Legislative Blog
J.B. Williams, J.D.
Disparate Treatment of Candidates
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
They looked into how the Clinton campaign was treated post receipt of the Clinton Plan Intelligence, issues surrounding possible bribes from foreign entities, and other issues involving the Clinton Foundation. This was compared to how they treated the Trump campaign post receipt of vague statements made by an individual with the Trump campaign to Australian diplomats during an informal meeting and receipt of the Steele reports (after the handling being told that Steele was working for the same entity hired by the Clinton campaign law firm to do opposition research.)
Disparate Treatment of Candidates
Published: 2023-07-26
Disparate treatment of Candidates Clinton and Trump
In the course of the Office's investigation, they 'learned of allegations involving possible attempted foreign election influence activities associated with entities related to Clinton, in addition to allegations related to Trump.' Prior to Clinton announcing her presidential candidacy, the FBI learned that an individual was being sent to make a contribution to the Clinton campaign as a way to influence Clinton should she win. The individual was not a US person, so the FBI sought FISA coverage within 4 months of receipt of the information. There was great concern about possibly having a Presidential candidate on tape. The FISA was conditioned upon the requirements that the FBI give defensive briefings to various public officials and candidates of both political parties, including Clinton. They delayed for months because there were concerns that a political candidate was involved and that it might interfere with a presumed future presidential campaign. So it was 11 months after receipt of the data before FISA were approved. (Interesting because I wander who was putting stipulations, the FBI attorneys or the Judge on the FISA approval. Either way, if the same individuals were involved in the Trump FISA's, where was their concerns?)
The FBI also received information concerned another foreign government entities attempt to influence Clinton from the same CHS. This was not opened as a separate investigation but included under the prior open investigation involving the first foreign government. CHS was going to meet the individual at a Clinton fundraiser in January 2016, but backed out when it was discovered Clinton would not be personally attending. Supposedly the CHS made a $2700 campaign contribution on behalf of the individual. Records do not show CHS making a contribution but someone close to CHS making one. No defensive briefings were provided regarding this 'threat'. (In my mind, this was due to it being included in another already open investigation where Clinton was being advised. I highly doubt that information was withheld and separated out.)
In January 2016 three different field offices opened investigations into possible criminal charges involving the Clinton Foundation. They had a joint meeting and Section Chief Hulser said it as 'poorly presented' and 'insufficient predication for at least one of the investigations due to its reliance on allegations contained in a book.' He declined to prosecute but claimed others could. [The Office's review showed the transactions in question totaled hundreds of thousands of dollars.] OGC Section Chief found the Department's reaction to the Clinton Foundation briefing hostile. In February 2016 another meeting was held regarding the Clinton Foundation investigations. McCabe chaired the meeting. McCabe initially directed all of the offices to close their investigations. There were objections, and it was agreed to reconsider the final disposition. McCabe was described as 'negative,' 'annoyed,' and 'angry.' McCabe felt there was nothing there; and Campbell advised that for any overt investigation the Deputy Director's approval would be required.
In May, New York Assistant Director Rodriguez was told by Coleman that Director Comey directed a 'cease and desist' from the Foundation investigation due to undisclosed counterintelligence concern. The Office could not determine what this counterintelligence was. In August 2016, the remaining two FBI offices were directed to close their cases and consolidate them into the New York case. The New York office was given permission to seek subpoenas from the US Attorneys in Southern and Eastern Districts of New York. Neither District would issue subpoenas when request, while previously they expressed support for the investigation.
Flash forward 1 year and the FBI did not do defensive briefings with the Trump campaign. The FBI's claim was they did not know who on the Trump Campaign may have been targeted to work with Russia. But honestly they had no idea if anyone on the Clinton campaign would or was targeted either. Furthermore, the defensive briefings are meant to reduce the likelihood of success of foreign interference since candidates and public officials would be less likely to interact with representatives of Foreign Governments if this were a known issue. And the information concerning Clinton came from a trusted CHS that had previously provided valid, useful information. While the Trump issue was provided as an off-hand remark during an informal meeting, only hinted at an issue, and, based upon the source of the information, was likely not useful in and of itself. Furthermore, a mere conversation with Papadopoulos could have resolved the issue entirely.
The Clinton Foundation matters were opened as preliminary investigations, at least 2 of them. This was due to the political sensitivity and the reliance on unvetted information. While the Trump matter was opened as a full investigation, although it was predicated upon similarly unvetted information. And the FBI was having a long time CHS meet with 3 Trump campaign insiders and record the conversations.
