When and how do we prosecute such a widespread, overarching conspiracy to treason? First, Comey should face a litany of felony charges.
Comey appeared in front of the House Judiciary and House Oversight and Government Reform Committees last week in a closed-door hearing. The committees are investigating the FBI’s handling of the Clinton email and Trump-Russia investigations. (RELATED: Comey Sues To Block Subpoena For House Testimony)
Comey made numerous assertions that are seemingly at odds with other statements he made during the course of the same testimony.
Aaron Klein made these points:
1 – Comey says that the FBI’s Russia collusion investigation was not initiated by the anti-Trump dossier financed by Democrats. Yet earlier in the same testimony, he states that he doesn’t remember the “factual predicate” that launched the FBI’s investigation, and he cannot recall ever seeing the bureau’s initiation document that officially started the probe.
Here is where Comey stated twice that the dossier did not launch the probe:
QUESTION: Director Comey, do you agree with Mr. Baker (former FBI counsel James Baker) that the initial allegation in the FBI’s counterintelligence operation into the Trump campaign’s potential coordination with the Russian Government, quote/unquote, had nothing to do with the Steele dossier?
Mr. Comey: Yes. That’s correct
QUESTION: Mr. Comey, was the FBI’s investigation into Russian interference and potential coordination with the Trump campaign started by a fraudulent dossier?
Mr. Comey: It was not.
Mr. Deutch: Can you explain how you know that?
Mr. Comey: Because I know what the basis was for starting the investigation. It was the information we’d received about a conversation that a Trump foreign — campaign foreign policy adviser had with an individual in London about stolen emails that the Russians had that would be harmful to Hillary Clinton. It was weeks or months later that the so-called Steele dossier came to our attention.
While Comey conveys certainty that the dossier was not involved in launching the probe, he earlier stated that he doesn’t “remember precisely” the “factual predicate” that led to the FBI’s investigation.
He made those comments here:
Mr. Gowdy: Director Comey, can you tell us the factual predicate that may have led to the launching of that counterintelligence investigation?
Mr. Comey: I don’t think that I can describe the factual predicate for two reasons: I don’t remember precisely; and to the extent I remember, I think those are classified facts that implicate the concern the Bureau just expressed.
Comey also repeatedly stated that he cannot recall ever reading the FBI’s initiation document that launched the probe.
2 – Comey claimed he “did not know for sure” how Steele’s dossier reached the FBI. Yet John McCain repeatedly stated that he personally hand delivered the dossier directly to Comey. It is true that McCain delivered the dossier to the FBI after the agency reportedly obtained it earlier by other means, but Comey’s direct involvement in later receiving the dossier raises questions about the veracity of his statements.
“How did Chris Steele’s information reach the FBI?” Comey was asked generally. The question did not refer to any specific time period.
“I don’t know for sure,” Comey answered. “I have some recollection that he passed it to an agent that he knew and that that agent sent it on to headquarters. I think that’s the way in which it reached the Counterintelligence Division, but I don’t remember the specifics of that.”
In a book published earlier this year, The Restless Wave, McCain, the late Arizona senator, wrotethat he gave Steele’s dossier to Comey on Dec. 9, 2016.
In October 2017, McCain also said that he gave Steele’s material to the FBI. “I gave it to no one except for the director of the FBI. I don’t know why you’re digging this up now,” McCain told the Daily Caller during what the news website described as a testy exchange. A reporter had asked McCain whether he was the source who provided the dossier to BuzzFeed News.
The founders of the controversial opposition research firm Fusion GPS previously admitted that they helped Steele share the document with McCain.
While he was alive, McCain’s office never responded to repeated queries from Breitbart News asking whether McCain knew that the information he delivered to Comey was actually an opposition document reportedly funded by Hillary Clinton’s 2016 presidential campaign and the Democratic National Committee.
It is unclear why McCain would feel the need to get the dossier to the FBI leadership a few weeks after the November 2016 election. According to numerous reports and Capitol Hill testimony, the FBI immediately took Steele’s information seriously when the ex-spy reportedly provided his anti-Trump claims to a contact at an FBI field office in Rome in July 2016.
Mother Jones reported that a “few weeks” after Steele went to the FBI on his own in July, “the bureau asked him for information on his sources and their reliability and on how he had obtained his reports.”
“He was also asked to continue to send copies of his subsequent reports to the bureau,” Mother Jones reported.
“In other words, by the end of the July, the leadership of the FBI was paying attention,” the Washington Post reported.
Not only were they paying attention, the BBC reported that Steele’s information served as a “road map” for the FBI’s investigation into claims of coordination between Moscow and members of Trump’s presidential campaign.
