FISA investigation needed to end American mistrust in government

FISA investigation needed to end American mistrust in government
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The decision of the Justice Department inspector general to investigate the FBI over its handling of the Russian investigation is long overdue. At a time when the country is becoming more divided over allegations of misconduct by our government officials, there is little hope for reconciliation so long as the public feels it is being played by both sides. We are likely to continue to disagree over our conclusions, but we can at least agree on the underlying facts. That is why there is a compelling need for public and independent reports from both the special counsel and inspector general.

Michael Horowitz, the Justice Department inspector general, announced that he will investigate the allegations of abuses of the Foreign Intelligence Surveillance Act (FISA) during the Obama administration. The scope of the probe will cover officials in both the Justice Department and the FBI as related to a “certain U.S. person.” This includes reviewing what “was known to the DOJ and the FBI at the time the applications were filed from or about an alleged FBI confidential source.” The “certain U.S. person” appears to be Trump campaign adviser Carter Page.

The greatest failure of our government has been not the underlying allegations of misconduct but the failure of our elected officials to retain the trust of the public that they are seeking the unvarnished truth in these scandals. Instead, the public has been given endless spins by both parties. While Democrats rightfully criticized Trump supporters for belittling or opposing the special counsel investigation, they have done the same thing with regard to the FBI controversy. Democrats have dismissed legitimate concerns over not just the origins of the dossier but its reliance (to any degree) by our intelligence services.

For months, the Clinton campaign denied any connection to the dossier compiled by Fusion GPS and former British spy Christopher Steele. In October, when confronted by journalists, the Clinton campaign finally admitted that it did indeed fund the dossier research. Clinton campaign lawyer Marc Elias has been accused of not only lying in his denials of any connection to the campaign but sitting next to Clinton campaign chairman John Podesta as the latter also denied any campaign role to investigators. Moreover, Steele reportedly shopped the dossier to media outlets and had told one official that he despised Trump and wanted to keep him from being elected president.

The fact is that there are serious concerns raised on both sides. These are allegations that have seriously undermined the public faith in our government. The diametrically opposing reports of the majority and minority on the House Intelligence Committee has only magnified those doubts among citizens. Consider a few examples from both sides on the FBI investigation.

The “wiretapping” spin

In March 2017, Trump was roundly ridiculed for saying that the Obama administration “wiretapped” his campaign. This was portrayed as paranoia or diversion by the media. Obama’s director of national intelligence, James ClapperJames Robert ClapperGeraldo Rivera: Comey, Clapper, Brennan should be 'quaking' in their boots over Barr investigation Trump declassification move unnerves Democrats Comey: 'The FBI doesn't spy, the FBI investigates' MORE, went public to deny any such surveillance and said he would have certainly known of a "court order on something like this.” It is now confirmed that there was not a single but multiple orders to intercept communications of Carter Page and others associated with the campaign. Ultimately, no evidence of criminal conduct was presented in the form of an indictment against Page, despite the renewal of the surveillance.

The Free Beacon spin

Once the funding of the Clinton campaign was belatedly disclosed, media ran with a spin that it was a conservative website, the Washington Free Beacon, that first funded the research. That appears untrue. The Free Beacon paid for research on Trump (and Clinton) but ended its funding in spring 2016. The Clinton campaign later paid for the dossier research, and Steele was retained after the closure of the Free Beacon research. It now appears that the dossier was entirely paid for by the Clinton campaign, despite repeated claims to the contrary on networks and cable shows.

The corroboration spin

The Steele dossier has been portrayed by Trump critics as “largely corroborated” by subsequent investigations. In fact, the Steele dossier was found by the FBI to be largely uncorroborated before it was used to secure the Page surveillance order. Steele was given information by individuals associated with Russian intelligence, and some details have already been shown to be false or inaccurate.

Steele wrongly identifies people that Page met with in July 2016, even though that consulting work by Page was open and lawful. Steele also wrongly claims that Trump counsel Michael Cohen met with Russians in Prague when there is no evidence of Cohen ever going to Prague. With Clinton communications already leaking out, Steele said that it was not due to hacking but to intercepted calls. It further downplayed Russian hacking success of primary targets.

The concealment spin

The FBI was wrong not to reveal the fact that the dossier was funded by the Clinton campaign. However, it is not true that the FBI entirely hid the source of the information. The FBI did reveal that the dossier was from a political source. Democratic members of the House Intelligence Committee have reported that the FBI “repeatedly informed the court about Steele’s background, credibility, and potential bias.”

The reliance spin

Republicans have maintained that, absent the Steele dossier, there would not have been a surveillance order. Democrats have responded that there was ample evidence submitted beyond the dossier. It certainly seems likely, given the length of the application and the renewals of the order, that more information was submitted to the court on the suspicions concerning Page. The renewals were ordered by four different judges, all of whom were appointed by Republican presidents. Republicans have also suggested that the Page surveillance was ordered as part of a “deep state” effort tied to the election. However, it appears that the underlying investigation preceded Page’s involvement in the campaign.

The concerted effort on both sides to spin this scandal has destroyed the trust of citizens in what is being reported from politicians and press alike. This political crisis is ultimately a crisis of faith. We have lost faith in our government and remain deeply divided in what actually occurred before and after the election. If we are to restore the lost faith in our government, the public will need to see full and independent reports of the underlying facts. That is why this investigation is long overdue. Americans are is not longing for indictments, just for information they can trust. It is time to end the spin cycle in Washington.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.