Within 2 days of receipt of the Steele Reports the information was included in FISA applications, and none of the information provided was questioned or investigated in anyway. In fact the very Attorney who worked on the FISA application for the non-US person in the Clinton matter, questioned the Page FISA application. He raised concerns about Steele's personal bias, the unknown source, and the use of it in the FISA application. He felt it was bad from a policy perspective. Agent Page's response was the FBI accepts information from biased sources all the time; it would look bad to pull a punch due to political concerns; believe its good info and source; and leaks are continuing to trickle. The FISA approval came less than 1 month after receipt of the Steele Reports. Remember the target here was a US citizen.
The difference between the FBI's handling of the Clinton matters and the Trump matters is stark. And can be summed up in the following: Page: 'One more thing: [Clinton] may be our next president. The last thing you need [is] going in there loaded for bear. You think she's going to remember or care that it was more dob than fbi? Strzok: 'Agreed..'
Referral of Possible Clinton Campaign Plan
The Clinton Plan intelligence was declassified in September 2020 and conveyed to the Senate Judiciary Committee. In late July 2016, U.S. intelligence agencies received information alleging that U.S. Presidential Candidate Hillary Clinton approved a campaign to stir scandal against U.S. Presidential Candidate Trump. The plan was to tie Trump to Putin through the Russians hacking of the Democratic National Committee. President Obama was subsequently briefed, including on the alleged approval of Hillary Clinton on July 26, 2016. On September 7, 2016, U.S. Intelligence forwarded an investigative referral to FBI Director Comey and Deputy Assistance Director of Counterintelligence Strzok regarding "U.S. Presidential candidate Hillary Clinton's approval of a plan concerning U.S. Presidential candidate Donald Trump and Russian Hackers hampering U.S. elections as a means of distracting the public from her use of a private mail server."
First, the Clinton Plan intelligence suggests private actors associated with the Clinton campaign were seeking to promote the false narrative to the public and U.S. government agencies that Trump was tied to Russia. In fact, the FBI and other government agencies received the following that were originated or funded by the Clinton campaign or affiliated persons: Steele Dossier reports, Alfa Bank allegations, and the Yotaphone allegations. This prompted the Office to consider whether there was in fact such a plan by the Clinton campaign, and if so, whether part of the plan was to intentionally provide false and/or misleading information to the FBI or other agencies to further the plan.
Second, the Clinton Plan intelligence materials were considered and relied on by Crossfire Hurricane, as well as other agency investigations. Crossfire Hurricane used information paid for and/or provided, at least indirectly, by the Clinton campaign in obtaining FISA warrants. It is arguably relevant that the Steele Dossier reports and Alfa Bank allegations were part of a political smear campaign, and they were using the federal government's law enforcement and intelligence agencies as resources to support that smear campaign.
At least by August 2016 an email went out regarding the Clinton plan, and the most senior intelligence analyst on Crossfire Hurricane were included. No FBI follow up actions were seen regarding the email. No later than September 2, 2016 FBI Assistant Director for Counterintelligence Priestap's handwritten notes evidence he was aware of the Clinton Plan intelligence. Priestap declined to be interviewed by the Office. On September 7, 2016 the CIA completed a Referral Memo in response to the FBI request for information reviewed by Fusion Cell. This was directed to FBI Director and Deputy Assistant Director Strzok. "Russian hackers hampering US elections as a means of distracting the public from her use of a private email server."... 'Guccifer 2.0 claimed credit for hacking the Democractic National Committee (DNC) this year.' No one responded to this email, nor did anyone interviewed by the Office recall the email. (Seems to be more of a read and ignore information that does not agree with what I already think syndrome.)
In late September 2016, US national security officials, including Comey and Clapper, received an intelligence product on Russian interference in the 2016 presidential election that included the Clinton plan intelligence. Even with all of this evidence coming to various individuals associated with Crossfire Hurricane, it did not appear that this was even considered in their investigation of the Trump campaign. It was stated as merely one data point. And while some FBI personnel appeared to know the Steele Dossier reports were likely funded or promoted by the Clinton campaign, that was not considered to be an issue. The London meeting notes from July 5, 2016 reflect that HC was seeking information. When questioned about HC it was stated that no one other than Hillary Clinton came to mind for those initials. In reviewing the Yahoo article, Strozk said that 'the Steele reports should be viewed as intending to influence as well as inform' on September 23, 2016. And on October 11, 2016 Strzok message to Clinesmith noted the 'unnamed client' was 'presumed to be connected to the [Clinton] campaign.'