The dossier reportedly served as part of the FBI’s justification for seeking the FISA court’s reported approval to clandestinely monitor the communications of Carter Page, the American oil industry investor who was tangentially and briefly associated with Trump’s presidential campaign.
3 – Comey says that prior to signing a FISA application to obtain a warrant to conduct surveillance on Carter Page, the embattled former FBI director was aware that the Steele dossier was financed by Democrats who opposed President Donald Trump. Yet according to Democratic and Republican House Intelligence memos, that information was not specifically included in the FISA application, which in part relied on Steele’s work to obtain warrants to monitor Page.
In the testimony, Comey was asked about his knowledge of Steele’s political patrons.
I thought he was retained as part of a Republican-financed effort — retained by Republicans adverse to Mr. Trump during the primary season, and then his work was underwritten after that by Democrats opposed to Mr. Trump during the general election season.
“When did you learn that his work went from being financed by what you described as Republicans to what you described as Democrats?” Comey was asked.
The former FBI director was also asked whether he learned about political actors financing Steele “before there were any court filings” — a clear reference to the FISA application, which Comey first signed in late October 2016.
Comey replied: “I certainly learned of it before the end of October. And I think the filing that you’re referring to obliquely was at the end of October sometime. So, it was before that.”
Comey’s FISA application to conduct surveillance did not specifically state that the FBI had information that Steele was being paid in connection with any U.S. political party, according to House documents.
A House Intelligence Committee memo released last February documented that as FBI director, Comey signed three FISA applications to spy on Page with the dossier serving as part of the basis for the warrant requests.
“Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior and FBI officials,” the memo states.
Democrats on the House Intelligence Committee released a rebuttal of the House memo that confirms the key contention that the FBI and DOJ both failed to inform the FISA court that Steele’s dossier was funded by Hillary Clinton’s 2016 presidential campaign and the Democratic National Committee (DNC) via the Perkins Coie law firm.
The Democratic memo quotes a footnote from the FISA application, which says that Steele:
was approached by an identified U.S. person who indicated to Source #1 [Steele] that a U.S.-based law firm had hired the identified U.S. person to conduct research regarding Candidate #1’s ties to Russia. (The identified U.S. person and Source #1 have a long-standing business relationship.) The identified U.S. person hired Source #1 to conduct this research. The identified U.S. person never advised Source #1 as to the motivation behind the research into candidate #1’s ties to Russia. The FBI speculates that the identified U.S. person was likely looking for information that could be used to discredit Candidate #1’s campaign.
That footnote was further confirmed when the Trump administration released a redacted versionof the FISA applications last July.
The statement in Comey’s FISA application that “the FBI speculates” that Steele “was likely looking for information that could be used to discredit” Trump’s campaign is a far cry from informing the court that the dossier utilized in the FISA warrant was paid for by Trump’s primary political opponents, namely Clinton and the DNC.
4 – Comey repeatedly stated in the testimony that he “never” knew Steele had been retained to do his work by U.S.-based law firm Perkins Coie. Yet the FISA warrant to spy on Carter Page signed three times by Comey stated the FBI had information that Steele had been hired by a “U.S.-based law firm.”
It specifically stated the FBI “was approached by an identified U.S. person who indicated to Source #1 [Steele] that a U.S.-based law firm had hired the identified U.S. person to conduct research regarding Candidate #1’s ties to Russia.”
Comey made his remarks during testimony on Friday. Here is a transcript of the relevant portions of Comey’s latest testimony as it relates to Perkins Coie:
Mr. Gowdy: When did you learn that Fusion GPS was hired by Perkins Coie?
Mr. Comey: I never learned that, certainly not while I was Director.
Mr. Gowdy: Well, when did you learn the DNC had hired Perkins Coie?
Mr. Comey: I never learned that. Again, while I was Director. I think I’ve read it in the media, but, yeah, even today, I don’t know whether it’s true.
Mr. Gowdy: While you were the Director, you never knew that the DNC hired a law firm that hired an oppo research firm that hired Christopher Steele?
Mr. Comey: No, I don’t think so. I don’t have any recollection of being told that or reading that or learning that while I was Director.
Comey was not asked to explain how he could sign three FISA warrants stating that Steele was hired by a “U.S.-based law firm” yet claim not to know Steele was hired by Perkins Coie, which was working for Clinton and the DNC.
Later in the testimony, a skeptical Mark Meadows (R-NC) asked Comey to explain his claim that he didn’t know Steele was being paid via Perkins Coie considering testimony from Comey’s own former legal counsel, FBI official James Baker, that Baker was contacted by an attorney for Perkins Coie and was provided with documents related to the Russia probe.
Here is the relevant portion of that testimony:
Mr. Meadows: Let me ask one clarifying question, if you don’t mind. Director Comey, you were saying that you had no knowledge that Perkins Coie was actually involved with the Democrat National Committee and involved in this particular investigation that ultimately was initiated. Is that correct?
