain aspects of the investigation. Notably, in the way that it broke rules in order to win approval of a FISA—Foreign Intelligence Surveillance Act—warrant on Trump adviser Carter Page and then to renew that warrant a couple of times.

Attorney General Bill Barr and John Durham, a prosecutor who is doing another investigation at Barr’s behest, immediately denounced the conclusion of Horowitz’s investigation. Durham’s report will presumably reach the conclusion that the FBI was politically motivated.

So what do we, as citizens, do with these competing narratives? In one world, this was a properly predicated investigation, and in the other, it was a politically motivated investigation.

Emily Bazelon: I wish I had like the biggest Magic Marker in the world to draw a really thick line between the two lessons of the Horowitz report. In the world of “Donald Trump is the president and we’re talking about politics,” what matters is that there was a sound basis for opening this investigation. There was political opinion expressed by FBI agents on both sides. We have heard a ton about the FBI agents who were worried about Trump being elected. Now we have evidence that FBI agents were also totally thrilled that Trump was being elected.

What Horowitz found was that these opinions did not mean that the FBI was doing something politically biased. The agents cared about who won the election. They were also doing their job separately from that. That makes total sense to me. I think it would be better, optics-wise, if FBI agents stopped texting about their political opinions about who should be president, but they could set aside that desire and do their jobs properly, because that’s what they’re trained to do.

When it comes to the criminal inquiry that Attorney General Barr and John Durham are launching into these very same questions, I think it’s reprehensible and really problematic for the Justice Department to be using its microphone in this really politicized, weaponized way. And I wonder what is going to happen when John Durham comes back, presumably with a damning report about the FBI.

Perhaps even criminal charges against officials who the inspector general has effectively cleared. And I especially wonder about this in the context of Christopher Wray, the FBI director. He gave a factually sound, reality-based reaction to the inspector general’s reports, which he accepted. It said there were lots of problems to address at the FBI with their procedures for getting FISA applications.

That’s the other side of my Magic Marker line. He gave a normal government official response—and Trump’s response to Wray was, of course, to denounce him.

So if Durham and Barr want to criminally charge FBI officials or other people at the Justice Department, and Christopher Wray is still FBI director, then what? Where are we going to be when we have that kind of eventuality? Or are Barr and Durham just going to spin this investigation out endlessly past the election, so Trump can keep pointing at it as his vindication, as he has done with so many other moments when he’s claimed we’re going to have some big revelation that damns all his enemies and exonerates him—and then it just never comes.

John Dickerson: The way people can avoid being confused about these competing views is not to frame it that way. Here you had somebody who produced a 400-page report, who did all the work and provided the evidence to come to a set of conclusions, and Barr didn’t give any evidence for the position he held. It seems to me as somebody who’s not the president’s lawyer but is the attorney general, he owes some professional restraint to the IG. He may privately disagree with the findings, and Durham might too, but unless they’re going to come with evidence, to do it in the way they did seems super irregular and also part of a larger effort to throw truth up in the air.

For years civil libertarians have been skeptical of the FISA court, of the standards of evidence, that there really were no checks on anybody seeking a FISA warrant. Now we have detail after detail after detail, particularly in the Carter Page context. Page didn’t play a very big role in the Mueller report, but he played a big role in the public debate about how this was all being carried out. The FBI sure did hide a bunch of exculpatory evidence, pumped-up evidence to make it look bad. Left out the fact that Page, who was meeting with Russian officials, was then advising the CIA on what took place in those meetings. That seems to be a real abuse regardless of how this whole thing started.

Bazelon: This is the other side of my line. If you’re thinking about FISA applications from the point of view of civil liberties, the critique is that it’s secret and it allows for all the surveillance. Once you’re in—you could be a terrorist suspect or a threat to national security—you don’t know you’re being surveilled and even worse, you never get the application afterward. It’s all secret. What we’re seeing here is the danger of shrouding law enforcement tactics in utter secrecy. The FISA court has basically rubber-stamped almost every single application. And what we’re seeing here when you actually look under the rock is that the FBI is somewhere between sloppy and incompetent or just indifferent to actually doing this in any kind of fair way.

The particular fact about the Carter Page FISA application that just floored me was that he had been giving information to the CIA for years, and they just left that out. This is the part that a government lawyer actually falsified in an email and could be criminally charged for. But just think about that. This guy who our government is surveilling without his knowledge, or really hardly any check on that power, it turns out was an intelligence asset for another agency, and the FBI just hid that information from the FISA court. That’s really bad. We should care about fixing those problems, and we should do something about the level of secrecy in these FISA proceedings.

Plotz: The fact that he was doing the CIA’s work was what allowed the FBI to gin up suspicion about him that justified the warrant. So it wasn’t just that they ignored it, it was that the actual work was the predicate for the warrant itself, which is outrageous. I’ve always assumed that the FBI has been playing fast and loose with FISA stuff, because even in legal proceedings where there two sides, the prosecutors are constantly engaged in chicanery. So when there’s only one side, and it’s secret and there’s no opponent? You knew that they were doing stuff that was shady.

Emily, it’s very clear why the target cannot have an attorney in the FISA process—because the target doesn’t know they’re a target. If you’re Carter Page, you don’t know you’re about to be secretly surveilled, so you can’t hire an attorney to tell them not to secretly surveil you. But why doesn’t the court have a devil’s advocate, someone whose job it is to represent the interests of the surveilled person and to be the antagonist in that process? Because now we’re relying on the judges to be the antagonists, to weigh the evidence.

Why isn’t there a counselor whose job it is to essentially say, My client cannot be here because my client does not know they’re being surveilled ,and I understand that, and I’m never going to tell, but I’m going to look at the evidence you’re presenting, and I get evidentiary rights, and I can question it, and I can poke holes in it, and then the court can make a decision about it. Why is that not the process?

Bazelon: I think it’s a great idea to have some kind of adversarial process within FISA proceedings. The reason that it doesn’t exist is that it’s not in the statute, which is not a good reason.

The other question is whether defendants should at least have after-the-fact access to these applications and records similar to the way that defendants do in criminal proceedings. And maybe there’s a way to do both of those reforms. I also want to point out that in 2018 there were 1,833 targets of FISA orders, including 232 Americans. So we’re focusing on this problem because of Carter Page, but it’s actually a much bigger problem that civil libertarians have been worrying about for years. A lot of people who defend the establishment of the national security apparatus post 9/11 have been saying oh, don’t worry about this, the Justice Department is on its best behavior, they have all kinds of reasons to make sure they’re doing this properly. But in fact, we know that in 2018, the FISA court only rejected one application.

Dickerson: If you let the elasticity in your sweatpants expand, ultimately it loses all shape. Power only encourages you to use more power. You could make the case that the FBI got so sloppy because it was encouraged to be sloppy. Many of the people who are defending the president supported the looseness of the FISA system before, when it was thought of as something that basically allowed law enforcement to have the tools to fight terrorists.

That looseness that it encouraged has now hurt somebody that they would like to defend. This is a cousin to the argument the Democrats are making about the president, that his behavior represents a pattern, and an escalating comfort with the use of power against norms and practices. When you do that, you don’t stop. Power gets more hungry, and you end up accumulating an aggregate amount of abuses when you do this over time. So there’s a related way in which these are connected.

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