BipHoo Company / Flickr Mueller x27 s team met with...
BipHoo Company / Flickr

Yesterday, Attorney General Jeff Sessions appointed the U.S. Attorney in Utah to investigate whether the FBI acted improperly when it obtained a surveillance warrant against foreign policy advisor Carter Page.  It takes no reading between the appointment lines to realize that the investigation is really into use of the Steele dossier as support for the FISA warrant against Page.  The drumbeat for this GOP investigation has been thumping since the president’s inauguration but its pace has quickened as Special Counsel Robert Mueller peels and releases layer upon layer of evidence into his probe of ties between the Trump campaign and Russia’s interference in the 2016 election.  It did not take much political savvy to anticipate Sessions would make this investigation a reality when President Trump tweeted this two weeks ago:

“The Mueller probe should never have been started in that there was no collusion and there was no crime. It was based on fraudulent activities and a Fake Dossier paid for by Crooked Hillary and the DNC, and improperly used in FISA COURT for surveillance of my campaign.”

In my 25 years as a federal prosecutor, I cannot think of a federal investigation more misguided than this.  And, while I cannot speak for all prosecutors, I can comfortably say that most prosecutors are nervously chuckling at the success Congressional republicans have had at turning a bunch of nothing into a lot of political something.  They have pummeled the Steel dossier into the ground, fertilized it, and then pulled it up by its roots for another round of baseless but effective attacks on the FBI and the Department of Justice.  So, it’s time to finally understand, from a prosecutor’s perspective, how the dossier was used in the Page surveillance warrants and why the GOP is misusing it now as a roadblock to the Mueller train.

Most importantly, critics of the Steele dossier act as though the contents of the dossier are first-hand accounts of events witnessed by Steele.  They are not.  Instead, the dossier is a collection of memos written by Steele in which he recounts what other people told him.  Each passing week brings public confirmation of many assertions made by witness interviews in the dossier and not a single claim in the dossier has yet to be proven untrue.  However, even if some claims in the dossier are eventually shown to be inaccurate, that would not negatively reflect on Steele’s credibility, given that he was only the scribe, not a witness to claims made in the dossier.

While both parties agree that portions of the dossier were included in the surveillance warrant against Carter Page, it is the president, congressional republicans, and right-wing talking heads from Sean Hannity to Alex Jones who are clutching their pearls, claiming that use of the dossier was improper because its contents had not been proven with complete certainty.  I get why Fox and Friends hatched this talking point and why it resonates with members of the public.  People understandably think that if information is going to be used to wiretap someone, it damn well better be verified and 100 percent accurate.  That’s a reasonable thought, but it’s wrong.

In order to get a surveillance warrant that authorizes wiretapping a person’s telephone calls, a prosecutor has to prove to a federal judge that there is a fair probability that tapping the calls will reveal some evidence of a crime.  The legal standard of proof to get a wiretap is known as “probable cause” and it is a much lower threshold than the “beyond a reasonable doubt” standard that is needed to convict someone of a crime.  The U.S. Supreme Court has said that when a judge considers whether the government has established probable cause for a warrant, the judge should take a practical and non-technical approach because probable cause deals with probabilities, not “hard certainties.”

The type of evidence that can be used to obtain a surveillance warrant is broad and very different from the type of evidence that can be used in a trial to convict someone of a crime.  Wiretap warrants can contain an anonymous telephone tip, or a tip from a citizen who walks into a police station, or even information from a convicted criminal who is attempting to cut a deal that will benefit him in his own criminal case.  None of these types of evidence are unequivocally true, but these types of evidence may be legally used to get a surveillance warrant.

So, if a surveillance warrant can legally contain evidence from a convicted felon who is cooperating to cut himself a deal, it can certainly contain evidence from a senior member of the Russian Foreign Ministry, a former top level Russian intelligence officer still active in the Kremlin, and a Russian-born associate who was close with then candidate Donald Trump.  The Steele dossier contained interviews with all these people.  They were all sources of Christopher Steele, a well-respected retired British Intelligence Officer and author of the dossier that has been has been both lauded as a 21st century political bible and trashed as a slanderous rag.

The GOP’s second line of attack on the Steel dossier tries to convince the public that it was improper to use the Steele dossier in a surveillance warrant because Steele had been hired by the DNC, and therefore none of his research was reliable.  From a prosecutor’s perspective, this is just wrong.  Like the information that comes from a convicted felon sitting in prison, who cooperates to get out of jail early, this information is perfectly legal to use in a surveillance warrant.  All that is required is that the warrant inform the judge of the person’s potential bias.  Even Trump tool Devin Nunes has grudgingly acknowledged that the Carter Page surveillance warrant informed the judge that Steele was working for a political entity and that his research was politically motivated.

The Democrats’ House Intelligence Committee response to the Nunes memo established that the Steel dossier was a small part of a much larger surveillance warrant on Carter Page.  So, if the warrant included information related to Page’s 2004 to 2007 presence in Moscow working on a transaction for a Kremlin-nationalized gas corporation, or Page’s 2013 meetings with an alleged Russian intelligence officer in which Page provided U.S. documents related to sanctions against Russia and the Russian officer tried to recruit Page as a Russian intelligence asset, or evidence obtained from a 2014 surveillance warrant against Page, or the June 2016 foreign policy meeting with the Prime Minister of India in which Page praised Vladimir Putin as a more effective leader than the U.S. president and alluded to a reduction in sanctions against Russia if he remains an advisor after Trump is elected, or Page’s July 2016 speech in Moscow in which he advocated for reducing sanctions against Russia, or Page’s meeting with the Russian ambassador later in July 2016, or Page’s false denials about meeting with Russian officials . . . if the warrant application included that information, then there was more than ample probable cause to issue the warrant and the Steele research, whether accurate or not, is inconsequential to the validity of the surveillance warrants on Carter Page.

What is perhaps most perplexing about Trump’s incessant attacks on the Steele dossier, and the corresponding investigation announced yesterday by Jeff Sessions, is the now well-accepted understanding that the investigation into connections between the Trump campaign and Russian election interference was initiated by Trump National Security Advisor George Papadopoulos’s drunken disclosure to an Australian diplomat that the Trump campaign had Russia-sourced dirt on Hillary Clinton.

The problem for Democrats is that the law related to surveillance warrants is complex and is not intuitive in a way the public can easily understand.  Addressing the issues related to GOP allegations of impropriety does not come quickly or simply and is not amenable to a soundbite that can be absorbed when skimming a headline or half-listening to the news while preparing dinner.  This works in the president’s favor and he capitalizes on this predicament by repeating phrases like “fake dossier” and “FBI bias.”  Debunking these claims takes time and effort, both of which are in short supply when there are stories of porno stars, and $31,000 dining tables, and a fired Secretary of State who called the president a moron, and a wife beater in the White House, and . . . .

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