David Kris’ “Further Thoughts on the Crossfire Hurricane Report” written with the full benefit of Horowitz analysis is an extremely intriguing writing which reveals some unexpected and ironic conclusions.
The article, once correctly parsed, is extremely damning, specially coming from a Lawfare blogger. David Kris is logically forced to admit that the errors revealed in Page FISA are as significant as 20yr old systemic problems that gave birth to the Woods procedures, and further, that whether or not errors in CFH are “unique or a pattern”, in either event FBI Leadership will be at fault.
Finally, David Kris exposes himself as a hyper-partisan critic incapable of receiving even vindicated arguments from Devin Nunes while at the same instant, completely unwilling to utter a single word about the credibility of opposing claims from Adam Schiff.
HOW BAD IS IT?
Beginning with the issue of precedent, Kris admits “the closest case to Crossfire Hurricane that I can think of arose almost 20 years ago”, when in “September 2000, the government came forward to confess error in some 75 FISA applications”, revealing a pattern of deceit upon the FISC so pervasive that an “FBI agent was barred from appearing before the Court as a FISA affiant[,]” and by April 2001, as an additional remedial measure, the the FBI issued the now-famous Woods Procedures, which are discussed extensively in the Crossfire Hurricane report.
The tragic irony should not be lost on anyone here, since the Crossfire Hurricane investigation has resulted in the FISC demanding “a review of all Foreign Intelligence Surveillance Act filings handled by FBI attorney Kevin Clinesmith“ (who would be barred from the court if he was so still Federally employed). Additionally, Kris admits that the Crossfire Hurricane team essentially ignored the Woods Procedures: “the inspector general’s report emphasizes a failure to follow the Woods Procedures, see, e.g., Report at 413, not shortcomings in those procedures themselves.”
In other words, there is precedent for these type of errors, and it is the worst possible type of precedent.
WHAT ABOUT BIAS?
To the question of political bias, Kris reports that “given the scope and the focus of the review that was done, the absence of evidence is significant,” which is true. At the same time, Kris acknowledges that the report, and especially Horowitz’s congressional testimony, add a caveat to that assessment. The report says, for example, that while “[w]e did not find documentary or testimonial evidence of intentional misconduct on the part of the case agents who assisted [the Justice Department] in preparing the [FISA] applications, or the agents and supervisors who performed the Woods Procedures [to confirm the accuracy of the FISA applications], we also did not receive satisfactory explanations for the errors or problems we identified” (Report at xiii). The report makes similar statements at several other points (see, e.g., Report at 362, 377-378, 382 n.502, 414).
In an exchange with Sen. Joni Ernst concerning the possibility of criminal referrals, Horowitz put it this way: “We didn’t see evidence of [criminal] intent, but we also didn’t hear good explanations, which left us with an open question on what the motive was and what the state of mind was” (C-SPAN at 4:35:07).
These repeated caveats from Horowitz have pushed Kris to admit to the following shocking claim:
“…there is at least the theoretical possibility, that the investigation was motivated by political bias and/or was part of a witch hunt or deep-state coup attempt to undermine President Trump.“
UNIQUE OR PATTERN?
The inspector general has announced a broader audit of compliance with internal accuracy procedures in espionage and terrorism FISA applications targeting U.S. persons (Report at xiv, 380).
This causes Kris to muse on whether Crossfire Hurricane is an outlier, or more of a regular pattern of abuse at the FBI.
Having already admitted to “the theoretical possibility that the investigation was motivated by political bias and/or was part of a witch hunt or deep-state coup”, Kris goes on to offer “other possible explanations” for a unique case of systemic errors: the structuring and staffing decisions of FBI leadership:
“As I read the inspector general’s report, and particularly Chapter 11, I was struck by the structuring and staffing of the Crossfire Hurricane investigation, including the fact that it was run out of FBI headquarters rather than a field office… and subject to other changing structures and staffing through May 2017…
Running a complex investigation directly from headquarters is not unprecedented, but it is not common—and for good reason.
I do believe, based on my experience, that it contributed, perhaps significantly, to a lack of structure, coordination, and other discontinuities and management challenges in the way the Crossfire Hurricane investigation was run.
Put differently, if it does turn out that Crossfire Hurricane was uniquely or especially error-prone, as compared to other cases, I believe the headquarters and other structural and staffing aspects of the case will come to be seen as a significant cause of the errors.”
After reviewing the options for a “unique” level of errors, Kris has now admitted two possibilities, both of which are horrible: 1) “the theoretical possibility of a witch-hunt” or 2) “the headquarters and other structural and staffing aspects of the case ” which are the sole responsibility of FBI leadership.
Kris then turns his attention to the possibility that the systemic errors found in the Page FISA are not unique and might be found to be a pattern of abuse. Kris proposes “cultural slippage” problems, which would again, lie directly at the foot of “strong leadership from the director”.
BARR, DURHAM and NUNES
After determining that the FISA “errors” are some of the worst we’ve seen in a generation, being forced to admit that they “could” be part of a witch-hunt, and that in any event, FBI leadership is a likely cause either way, David Kriss then turns his ire on the persons responsible for bringing these uncomfortable facts to his attention.
With respect to the dissenting opinions of Barr and Durham relating to conclusions surrounding the predication for opening the investigation, Kris assumes that “it is very likely that a complaint or referral concerning Durham and/or Barr will be lodged (whether by Congress or another person or entity).” Additionally, we are treated to an unsolicited opinion from Eric Holder, accusing AG Barr of being “nakedly partisan”, “deeply inappropriate” and “unfit to lead”.
This is all very amusing, considering Devin Nunes was subjected to a similar fate, having to endure an Ethics Review and calls to be prosecuted for obstruction of justice for being the first to voice such dissent.
Despite Nunes’ Memo being 100% vindicated, and then some, David Kris childishly clings to a strawman representation of the Nunes Memo, falsely alleging it contains one main, or “core” point. In fact the Memo explicitly outlines at least five. Nevertheless, Kris harps on a single point to the exclusion of any other analysis, allowing him to refuse any apology to Nunes:
That Kris can to this day still claim Nunes to be “extremely misleading and inappropriate, especially for an oversight committee chairman” is the height of partisan irony. Kris can not even find one word in his ten thousand word tomb to offer any analysis or comment on how “appropriate” Schiff’s opposing memo has fared.
Unfortunately for David Kris and the rest of Lawfare’s “nakedly partisan” crew, he has already left the writing on the wall.
In Kris’ own words, he has shown us that the FISA abuse is some of the worst we’ve seen in a generation, replete with dirty attorneys being barred from the court and underlying Woods Procedures being completely ignored.
Kris is forced to admit that the systemic errors “could” be part of a witch-hunt, and that in any event, FBI leadership is ripe to be at cause either way.
Kriss can refuse apology to Devin Nunes. His silence on the scourge that is Adam Schiff is a deafening testament to his partisanship.