Updated: Jul 13, 2019
Much has been surmised about the validity of the FBI's predication for the FISA warrant to intercept Carter Page as well as its predication to investigate the possibility of Trump-Russia campaign collusion.
Conservative and liberal pundits are gearing up for the Inspector General's (IG) forthcoming report examining exactly this. Both sides are prepping to spin the results according to their political penchants.
While I see no problem with an IG review of whether the FBI lived up to legal standards as to how it handled whatever intelligence comprised predication, the IG must refrain from determining whether the right call was made, even if it opines that certain information was insufficiently vetted or omitted. To do otherwise would send a chill through the agency and adversely affect its ability (and willingness) to safeguard the country.
So, what can we expect to see in the IG's report?
As a former 23-year FBI veteran, I cannot recall an FBI agent ever lying in an affidavit, no matter how obscure the investigative matter. To do so is antithetical to an FBI agent's nature. The layers of FBI and DOJ approval, including a special review in which DOJ verifies the accuracy of every fact in a FISA application also suggests this did not occur. However, while the thousands of FBI agents I worked with would not intentionally lie in an affidavit -- something I would term a "lie of commission" -- "purposeful omissions" may occur.
Before you read anything sinister into this distinction, let me explain.
While exculpatory information is often addressed and mitigated as an affidavit footnote, an investigator is not required to present every piece of collected intelligence. Only what is sufficient to establish probable cause that a target is an agent of a foreign power who is knowingly engaged in clandestine intelligence activities. In other words, the government has to show that the target might be spying for a foreign government. This standard is not particularly high.
For practical reasons, as was likely the case with Page, there is normally too much intelligence to directly address all of it in an affidavit. If exculpatory information is omitted, however, it is likely to be unverified intelligence or an opinion inconsistent with known facts and contrary to the affiant's experience and opinion, which in itself comprises a substantial piece of probable cause.
As frustrating as this may be to right-leaning pundits, these types of omissions are likely to be the most alarming category of findings in the IG's report. I highly doubt -- as some conservatives have implied -- that there will be a finding of malice with regard to predication. I do not believe the IG will find there to be "lies of commission."
FBI agents are trained to keep an open mind and avoid tunnel vision. But they are also trained to get to the truth. The warrant itself is not a noose. It is authorization for a step that gets the investigator one step closer to the truth. The truth may inculpate or it may exculpate. Without it, it is impossible for the FBI to safeguard the nation from its enemies -- both foreign and domestic.
For this FBI agents should be commended, even if their judgment falls short.
James S. Davidson was an FBI special agent for 23 years. He investigated major crimes in Texas and California and served in Ukraine, Israel, and Washington, D.C. He is now president of Protect the FBI, a non-partisan organization whose mission is to safeguard the FBI from the partisan politics of both political parties. Twitter: @protectthefbi