Mr. Comey: I, when I was FBI Director, don’t remember ever being told anything about Perkins Coie. I think I’ve since read stuff in the media, but not when I was Director.
Mr. Meadows: So are you saying that James Baker, your general counsel, who received direct information from Perkins Coie, did so and conveyed that to your team without your knowledge?
Mr. Comey: I don’t know.
Mr. Meadows: What do you mean you don’t know? I mean, did he tell you or not?
Mr. Comey: Oh, I — well —
Mr. Meadows: James Baker, we have testimony that would indicate that he received information directly from Perkins Coie; he had knowledge that they were representing the Democratic National Committee and, indeed, collected that information and conveyed it to the investigative team. Did he tell you that he received that information from them? And I can give you a name if you want to know who he received it from.
Mr. Comey: I don’t remember the name Perkins Coie at all.
5 – Comey agreed with Democratic assessments that disgraced former FBI agent Peter Strzok proved he was not motivated by partisan politics because he was one of only a few people who knew about the investigation into Russian collusion and yet never leaked the details to the news media. Later in the same testimony, however, Comey said a main reason the investigation was not made public was because “we didn’t know whether we had anything,” implying the FBI could look bad if it released information to the public without evidence to back up the investigation. He also said informing the public could hamper the investigation.
Speaking of Strzok, Comey said “it’s hard for me to see how he was on Team Clinton secretly at that point in time. And he also was one of the handful of people in the entire world who knew we were investigating four Americans who had some connection to Mr. Trump during the summer of 2016, and he didn’t tell a soul. So it’s hard to reconcile that with his being on Team Clinton.”
Later in the same testimony, Comey provided motivations for not going public related to credibility:
QUESTION: Why wouldn’t you have announced that?
Mr. Comey: Well, for a number of reasons. It would — there wouldn’t be any policy exception that would permit it; that is, it would jeopardize the ongoing investigation and it would be brutally unfair because we didn’t know whether we had anything. We literally just started. And as I said, by the time I was fired, we still hadn’t come to a conclusion. And so we’d be revealing something that was inherently misleading and jeopardizing our ability to investigate by revealing it.
It’s for that reason — I actually don’t remember any discussion about whether to reveal that we had these classified counterintelligence files. Instead, what we debated a lot was should we tell the American people that the Russians are messing with our election more broadly.
THE FEDERAL JUDGE OVERSEEING MICHAEL FLYNN’S SENTENCING JUST DROPPED A MAJOR BOMBSHELL
THE SENTENCING MEMORANDUM REVEALS FOR THE FIRST TIME CONCRETE EVIDENCE THAT THE FBI CREATED MULTIPLE SUMMARIES OF MICHAEL FLYNN’S QUESTIONING, WHICH MAY INDICATE THEY’RE HIDING THE TRUTH.
By Margot Cleveland, The Federalist, December 13, 2018:
Further revelations may be forthcoming soon following an order entered late yesterday by presiding judge Emmet Sullivan, directing the special counsel’s office to file with the court any 302s or memorandum relevant to Flynn’s interview.
Flynn, who served briefly as President Donald Trump’s national security advisor, pleaded guilty more than a year ago to making false statements to federal investigators during a January 24, 2017 interview. During that interview, Strzok and (presumably) Pientka questioned Flynn about a telephone conversation the Trump advisor had with Russian ambassador Sergey Kislyak.
While Flynn’s sentencing memorandum methodically laid out the case for a low-level sentence of one-year probation, footnote 23 dropped a bomb, revealing that the agents’ 302 summary of his interview was dated August 22, 2017. As others have already noted, the August 22, 2017 date is a “striking detail” because that puts the 302 report “nearly seven months after the Flynn interview.” When added to facts already known, this revelation takes on a much greater significance.
First, text messages between Strzok and former FBI Attorney Lisa Page indicate that Strzok wrote his notes from the Flynn interview shortly after he questioned the national security advisor on January 24, 2017. Specifically, on February 14, 2017, Strzok texted Page, “Also, is Andy good with F 302?” Page responded, “Launch on f 302.” Given Strzok’s role in the questioning Flynn, the date (three weeks from the interview), the notation “F 302,” and Page’s position as special counsel to Andrew McCabe, it seems extremely likely that these text exchanges concerned a February 2017, 302 summary of the Flynn interview.
Additionally, now that we know from the sentencing memorandum that the special counsel’s office has tendered a 302 interview summary dated August 22, 2017, we can deduce that an earlier 302 form existed from James Comey’s Friday testimony before the House judiciary and oversight committees.
