How the Criminal Referral on Christopher Steele Corroborates the Nunes FISA Memo

COMMENTARY Crime and Justice

How the Criminal Referral on Christopher Steele Corroborates the Nunes FISA Memo

Feb 14th, 2018
COMMENTARY BY
Hans A. von Spakovsky

Election Law Reform Initiative and Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues – including civil rights, civil justice, the First Amendment, immigration.
Christopher Steele, the former MI6 agent. Victoria Jones/ZUMA Press/Newscom

Key Takeaways

A criminal referral on Christopher Steele is now declassified -- and it helps corroborate the claims in the Nunes FISA memo.

Contrary to what he told the FBI, Steele admitted he “gave off the record briefings to” journalists about the dossier “in late summer/autumn 2016.”

This criminal referral, like the Nunes memo, calls into serious question the judgment and competence of senior FBI and DOJ officials.

A criminal referral on Christopher Steele by Sens. Chuck Grassley (R-IA) and Lindsey Graham (R-SC), sent on Jan. 4 to the Justice Department and the FBI, is now declassified -- and it helps corroborate the claims in the Nunes FISA memo.

Grassley and Graham want Steele investigated for providing “false information” to the FBI, which would be a violation of 18 U.S.C. §1001 -- the same statute that former National Security Adviser Michael Flynn was charged under. But they also want DOJ and the FBI to investigate whether the representations the FBI made to the secret Foreign Intelligence Surveillance Act (FISA) court to obtain a warrant that started the surveillance of the Trump transition team “were in error.”

That is a polite way of saying that the FBI may have misled the court -- a very serious charge.

The Nunes memo said that the Steele dossier -- the opposition research prepared by former British intelligence agent Christopher Steele and paid for by the Clinton campaign and the DNC through Fusion GPS -- was an “essential” part of the FISA application. This has been disputed by Democrats on the House Intelligence Committee, led by Adam Schiff.

But the Grassley-Graham criminal referral says that the Senate Judiciary Committee’s review of the FISA application also shows the “bulk of the application consists of allegations” that were disclosed to the FBI by Mr. Steele and “are also outlined in the Steele dossier.” The application “appears to contain no additional information corroborating the dossier allegations.”

This is an important point, since the dossier was, according to James Comey, “salacious” and “unverified.” In other words, the FBI did not check the veracity of its claims.

According to the referral, when James Comey was asked why the “FBI relied on the dossier in the FISA applications absent meaningful corroboration -- and in light of the highly political motives surrounding its creation,” Comey said the FBI was relying on Steele because of his “past work” for the FBI.

The problem, according to Grassley and Graham, is that while the FBI told the FISA court that the dossier had been compiled by a law firm, it failed to tell the court that the “ultimate clients” who paid for it were the Clinton campaign and the DNC.

The bottom line, according to the referral:

[The] FBI relied on admittedly uncorroborated information, funded by and obtained for Secretary Clinton’s presidential campaign, in order to conduct surveillance of an associate of the opposing presidential candidate. It did so based on Mr. Steele’s personal credibility and presumably having faith in his process of obtaining the information.

Yet, they write:

[T]here is substantial evidence suggesting that Mr. Steele materially misled the FBI about a key aspect of his dossier efforts, one of which bears on his credibility.

What was the material misrepresentation? We don’t know -- the next paragraph in the criminal referral is blacked out.

According to the referral, in its original application, the FBI tried to support the claims made in the dossier by citing an article by Michael Isikoff published at Yahoo News that contained much of the same information that Steele had supposedly “discovered.” The FBI said it did not believe that Steele was the source for the information in Isikoff’s article, even though the Senate Committee said “public reports, court filings,” and other information indicate that Steele was the source and also provided dossier information to “numerous media organizations.”

Although the FBI eventually suspended its relationship with Steele because of his “unauthorized disclosure of information to the press,” it continued to rely on his supposed “credibility” even after that suspension when filing renewal applications with the FISA court. In other words, the FBI continued to rely on his credibility in trying to convince the FISA court to give it another surveillance warrant even though it knew Steele had lied to the FBI when he had told the Bureau he had “not shared his information with the press.”

The Senate Committee reviewed sworn statements made by Steele in a libel suit brought against him in England. Contrary to what he told the FBI, Steele admitted he “gave off the record briefings to” journalists about the dossier “in late summer/autumn 2016.” That included the New York Times, the Washington Post, Yahoo News, the New Yorker, and CNN in September -- before the first FISA application in October.

After this was first “publicly reported in the U.S. media in April 2017,” did the FBI, in FISA warrant renewals filed after that, disclose in writing to the FISA court that Steele had lied about his media contacts?

No, it didn’t.

The FBI also failed to tell the FISA court about the information it received from a Justice Department official, Bruce Ohr, about how “desperate” Steele was to see that Trump was not elected:

None of the information provided by Mr. Ohr in his interviews with the FBI was included in the FISA renewal applications, despite its relevance to whether Mr. Steele had lied to the FBI about his contacts with the media as well as its broader relevance to his credibility and his stated political motive.

Accordingly, the FISA applications submitted by the FBI were “either materially false” or “Mr. Steele made materially false statements to the FBI.” The “apparent deception” by Steele “posed significant, material consequences on the FBI’s investigative decisions and representations to the court.”

The “FISA application relied more heavily on Steele’s credibility than on any independent verification or corroboration for his claims.” Thus, the “basis for the warrant authorizing surveillance on a U.S. citizen rests largely on Mr. Steele’s credibility.”

That is why Senator Grassley and Graham are asking the Justice Department to investigate if “Steele provided false information to the FBI and whether the FBI’s representations to the court were in error.”

This criminal referral, like the Nunes memo, calls into serious question the judgment and competence of senior FBI and DOJ officials. Both the FBI and DOJ have a lot of explaining to do.

This piece originally appeared in PJ Media