Legislative Blog
J.B. Williams, J.D.
FBI Policies
A Blog about Durham Report
A Bit of Background
The following backgrounds help summarize the author's views on both the general topic: Other and more specifically Durham Report as it relates to that topic.
Brief Summary of Other
Topics here may be related to legal matters but not innately legal. For instance, discussing grocery plastic bags versus cotton cloth bags. The item itself is not legal but many city governments have placed it into legislation.
Summary of Durham Report
The Durham report is the attempt to review what occurred during Crossfire Hurricane. It shows major fails on the part of the FBI to remain non-political and significantly harms their reputation. It makes Watergate look like child's play, even if taken in a light most favorable to the FBI.
Blog Summary
I tried to consolidate all the FBI polices/rules/regulation information here. That way the overview of the topic and how things were handled are here. Other blogs will dive into what happened.
FBI Policies
Published: 2023-07-20
The Durham Report is 316 pages long including title and table of contents pages. It goes through Applicable laws and department and FBI policies; Background facts and prosecution decisions; and Observations. The background facts and prosecution decisions are broken out as follows: Crossfire Hurricane Investigation; FBI's and Department's Disparate Treatment of Candidates Clinton and Trump; Investigative Referral of Possible Clinton Campaign Plan; Carter Page FISA Applications; Alfa Bank and Yotaphone Allegations. The Carter Page FISA applications is broken out as follows: Factual background including 'Probable case', Steele dossier, prior counterespionage investigation of Danchenko and FBI's failure to account for his possible motivations and allegiance, Danchenko's relationship with Charles Dolan, FBI's failure to investigate Charles Dolan's role as source for Steele Dossier, Sergei Millian, FBI's failure to disclose to OI and include in Page FISA application Page's role as source for another government agency, CHS meetings with Papadopoulous/page, and Trump campaign member/ Yahoo news article on Page/Page's offer to be interviewed; Prosecution decisions.
For my blog, I did not necessarily follow their breakdown of items entirely. There was often repeated information among the different areas. I attempt to consolidate information, as well as provide the overview with evidence I found most compelling. I always try to not exclude information just because I don't like where it leads.
The Mueller investigation 'did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.' The 'Office', as the group doing the investigation is called in this report, was given broad discretion to 'investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III.'
The investigative work took place both domestically and overseas. There were more than 480 interviews conducted, more than 1 Million documents obtained and reviewed, more than 190 subpoenas were served under the auspices of grand juries, 7 search warrants were executed, 5 orders for communications with obtained, and 1 request for foreign government under a Mutual Legal Assistance Treaty was made. And there were 2 trials as of April 2023. (My opinion, they claimed to be lacking the ability to prosecute many more but more should have moved forward. They leaned toward the side of believing in good faith that things were accidental and/or that a jury would not believe, or be shown, enough evidence to find them guilty. While this may have been true, it seems they protected their own. It gives the appearance of investigations will be done but none will be punished with more than a slap on the wrist. But we'll put more things in place to avoid these issues in the future. Yet some of the very things put in place due to issues in the 1960s were ignored, and that led to what occurred this time. All of this makes Watergate seem so much less abhorrent.)
The burden for government in criminal laws is to prove every element of a crime 'beyond a reasonable doubt.' The law does not make bad judgment a crime, if it is merely bad judgment. And it is not criminal for political campaigns to under take what may be unseemly or unethical conduct in order to gain a tactical advantage. (While it is truly not criminal, if the public would vote for who seemed to best represent the issues in the way they wanted them to be implemented, rather than voting for the less 'icky' or detestable candidate, it would change campaigns. Currently 'mud is slung' because the news reports it and the public gobbles it up, deciding whom to vote for based upon the candidate that has the least horrid background. Unfortunately I don't see this changing and this is leading down a very sad road. People seem to care little about what will happen once a candidate is in office, rather neither their background is viewed with horror or not. And it isn't even a matter of true horror, but what is claimed by one side of the other.)
The report points out that the Justice Department's foundational norms include 'the principled exercise of discretion; independence from improper influence; treating like cases alike; and an unwavering commitment to following facts and the law.' Sadly these foundational norms are not followed all the time.
Laws and Department/FBI policies
If the law and facts show a sound, prosecutable case, then the unpopularity of the decision is not a factor. (I agree whole-heartedly here. But I disagree with the not moving forward with more cases. I feel like the claim of it being un-prosecutable is often made based upon popularity or unpopularity, rather than based upon purely the law and facts.)
The FBI many not 'collect or maintain information on a United States person solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the Constitution or laws of the United States.' (Although an easy way around this is to encourage social media sites to maintain and collect information that US citizens post.) In 2020, because of the Crossfire Hurricane incident coming to light, there are additional requirements for politically sensitive assessments and investigations and for applications under FISA.