During the day-long questioning of the former FBI Director, Rep. Trey Gowdy asked Comey whether the agents who interviewed Flynn had indicated that Flynn did not intend to deceive them during the interview. After Comey replied “No,” Gowdy pushed him, asking “Have you ever testified differently?” Comey again responded, “No.”
But when asked whether he recalled being asked that question doing an earlier House hearing, Comey countered: “No. I recall — I don’t remember what question I was asked. I recall saying the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing.” (More on that testimony shortly.) This exchange then followed:
Mr. Gowdy: “Who would you have gotten that from if you were not present for the interview?”
Mr. Comey: “From someone at the FBI, who either spoke to — I don’t think I spoke to the interviewing agents but got the report from the interviewing agents.”
Mr. Gowdy: “All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?”
Mr. Comey: “I don’t remember for sure. I think I may have done both, that is, read the 302 and then investigators directly. I just don’t remember that.”
President Trump fired Comey on May 9, 2017, so the 302 of the Flynn interview Comey read must have been written before then. Why then was a new 302 drafted on August 22, 2017? And by whom?
The timing of the re-write—shortly after then-FBI Agent Strzok was removed from Special Counsel Robert Mueller’s team after his anti-Trump text messages came to light—raises the possibility that Mueller wanted to scrub the evidence of Strzok’s taint. Having the second agent involved in questioning Flynn draft a new 302 summary would eliminate attacks premised on Strzok’s bias against the president.
But was that the only reason the FBI issued a new 302? Were there any differences in the versions?
Congress has been trying to get to the bottom of this question for months upon months. In February, senators Charles Grassley and Lindsey Graham requested the DOJ inspector general, Michael Horowitz, conduct a comprehensive review of potential misconduct in the Russia investigation and specifically asked Horowitz to answer these questions about the Flynn interview and the 302s:
“Did the FBI agents document their interview with Lt. Gen. Flynn in one or more FD-302s? What were the FBI agents’ conclusions about Lt. Gen. Flynn’s truthfulness, as reflected in the FD-302s? Were the FD-302s ever edited? If so, by whom? At who’s direction? How many drafts were there? Are there material differences between the final draft and the initial draft(s) or the agent’s testimony about the interview?”
Horowitz has yet to answer these questions, but the special counsel’s office now has federal judge Sullivan inquiring as well. Sullivan made history a decade ago when he ordered an independent investigation into “the systemic concealment of significant exculpatory evidence,” he discovered during the government’s prosecution of the now-deceased Ted Stevens, then the senior senator from Alaska. The DOJ’s misconduct in the Stevens’ case led Sullivan to enter a standing order in all criminal cases on his docket.
The most recent iteration of Sullivan’s standing entered in the Flynn case required Mueller’s office to produce “any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment.” The order further required the government to submit to the court any information “which is favorable to the defendant but which the government believes not to be material.”
Flynn referenced some of these materials in his sentencing memorandum, specifically the FR-302 from August 22, 2017 and a memorandum apparently written by McCabe and dated January 24, 2017—the same day as Flynn’s interview. Now Sullivan wants to see those documents and ordered Mueller by Friday afternoon “to file on the docket FORTHWITH the cited Memorandum and FD-302.” Sullivan further ordered “the government to file on the docket any 302s or memoranda relevant to [Flynn’s interview.]”
What motivated Sullivan is unclear, but his experience in the Stevens’ case was a likely trigger. In that case, the government withheld 302s, didn’t include exculpatory statements in the 302s, and did not create a 302 for an interview that “didn’t go very well,” from the prosecution’s standpoint. Sullivan likely wants to assure himself that the Flynn case isn’t a copycat of the political targeting of Stevens from a decade ago.
Once the government dockets the evidence, Sullivan should be able to resolve two outstanding questions: First, what, if any, changes were made to the 302s? Second, did Strzok and his fellow FBI agent express a view on whether Flynn was lying?
Here, we return to Comey’s testimony from Friday referenced above, that “the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing.” Comey further explained, though, that his “recollection was [Flynn] was — the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is, hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being — they’re telling falsehoods. There’s no doubt he was lying, but that those indicators weren’t there.”
The earlier version(s) of the 302s will either support or contradict Comey’s testimony. Same with McCabe’s January 24, 2017 memorandum. The latter will prove particularly interesting given the conflict between Comey’s latest testimony and that of McCabe, who served as deputy director of the FBI at the time. In an executive session of the House Permanent Select Committee on Intelligence, McCabe acknowledged “the two people who interviewed [Flynn] didn’t think he was lying, . . .”
Of course, this all assumes that the special counsel’s office still has copies of the initial 302s created, which might not be the case given that when Mueller’s “pitbull,” Andrew Weissmann, led the Enron Task Force, his team, among other things, systematically destroyed draft 302s.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.