It’s only nine days ’til Christmas but the news keeps coming and the Three Martini Lunch is ready! Join Jim and Greg today as they thoroughly enjoy watching Fox News Sunday host Chris Wallace call out former FBI Director James Comey for a long string of statements that have been contradicted by the inspector general’s report on the Justice Department and FBI abusing the FISA process. They also roll their eyes as Democratic Rep. Jeff Van Drew looks for a political lifeline by switching to the Republican Party after announcing he will not vote to impeach President Trump, and the GOP appears ready to accept the man they recently branded a socialist. And Jim is actually rendered speechless for a moment as disgraced Hollywood mogul Harvey Weinstein insists he isn’t getting enough credit for all he’s done for women.
On Monday, Justice Department Inspector General Michael Horowitz released his long-awaited report on the FBI’s handling of FISA warrant requests and renewals concerning one-time Trump campaign figure Carter Page.
Horowitz concluded that there was no provable political bias that went into some 17 major errors in filing for the warrants, including the admission of obviously false information about Page and Trump and the exclusion of exculpatory information. He also did not refer anyone for criminal prosecution.
Democrats and former FBI officials declared this a win for their position and a death blow to the idea that the Obama administration spied on the Trump campaign in 2016.
But former Chief Assistant U.S. Attorney Andrew C. McCarthy says there’s plenty in the report which is very ugly for the FBI and everyone up the chain of command.
Listen to the full podcast as McCarthy tells Greg Corombos what stood out to him in the report, what’s still to come in the investigation led by U.S. Attorney John Durham and whether Horowitz is right to be worried that the rights of everyday Americans are at great risk of being trampled if the FBI acted in such a shoddy manner in a case of great national significance.
Former FBI Director James Comey is busy writing opinion columns and appearing on cable news town halls about the Mueller report, but a former top official at the bureau says Comey has three very good reasons to be worried as the Department of Justice examines how the Trump-Russia probe started in the first place.
Kevin Brock served 24 years in the FBI, including a stint as deputy director for intelligence. He was also principal deputy director at the National Counterterrorism Center. Brock is now head of NewStreet Global Solutions. He says Comey’s first problem is providing evidence that an investigation was warranted in the first place and Mueller’s report makes the case harder to make.
“If there no findings of any type of collusion as they say between the Russians and the Trump campaign, what was the FBI going on in the first place to initiate the case?” asked Brock.
During last week’s Senate testimony, Attorney General William Barr also wondered aloud why the FBI didn’t just contact the Trump campaign about any figures feared to be conspiring with Russia – or the suspicious campaign officials themselves.
Brock says launching a surveillance effort on American citizens without first going to them is highly unusual. According to Brock, under a preliminary investigation, the standard protocol is to warn Americans about who their foreign contacts really are and to encourage cooperation with the FBI.
And he says there are specific things you cannot do during a “PI.”
“You may not cast existing sources or start new sources and target that U.S. person. You may not appeal to the FISA court to get a warrant to intercept the communications of that person. You may not pull their financial records. It’s very limited in scope,” said Brock.
Brock says probing the the basis for a FISA warrant will also put the heat on Comey.
“Electronic surveillance of a U.S person is an incredibly invasive, investigative technique. I’ve referred to it as the nuclear option of intelligence collection. There is nothing that is more invasive of privacy than a FISA court-ordered warrant to monitor all of your communications,” said Brock.
Former FBI Deputy Director Andrew McCabe testified to Congress that the Steele dossier was a major component of the request for a FISA warrant. Brock says that premise was very flimsy.
“They relied heavily on this dossier that is clearly a political document. It should not have been the foundation of any warrant for intercepting an American citizen. That appears to be clear,” said Brock.
Listen to the full podcast as Brock also explains the evidence suggesting Comey knew full well he was part of a political operation rather than one focused on criminal justice and what he expects to learn in the forthcoming report from Justice Department Inspector General Michael Horowitz.
All sides of the Trump-Russia debate see the recently released application for a FISA warrant against a former Trump campaign figure as confirming their previously held opinions on the matter, but a former federal prosecutor says that’s because some are conflating two very different matters and reaching a faulty conclusion.
Over the weekend, the FBI released a redacted version of the FISA warrant request it sought against former Trump aide Carter Page. The paperwork shows the FBI did rely heavily on the Steele dossier, assembled by a former British intelligence official hostile to Trump, and a footnote in the application admits the dossier was funded for months by the Hillary Clinton campaign an the Democratic National Committee.
So what does former federal prosecutor Andrew C. McCarthy see as the headline in this new information?
“That it’s a confirmation of my previously held position,” joked McCarthy, before turning serious.
“My previously held position is basically what we learned in congressional hearings over the past year-plus, which is that the FBI used the Steele dossier, which is a partisan opposition research screed, which was basically commissioned by the Clinton campaign,” said McCarthy.
