Senate Fumbles Chance to Hold Rosenstein Accountable

Imagine being in a poker game with the former Deputy Attorney General Rod Rosenstein. If you lay a heavy bet on a hand he knows to be weak, a condescending grin will connect one ear to the other. You can easily tell when he thinks you’re stupid because he expresses contempt with his signature giggle which is accompanied by a condescending lecture.

Rosenstein deployed his smirk and giggle frequently as puny senators asked their puny questions in a feeble pursuit of an “Aha!” moment during his recent testimony before the Senate Judiciary Committee. Oh, mistakes were made, he conceded. It may even be necessary for Attorney General William Barr to revise some procedures and protocols. Rosenstein easily batted away Senate concerns about the many lies in the FISA application used to spy on Trump campaign volunteer Carter Page.

After all, how was Rosenstein supposed to know he was being lied to by the FBI? As frequently as Rosenstein said he was “accountable,” his slippery answers evaded any responsibility for the Russian collusion hoax.

Rosenstein maintained a look of detached amusement as Senator Lindsey Graham (R-S.C.) postured with “outrage,” knowing that the committee would never pin the blame on him. Rosenstein’s misconduct was low-hanging fruit in plain sight. But Republican senators were more interested in reading (for the millionth time) text messages from Peter Strzok.

Ernst Asks the Key Question

But one senator got close. Using her common sense, a non-lawyer from Iowa asked a question that caused Rosenstein’s smug smile to temporarily evaporate. He was impressed enough to compliment her on her “good question.”

It struck Senator Joni Ernst as odd that the FBI would continue a FISA warrant after it leaked that Carter Page was being surveilled. In April 2017, the Washington Post reported, “The FBI obtained a secret court order in October 2016 to monitor the communications of a former adviser to presidential candidate Donald Trump, part of an investigation into possible links between Russia and the campaign, law enforcement and other U.S. officials said.”

The story goes on to quote Page’s response: “This confirms all of my suspicions about unjustified, politically motivated government surveillance . . . I have nothing to hide.”

The same month, somebody leaked the FISA surveillance warrant against Page, the FBI was scrambling to recover from a number of critical setbacks in its effort to pin Russian collusion on the Trump campaign. In January 2017, agents interviewed Sergei Millian, the primary subsource for Christopher Steele, and he disavowed the entire dossier. The FBI used undercover spies on several members of the Trump campaign, including George Papadopoulos, Page, and at least one “high-level” member of the Trump campaign, Sam Clovis. These contacts only further disproved their collusion hypothesis. Also in January, the president’s then-private attorney denied and later disproved the essential scene in the hoax: that he traveled to Prague to pay the hackers who stole the DNC emails.

So in the face of a collapsing factual justification for the Russia collusion investigation, why does it matter so much that Page knew about the surveillance? A target who knows his phones are tapped is unlikely to continue to generate candid evidence of criminal wrongdoing.

“So why continue to spy on Page?” Ernst asked. Rosenstein mumbled something about the FBI turning up new leads in the case that justified further surveillance of Page. Unfortunately, Ernst didn’t ask the next follow-up question which would have exposed the crux of Rosenstein’s misconduct: “Why didn’t you just have a couple of FBI agents interview Page instead of spying on him?”

On the face of what we are told, the FBI’s actions are illogical as a matter of investigative efficiency. It cost a lot of money and effort to apply for and renew warrants to spy on Carter Page. The month before the very first approved FISA warrant, Page had already figured out that the FBI was investigating his Russian contacts. So Page offered to sit for an interview with the FBI over those Russian contacts. The FBI ignored this offer in spite of the fact that Page published this offer in the pages of the Washington Post.

Page wasn’t a Russian spy. He was an American spy and the CIA used his trips to Russia to gather intelligence. As noted by the Justice Department inspector general, Page was so reliable that the CIA cleared him to receive sensitive operational information so he could better know what to listen for when he went to Russia. It’s precisely that fact that caused FBI attorney Kevin Clinesmith to doctor an email from the CIA so it appeared that the CIA told him that Page was not a source. Had the FBI revealed to the FISA court that Page was a willing and reliable source for the U.S. government, all spying warrants should have been denied as unconstitutional.