Even with all of the above information, Crossfire Hurricane failed to advised the OI attorneys of the Clinton Plan. And because of this, they never provided that information to the FISC either; even though they relied heavily upon the Steele Reporting in the FISA applications. In fact, it appears that no one at the FBI even considered providing the Clinton Plan intelligence in either case. Furthermore, several lower level individuals working on Crossfire Hurricane expressed surprise and dismay regarding the Clinton Plan intelligence. One Supervisory Special Agent so much so that he became visible upset and emotional when told about it. When advised it had not yet been verified, he stated he should have been informed of it regardless. Former FBI General Counsel Baker stated he had not previously been aware of the Clinton Plan intelligence. Had he been so during Crossfire Hurricane, he would have viewed the FBI Steele Dossier reports and Sussman purported secret communications between Trump and Alfa bank in a much more skeptical light.
There were emails that support the idea that the Clinton campaign was engaged in planning in late July 2016 to encourage scrutiny of Trump's potential ties to Russia, and might have wanted or expected law enforcement or other agencies to aid in that effort. Including an email dated July 5, 2016 from a foreign policy advisor on the Clinton campaign to 3 other campaign advisors that 'We're looking for ways to build on Franklin Foer's great (and scary) piece on Trump and Russia.'....'I'd love to get my hands on details of what they are seeing - can one of you help run this down? I imagine INR or IC types might also have some insights - obviously need to be a bit careful here but eager to get specifics or details.' Then on July 25, 2016 the following text message exchange between 2 foreign policy advisors: 'Can you see if [Special Assistant to the President of National Security Council member] will tell you if there is a formal FBI or other investigation inot the hack?' Several back and forth texts, then the following from the other advisor. 'Left messages for OVP [Office of Vice President] but politico just sent me a push notification stating that they are indeed investigating.' These inquiries were made the day after Clinton purportedly approved the plan.
Sussman provider Baker at the FBI and another individual at the CIA purported data and 'white papers' that allegedly demonstrated a covert communications channel between Trump organization and Alfa Bank. Sussman's billing records reflect he was, regularly billing the Clinton campaign for his work on the Alfa bank allegations. In fact 3 days after the purported approval of the Clinton Plan, Sussam and Elia, General counsel to the Clinton campaign, met with Fusion GPS; and Sussman billed the time to the Clinton campaign as General Political Advice. Two days later Sussman billed the Clinton campaign for communications with Elias regarding server issue.
Furthermore, it appears that Fusion GPS was communicating with the press in late July 2016. They were pushing the Page allegations contained in the Steele Dossier at the same times the purported Clinton Plan was approved. There were email communications regarding stories on the Russian hacking, and possibly doing a story on Page's purported involvement with Russia as a follow up. These were done with numerous news outlets, including but not limited to, Wall Street Journal, Quartz, New Yorker magazine, Reuters, Slate. One paper said they were getting kick back regarding a supposed meeting between Page and Russia because a Moscow source was claiming it was impossible. Thus it appears that a source for the Washington Post was able to debunk the Page meeting in just one day. On October 31, 2016, a little over 1 week before the election, 'multiple media outlets reported the FBI had received and was investigating allegations concerning a purported secret channel between Trump Organization and Alfa Bank.'
On September 1, 2016 Sussman met with a New York Times reporters regarding the Alfa bank and Trump issue; and billed the time to the Clinton campaign. Then on September 15, 2016 Elias advised the Clinton campaign regarding the upcoming article in the New York Times regarding the Alfa bank and billed to the Clinton campaign. On the same day the articles were published the Clinton campaign tweeted 'Computer scientists have apparently uncovered a covert server linking the Trump organization to a Russian-based bank.'
All of these could have provided a clear warning sign to the FBI that there may have been an effort to manipulate or influence law enforcement for a political purpose. It should have elicited far greater care and caution, prompting the FBI to analyze the materials of partisan origins. The Office felt it could not move forward on prosecution due to the insurmountable classification of highly sensitive nature. Honestly a court could review supposed emails, or have an independent ombudsman or ad litem, to determine if they were truly attorney-client or if they crossed that mark and ventured into illegal activities. Running illegal activities through an attorney should not protect anyone from prosecution, and it generally does not.
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