What Was “The Sensitive Application”?

Over a period of several years, Judicial Watch has performed the invaluable service of prying documents loose from the Department of Justice through Freedom of Information Act requests and lawsuits. The process is painfully slow. Tom Fitton writes that “The FBI is only processing the records at a rate of 500 pages per month and has refused to process text messages. At this rate, the production of these emails will not be completed until late 2021 at the earliest.” If Joe Biden wins the election, the process will not be completed at all.

I can’t explain why, with the Department of Justice ostensibly in the hands of the Trump administration, it has been impossible to get to the bottom of the Russia hoax, the worst scandal in American history. Nevertheless, despite all obstacles, documents have slowly trickled out of the bowels of the FBI.

Most recently, Judicial Watch released several emails that have just been produced by DOJ. This thread, in my view, is the most interesting. It documents the fact that in March 2017, the Director of the FBI, James Comey, wanted a briefing on “the sensitive application” so that he could, in turn, brief the Attorney General. First, the emails:

The thread, dated March 29, 2017, starts with James Rybicki of the FBI telling Andrew McCabe, Bill Priestap, James Baker, Peter Strozk and Lisa Page–a familiar cast of characters!–along with others whose names have been redacted (why?), that “the Director”–James Comey, Director of the FBI–“would like a briefing tomorrow…on the sensitive application.”

This is intriguing to say the least. What was “the sensitive application” that was, on one hand, so well known to the FBI’s inner circle that it could be so identified, and at the same time, so sensitive that it couldn’t actually be named? The obvious answer is that it was the third application for a FISA warrant to spy on Carter Page, which was in fact filed with the FISA court on April 7, just nine days after these emails.

But it may not be that simple. Andrew McCabe, Comey’s deputy, asked Peter Strzok–not, interestingly, his boss, who asked for the briefing: “Any idea what’s driving this?” So there was nervousness within the McCabe/Strzok/Page cadre about why James Comey suddenly wanted a briefing on “the sensitive application.” Strzok’s reply is tantalizing:

Jim R [James Ryzicki, whose email began the thread] said OAG [the Office of the Attorney General] told him the AG wanted a brief in advance of signing and would want a little bit of time to think about it.

It makes sense that the Attorney General would want to be briefed on the “sensitive application” for a third warrant to spy on Carter Page, the first since the Trump administration took office. Except that the Attorney General on March 29, 2017, was Jeff Sessions, and Sessions had already recused himself from all matters touching on the 2016 campaign, including the Russia investigation.

And, in fact, the third FISA application to spy on Page was signed off on, not by Sessions because of his recusal, but by underling Dana Boente.

So we are left with a puzzle. If the “sensitive application” was for the third Carter Page FISA warrant, why was James Comey briefing the already-recused AG Sessions? And if it was not the third Page FISA application, then what was it? Something even more sensitive, apparently–something so top of mind at the upper reaches of the FBI that it didn’t have to be named, while at the same time so “sensitive” that it was better not to leave a paper trail. And something that, apparently, Jeff Sessions knew about.

It is frustrating that the Russia hoax scandal leaves a trail of questions behind it, many of which likely will never be answered. I spent my adult life doing civil litigation, an imperfect forum, to be sure, but one in which questions do get answered, and it doesn’t usually take four years. In a civil lawsuit, the relevant documents would have been produced long ago, either voluntarily or in response to a court order. Witnesses would then have been deposed. If I had a case in which the March 29 emails were produced, I would depose the people on the email thread–all of them, including those whose names have been redacted by the FBI–and ask them what “the sensitive application” was. And so on.

Using procedures freely available to litigants in civil cases, I could quite rapidly have gotten to the bottom of the Russia hoax, as could a thousand other capable litigators. I can’t explain why, in far more serious matters like the FBI’s attempt to steal the election for Hillary Clinton and, failing that, to disable the Trump administration, it is impossible to bring normal legal processes to bear. But that evidently is the fact.

I will close with this email by Peter Strzok, written just one week before the thread embedded above:

Strzok writes to FBI colleagues about a question from Wolf Blitzer to commentator Phil Mudd. Mudd said that it was important to do everything right, because “[w]hen this eventually becomes public”–“this” apparently being the Trump-Russia investigation that turned out to be a hoax–“it will be more picked over than even the Clinton investigation was.” Strzok said, “He’s right. And that worries me.”

It is an acknowledgement from the inner circle of the anti-Trump cadre at the FBI of the vulnerability of their position. But with hindsight, Strzok may have been wrong. He may have underestimated the ability of the Democratic Party and its wholly-owned media subsidiary to keep a lid on America’s greatest scandal.

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