Rosenstein’s Lie

And this leads us to why Rosenstein is really at fault for the illegal Carter Page domestic spying operation. On page 90 of the FISA renewal application Rosenstein signed, the Department of Justice certified to the court that, “the foreign intelligence information sought by the authorities requested herein cannot be reasonably obtained by normal investigative means.” On page 100 of the original FISA renewal, Rosenstein certified that he found the application met the criteria and requirements of a FISA warrant.

Justice Department policy required the FBI to use the least-intrusive method for gathering information. It’s not just a matter of efficiency. These wiretaps and spying get to the most personal information available: Google search history, emails, texts, pictures, location data, even audio picked up through the target’s own phone. FBI agents with a FISA warrant could potentially listen to or even watch Page having sex with his spouse through his wiretapped electronics. It potentially allowed the FBI to drool over private pictures on Page’s phone. So it’s illegal and unconstitutional to spy when the information can be obtained through less-intrusive means.

Rosenstein should have known that Page wanted to cooperate. The September 2016 offer appeared in the pages of the Washington Post. Page’s April protestation that he had, “nothing to hide,” should have renewed interest in his voluntary cooperation. What’s more, as Ernst instinctively suggested in her question, once the secrecy of the spying was blown, there’s no longer any reason not to interview Page. Rosenstein immediately would have known the unconstitutional nature of the entire operation just by asking why the FBI wasn’t interviewing Page. That was the one thing his oversight should have caught. When he didn’t ask that question, it made his certification to the FISA court a lie.

We still don’t know much about the Russian collusion hoax. We don’t know the full extent to which the Obama Administration spied on the Trump campaign. One overlooked portion of the inspector general’s report on the Carter Page FISA application suggests that the FBI had a network of spies around and even within the Trump campaign, “In our review, we also learned that, in 2016, there were several other individuals who had either a connection to candidate Trump or a role in the Trump campaign, and were also FBI confidential human sources. Some of these sources were known to and available for use by the Crossfire Hurricane team during the 2016 presidential campaign.”

Where Is the Accountability?

Thus, there were actually FBI spies in and around the Trump campaign that the Crossfire Hurricane team did not use or know. Just exactly how many investigations did the FBI launch to stop Trump?

Papadopoulos has suggested that the spying operations extended to other candidates, not just Trump. We still don’t know what the “insurance policy” was that Strzok referenced in his text to Lisa Page. Mueller’s team curiously never interviewed Wikileaks’ founder Julian Assange as to what he says his source was for the hacked emails. We can only hope that if Assange is extradited to the United States, the Justice Department will not keep him in the same cell that was used to keep Jeffery Epstein safe.

And we can add to this list of mysteries the question as to why so many FBI lawyers and agents would go to so much trouble to keep a FISA warrant open on Carter Page. One thing we can know, however, is that if the FBI passed on an interview with Page and lied to keep his warrant going, it was using the surveillance to look at somebody besides Page.

After leaving the Justice Department, Rosenstein joined the former attorney general Sally Yates and former DNI chief Dan Coates at the prestigious King & Spalding law firm. That happy fate won’t act as much of a deterrent to anyone planning to cut corners on a current FISA spying warrant. If we’re going to move forward with a FISA process, need have to be consequences. Either we scrap FISA or Rod Rosenstein needs to be punished for facilitating a fraud on the FISA court.

If there are no consequences for this fraud, then the FISA process has become an unconstitutional joke.

About Adam Mill

Adam Mill is a pen name. He works in Kansas City, Missouri as an attorney specializing in labor and employment and public administration law. He graduated from the University of Kansas and has been admitted to practice in Kansas and Missouri. Mill has contributed to The Federalist, American Greatness, and The Daily Caller.

Photo: Jim Lo Scalzo-Pool/Getty Images

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