McCarthy says there’s still information we don’t know, but that we also know there’s no further corroboration of the dossier in the FISA application.
“We know that that’s not there because there have been hearings. There have been reports. Senators (Charles) Grassley and (Lindsey) Graham, for example, put out a report on a classified memo that was declassified earlier this year which laid out not only the passages of the actual FISA warrants that were relevant but also explained what the FBI had done was rely on the credibility of Christopher Steele,” said McCarthy.
So how are all sides claiming victory after the release of the FISA warrant application? McCarthy says it’s because many people are confusing two very different matters: whether Carter Page was someone worthy of further federal scrutiny and whether the government had built a legal case for obtaining a surveillance warrant.
Page aroused suspicion years before the 2016 campaign for trying to become a Russian agent but was dismissed by the Kremlin as an “idiot.”
“To get a FISA warrant under federal law, you have to have probable cause that an American citizen in this case is willfully acting as a clandestine agent of a foreign power.
“That is, he is quite intentionally acting to advance the interests of Russia in the United States in a clandestine way, which means under federal law is a probable violation of federal criminal law,” said McCarthy.
He believes the feds fell short of that burden.
“They didn’t have that that we can see, other than through the Steele dossier, which is why I think (former FBI Deputy Director Andrew) McCabe said that they couldn’t have gotten the warrant without the Steele dossier,” said McCarthy.
“It’s fine to say we should have been concerned about Carter Page and even that we should have investigated Carter Page. Getting a FISA warrant on someone is a drastic step up from that,” he added.
McCarthy also believes President Trump could easily clear up all speculation about what’s still behind those redacted sections of the FISA warrant application.
“President Trump has the power…to declassify and publicize anything in the way of classified information that the government has. Until we get this information, there’ll be a lot of this speculation that goes on,” said McCarthy.
The memo alleging major missteps by the FBI and Justice Department will not likely result in criminal charges, but a former federal prosecutor says that doesn’t mean the issues at stake are any less serious and he says law enforcement officials have done a terrible job explaining the Russia investigation to the American people.
On Friday, the memo from Republicans on the House Intelligence Committee accused FBI and Justice Department officials of obtaining a Foreign Intelligence Surveillance, or FISA, warrant on American Carter Page based on a discredited dossier. They also allege officials failed to tell the FISA judge that the contents of the dossier had not been verified and that it had been paid for by Hillary Clinton’s campaign and the Democratic National Committee.
The GOP memo also quotes former FBI Deputy Director Andrew McCabe as testifying the warrant never would have been issues without presenting the dossier as probable cause.
But is any of this likely to result in criminal prosecution?
“I doubt that they’ve committed a criminal offense. More likely, what they’ve done is violate court rules and norms for the Justice Department’s performance when it refers evidence to the court and asks for use of the court’s processes like warrants,” said Andrew C. McCarthy, a former federal prosecutor and a contributing editor at National Review.
McCarthy says prosecution in these cases is unlikely unless it rises to “an egregious level” of obstructing or perverting justice. But he says these allegations are still serious and could carry some major repercussions.
“It’s a very serious matter and can be grist for all kinds of administrative discipline and even impeachment,” said McCarthy.
He says it’s the difference between abuse of power and criminal conduct.
“There are some varieties of abuse of power that we address in the criminal law but there are many we don’t. That doesn’t mean that the abuses are less serious than crimes,” said McCarthy.
One of McCarthy’s greatest frustrations lies in what he sees as the FBI and Justice Department needlessly confusing the American people on what the Russia investigation led by Robert Mueller is all about.
McCarthy does not believe that the memo is grounds for scrapping the Mueller probe, but he says it’s understandable why people are reaching that conclusion.
“It’s the fault of the FBI and the Justice Department that they’re taking that position,” said McCarthy, who says the government announced a counterintelligence investigation into Russia’s involvement in the 2016 campaign and that part of the probe would look at any Trump campaign officials who had improper ties to the Kremlin.
“That was a completely inappropriate thing to say publicly because the FBI and the Justice Department should never comment on whether investigations are going on and if they are going on what the focus on them is. The government’s not supposed to talk about investigations,” said McCarthy.
“The real problem is that by doing it the way they did it, they conflated in the public mind the overarching Mueller mission…with this whole idea of a Trump-Russian collusion angle.
“And since in the public mind those two things are the same, then it’s perfectly understandable that people would say that if the Trump-Russia collusion angle is a complete fabrication and that a lot of it was built on this dossier, that Mueller’s investigation is illegitimate. I don’t think that’s true but I can see how they feel that way.
They feel that way because of what the FBI and Justice Department said about this investigation, which was very misleading and very wrong,” said McCarthy.
The Democrats’ counter-memo is likely to be the next development in this political drama. But McCarthy remains skeptical of their motivation in this investigation.
