A Reckoning for the FBI
The Editorial Board wsj.com
Now we know why the FBI tried so hard to block release of the House Intelligence Committee memo. And why Democrats and the media want to change the subject to Republican motivations. The four-page memo released Friday reports disturbing facts about how the FBI and the Foreign Intelligence Surveillance Court appear to have been used to influence the 2016 election and its aftermath.
The White House declassified the memo Friday, and you don’t have to be a civil libertarian to be shocked by the details. The memo confirms that the FBI and Justice Department on Oct. 21, 2016 obtained a FISA order to surveil Carter Page, an American citizen who was a relatively minor volunteer adviser to the Trump presidential campaign.
The memo says an “essential” part of the FISA application was the “dossier” assembled by former British spy Christopher Steele and the research firm Fusion GPS that was hired by a law firm attached to the Clinton campaign. The memo adds that former FBI Deputy Director Andrew McCabe told the committee in December 2017 that “no surveillance warrant would have been sought” without the dossier.
This is troubling enough, but the memo also discloses that the FBI failed to inform the FISA court that the Clinton campaign had funded the dossier. The memo says the FBI supported its FISA application by “extensively” citing a September 2016 article in Yahoo News that contained allegations against Mr. Page. But the FBI failed to tell the court that Mr. Steele and Fusion were the main sources for that Yahoo article. In essence the FBI was citing Mr. Steele to corroborate Mr. Steele.
Unlike a normal court, FISA doesn’t have competing pleaders. The FBI and Justice appear ex parte as applicants, and thus the judges depend on candor from both. Yet the FBI never informed the court that Mr. Steele was in effect working for the Clinton campaign. The FBI retained Mr. Steele as a source, and in October 2016 he talked to Mother Jones magazine without authorization about the FBI investigation and his dossier alleging collusion between Russia and the Trump campaign. The FBI then fired Mr. Steele, but it never told the FISA judges about that either. Nor did it tell the court any of this as it sought three subsequent renewals of the order on Mr. Page.
We don’t know the political motives of the FBI and Justice officials, but the facts are damaging enough. The FBI in essence let itself and the FISA court be used to promote a major theme of the Clinton campaign. Mr. Steele and Fusion then leaked the fact of the investigation to friendly reporters to try to defeat Mr. Trump before the election. And afterward they continued to leak all this to the press to cast doubt on the legitimacy of Mr. Trump’s victory.
No matter its motives, the FBI became a tool of anti-Trump political actors. This is unacceptable in a democracy and ought to alarm anyone who wants the FBI to be a nonpartisan enforcer of the law.
We also know the FBI wasn’t straight with Congress, as it hid most of these facts from investigators in a briefing on the dossier in January 2017. The FBI did not tell Congress about Mr. Steele’s connection to the Clinton campaign, and the House had to issue subpoenas for Fusion bank records to discover the truth. Nor did the FBI tell investigators that it continued receiving information from Mr. Steele and Fusion even after it had terminated him. The memo says the bureau’s intermediary was Justice Department official Bruce Ohr, whose wife, incredibly, worked for Fusion.
Democrats are howling that the memo, produced by Republican staff, is misleading and leaves out essential details. They are producing their own summary of the evidence, and by all means let’s see that too. President Trump should declassify it promptly, along with Senator Chuck Grassley’s referral for criminal investigation of Mr. Steele. But note that Democrats aren’t challenging the core facts that the FBI used the dossier to gain a FISA order or the bureau’s lack of disclosure to the FISA judges.
The details of Friday’s memo also rebut most of the criticisms of its release. The details betray no intelligence sources and methods. As to the claim that the release tarnishes the FBI and FISA court, exposing abuses is the essence of accountability in a democracy.
Intelligence Chairman Devin Nunes is doing a service by forcing these facts into the public domain where the American people can examine them, hold people accountable, and then Congress can determine how to prevent them in the future. The U.S. has weathered institutional crises before—Iran-Contra, the 9/11 intelligence failure, even Senator Dianne Feinstein’s campaign against the CIA and enhanced interrogation.
The other political misdirection is that the memo is designed to undermine special counsel Robert Mueller’s probe into possible Trump collusion with Russia. We doubt Mr. Mueller will be deterred by any of this. The question of FISA abuse is independent of Mr. Mueller’s work, and one that Congress takes up amid a larger debate about surveillance and national security. Mr. Trump would do well to knock off the tweets lambasting the Mueller probe, and let House and Senate Republicans focus public attention on these FISA abuses.
If all of this is damaging to the reputation of the FBI and Justice Department, then that damage is self-inflicted. We recognize the need for the FBI to sometimes spy on Americans to keep the country safe, but this is a power that should never be abused. Its apparent misuse during the presidential campaign needs to be fully investigated.
Toward that end, the public should see more of the documents that are behind the competing intelligence memos to judge who is telling the truth. Mr. Trump and the White House should consider the remedy of radical transparency.