FBI rules state they should use the least intrusive method to investigate. In fact, if 'the threat is remote, the individual's involvement is speculative, and the probability of obtaining probative information is low, intrusive methods may not be justified, and, in fact, they may do more harm than good.' Yet even after Page offered to be interviewed by the FBI, the FBI continued moving forward with FISA applications. Even before that, they failed to look at government records, as well as commercially and publicly available information. So they failed to follow what seems to be a most basic rule.
The steps the FBI is suppose to follow are assessment, preliminary investigation, full investigation. Assessments cannot be arbitrary or groundless speculation. Preliminary investigation may include undercover operations, trash covers, consensual monitoring, pen registers, national security letters, and polygraphs. They can conduct physical searches and monitor where judicial authorization is not required. A full investigation requires 'an articulable factual basis for the investigation that reasonably indicates that ... activity constituting a federal crime or a threat to the national security ... is or may be occurring ... and the investigation may obtain information relating to the activity. So corroborating information from intelligence agencies, or direct connection to known terrorist groups. Yet they went from a comment made by Popodopouls to a full investigation without any corroborating evidence at all.
CHS - Confidential Human Source Guidelines. They must validate including 'documenting the person's criminal record and motivation for providing the information.' The FBI is suppose to review the information at least annually to assure that there is nothing that may materially affect their prior assessment. They are suppose to direct the CHS to be truthful and abide by instructions provided by the FBI. This is to be told to the CHS while another agent is present. Yet they had, at the least, a sub-source that had previously been under investigation for counter terrorism. And sources for that individual with strong ties to the opposing political party and candidate
Congress has directed that a person or entity is assigned to ensure that finished intelligence products are 'timely, objective, independent of political considerations, based upon all sources of available intelligence, and employ standards of proper analytic tradecraft.' In fact the intelligence Ombudsman documented, in 2020, individuals that took 'willful actions that ... had the effect of politicizing intelligence, hindering objective analysis, or injection bias into the intelligence process.' In fact the purpose of intelligence is to 'provide objective, unbiased, and policy-neutral assessments.' To paraphrase Neil Wiley, a former intelligence official, "If we lose that objectivity, or even are perceived to have lost it, we have endangered the entire reason for us to exist.'
Due to the Crossfire Hurricane debacle, some upgraded protections have been added. To begin a investigation of politically sensitive activities there are additional approval requirements. In handling CHS's they must disclose if they are reasonably believed to be a current or former subject or target of the FBI. The Attorney General or Deputy Attorney General must approve of any CHS to target a federal elected official or political campaign .. for the purposes of investigating political or campaign activities. (I see a narrow, very fine line being drawn here. Where as to Crossfire Hurricane, they could have made a claim that they were originally investigating non-campaign related activities and merely stumbled upon information later. And limiting what and how this information was presented could very well have led to the same location that it did anyway.)
FISA. For installation and use of pen register and trap and trace devices, considered relatively unintrusive, FISA 'requires the information likely to be obtained is relevant to an FBI investigation. (Relatively low bar here.) For electronic surveillance, among the most intrusive technique, the requirements are more extensive. It may be authorized if there is 'probably cause to believe that the target of the surveillance is an agent of a foreign power. If the individual is a US person, then there must be some showing that the individual at least may violate the laws of our society and the individual must be knowingly engaged in the specified conduct. In fact the activities must currently involve or be about to involve a violation of Federal criminal law. In fact these were put in place because of surveillance of Dr. Martin Luther King. They based their surveillance upon his association with members of the Community Party, which does not meet the standard for surveillance under the existing guidelines. The FBI official must certify that the 'significant purpose of the electronic surveillance is to obtain foreign intelligence information, and that it cannot be obtained by normal investigative techniques. (Now I truly doubt if they certify this and it later comes out that it was a lie, that there will be any punishment for it whatsoever.)
Over the years the FBI has adopted procedures for ensuring accuracy in FISA applications. These procedures are known as the Woods Procedures, after their principal author. A review of the Page and other FISA applications 'raise concerns about compliance with the Woods Procedures and the accuracy and completeness of the information in FISA applications.' The new procedures now require both an agent and a supervisor to affirm that the Office of Intelligence (OI) has been apprised of all information that might reasonably call into question the accuracy of the information in the application. And an FBI field office not involved in the investigation must review the case file and evaluate the proposed filing for accuracy and completeness. Sounds good, but ... the FBI Headquarters was running Crossfire Hurricane. And there were already Agents and Supervisors knowing what was in the FISA applications and moving forward. All that is needed in the future is less documenting so that not supporting information or doubts are not written anywhere. There was already a do not document rule in place during the Crossfire Hurricane investigation. So a great deal of the information is 'foggy' or 'not recallable' by many involved. A mere few individuals that documented things or chatted across internal networks where chats are saved off provided much more information that led to more coming to light than otherwise would have, at least in my opinion.
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