“What I’m afraid of is that it’ll just be a partisan political attack. The reason I say that is not just because they’re Democrats and that’s what they do, although I must say on some level I do believe that.
“The other reason I’m fearful is that they were invited by the majority of the intelligence committee to make additions or changes to the [GOP] memo. They really didn’t want to cooperate in it. I think they just wanted to attack it in a partisan way,” said McCarthy.
McCarthy says there are only two possible reasons for Democrats not to cooperate and try to add the context to the memo that they claim is sorely missing.
“The fact they didn’t do that suggests to me either that it doesn’t exist or they would rather package it in a way that was more of a partisan attack than an effort to get out one document that more fully explained what we’re dealing with,” said McCarthy.
He also cautions Americans following the story to be prepared for frustrations at how difficult it is to make more information public, noting that intelligence investigations are necessarily secretive so as not to damage national security and intelligence interests.
In addition to the response from Democrats, McCarthy says the significance of the memo and more will depend on exactly the role the dossier played in securing the FISA warrant.
“If they had other information that would have supported the issuance of a FISA warrant, then the use of the Steele dossier is much less important.
“But if the Steele dossier was critical to getting the warrant issued, that means the government brought to a court information that was unverified and uncorroborated to get surveillance authority – in essence to spy on one presidential campaign with what turns out to be opposition research that was provided to the government by the other presidential campaign,” said McCarthy.
Jim Geraghty of National Review and Greg Corombos of National Review welcome transparency about our government, most recently the disturbing revelations about the FBI’s allegedly sloppy and politically charged approach to obtaining a FISA warrant to conduct surveillance on Trump campaign figure Carter Page. They also roll their eyes as partisans on both sides react to the memo, including Democrats who see nothing wrong with the FBI allegedly using a dossier as evidence without confirming its veracity and not telling the FISA court it was paid for by Democrats and Republicans insisting this means the Mueller investigation must be shut down immediately when the memo’s author says that is not his conclusion at all. And they’re thrilled to see the New England Patriots lose the Super Bowl, but shake their heads in disgust as Philadelphia fans destroy property, flip cars, and engage in other revolting behavior.
Senate Democrats abandoned their hopes of attaching an immigration bill to legislation to fund the federal government , but Rep. Dave Brat, R-Va., warns a fierce fight over immigration policy is still coming that conservatives must win.
Brat also expounded upon why he and dozens of other House Republicans want to make public a FISA memo on FBI and Justice Department conduct in recent years.
However, the big story on Capitol Hill Monday was Senate Democrats agreeing to a GOP plan to fund the federal government through February 8 in exchange for a promise to start a debate on legislation to grant legal status and possibly a path to citizenship for people brought to the United States illegally when they were children.
Until Monday, Democrats has insisted upon immigration being tied to the funding, but Brat says reality smacked the minority party in the face since the government partially shuttered operations at midnight Saturday morning.
“I think they heard plenty of feedback coming back that said, ‘What are you guys doing?'” said Brat, noting the position of Democrats was tantamount to withholding pay for our military and funding for the Children’s Health Insurance Program all for the sake of helping people in the U.S. illegally.
Brat says the untenable position of Senate Minority Leader Chuck Schumer, D-New York, and other Democrats even overwhelmed efforts in the media to paint Republicans as responsible for the shutdown since they control the White House and both chamber in Congress.
“It’s amazing that you have to have a debate on who shut the government down. You’ve got 95 percent in the House and the Senate on the Democrat side voting to shut it down. If you forego rationality and language in the public square, that’s a hint where your society is,” lamented Brat.
In addition to wanting legislation to provide legal status for 800,000 people enrolled in the Deferred Action for Childhood Arrivals program, or DACA, Brat says Democrats wanted the provision with no conditions.
“They got out way over their skis. They’re saying they want a DACA debate. We’re going to have a DACA debate. What they really mean is they want a clean, Democrat DACA bill and no border security,” said Brat.
It’s not just Democrats pushing for a generous DACA bill. The so-called Gang of Six includes Republican Sens. Lindsey Graham, R-S.C., Jeff Flake, R-Ariz., and Cory Gardner, R-Colo.
The legislation they crafted with Senate Minority Whip Dick Durbin, D-Ill., not only grants permanent legal status to the roughly 800,000 DACA enrollees but to all people here illegally who are eligible for DACA but never signed up for it. All of them would also be allowed to pursue a “pathway to citizenship.”
In addition, the parents of all of those people would also get legal status despite being responsible for the law-breaking to enter the U.S. in the first place. All told, some 10 million people could gain legal status as a result of the Gang of Six bill.
The offsets in the legislation amount to very little. The Gang of Six bill would tweak but not fundamentally change current chain migration and visa lottery policies and only allocate money to maintain existing border fencing.
Brat says that approach is reckless, and he is particularly frustrated about the lack of action on chain migration, which allows citizens to sponsor immediate and extended family members to come to the U.S. legally.
“You have all of the leading conspirators on the other side – Chuck Schumer and Nancy Pelosi and Dick Durbin – all coming out against chain migration as early as five years ago. They’ve totally switched sides,” said Brat.
Brat says the progression of legalizing DACA recipients and their extended families results in an economic nightmare.
“If you allow the DACA piece to go through that will have a lot of unintended consequences like chain migration and extended families. That will lead to millions more, while we’re trying to get 20 million American citizens that have left the workforce back in the workforce,” said Brat.
“We’ve got to get all of our own citizens back in the labor force and then you see if you have a labor shortage. The other key piece is we’re trying to move towards a rational skills and merit-based immigration system instead of the familial piece that has gotten us in this boat in the first place,” said Brat.
Brat also says following the Gang of Six prescription will result in another huge bill to pay for a nation already more than $20 trillion in debt.
“Who’s gonna pay the bill? That’s where you get the issue: health care, if you’ve got two kids in public schools that’s $26,000 a year. Every person in the country with a certain status is eligible for $40,000 of federal benefits a year. That’s one of the reasons we’ve got a welfare crisis right now,” said Brat.
Senate Majority Leader Mitch McConnell agreed to begin a DACA debate before government funding runs out again on Feb. 8. Given the easy passage of the Gang of Eight bill in the Senate in 2013, passage of the Gang of Six bill seems likely.
That would put immense pressure on the House and President Trump to go along, but Brat says 2013-2014 proves stopping a bad bill is not impossible.
Brat should know. His upset primary win over the sitting House majority leader in June 2014 was a major factor in derailing the Gang of Eight plan.
“It did blow up in the House. I think there was an election that had something to do with it in Virginia’s seventh district. I’ve heard rumors,” cracked Brat.
House Judiciary Committee Chairman Bob Goodlatte, R-Va., is sponsoring a far different immigration reform plan. He would grant legal status to DACA recipents with no pathway to citizenship. He would also limit chain migration to spouses and children and ditch the visa lottery altogether. His bill would authorize border wall construction but fails to appropriate money for it.
Brat says commitment to Goodlatte’s approach and a President Trump veto as a backstop gives amnesty opponents plenty of firepower.
“We need to start off strong with the Goodlatte bill. Then you could have a debate between the Goodlatte bill and the Senate. Then the president is the ultimate veto threat, so a lot of it is going to depend on where President Trump comes down on this,” said Brat.
Brat is also one of several dozen House Republicans who have seen the FISA memo from the House Permanent Select Committee on Intelligence that GOP members describe as alarming “alarming” to “stunning” to sure to land people in prison. While specifics are still under wraps, the four-page memo focuses on alleged FISA abuses by the FBI and Justice Department during the 2016 campaign.
The top Democrat on the intelligence panel, Rep. Adam Schiff, D-Calif., says the memo should not be released because the American people will not be able to understand it without the supporting documentation.
Brat says the memo should be made public because the people have the right to make up their own minds about what’s in it and what the fallout should be.
“We’re a democratic republic. The people are our boss. We’re not the boss. Maybe he got his eighth grade civics upside down but I still believe in the good old school stuff where the people are my boss and I’m going to let them see the information, let them make up their mind, and then I’m going to represent them. That’s my job,” said Brat.
Despite the strong adjectives used by other Republicans, Brat says he is not worried about the memo being over-hyped.
“There’s something just very, very wrong at the highest levels of our Justice Department,” said Brat. “I’m not too worried about the over-hype on this. You cannot over-hype any corruption at all in the highest levels of government.”
Jim Geraghty of National Review and Greg Corombos of Radio America applaud the Interior Department for announcing open-air memorials and national parks not requiring staffing will stay open in the event of a partial government shutdown, a very different approach than the Obama administration barricading memorials to war veterans to make a political point. They also hammer Senate Democrats for planning to block a bill that would keep the government open and point out the blatant hypocrisy and deception being employed by the Democrats to justify their tactics. And they tell House Republicans that the FISA memo better be a massive bombshell or else the GOP is going to look pretty silly over the hype. They also tell the GOP that if they want it released to the public, they should just vote on it and be done with it.
Jim Geraghty of National Review and Greg Corombos of Radio America applaud Meghan McCain for calling out Michael Wolff’s many factual errors and questionable journalistic ethics to his face during a discussion of his book on “The View.” They also unload on Republican Missouri Gov. Eric Greitens for conducting an extramarital affair as he prepared to launch his bid for governor and they recoil at accusations that he threatened to release compromising photos of the woman if she revealed their affair. Greitens admits to the affair but strongly denies the blackmail. And they smack their foreheads as President Trump trashes FISA renewal legislation in a tweet before realizing his administration actually supports the bill.