Kash Patel, President Trump’s pick to lead the F.B.I., has repeatedly undercut the work of the very agency he is set to lead by making false statements related to its criminal and counterintelligence inquiries into the president.
His demonstrably spurious claims, shared in podcasts and in his book, “Government Gangsters,” served to delegitimize the investigation into the Trump campaign’s ties to Russia, stoke baseless suspicions that the F.B.I. helped instigate the Jan. 6, 2021, assault on the Capitol and muddy the waters of the inquiry into Mr. Trump’s refusal to return classified documents after leaving office.
Mr. Patel’s pattern of peddling misinformation is at sharp odds with Mr. Trump’s proposal to put him in charge of the nation’s premier agency charged with figuring out what is true.
A spokeswoman for Mr. Patel, Erica Knight, took issue with the basic thrust of this article, while making some further misstatements on his behalf.
The origins of the Russia investigation
The root of Russia-gate is the Steele Dossier paid for by the Hillary Clinton for President Campaign and the DNC. … The fake dossier was the linchpin for the whole operation. This was yet another detail the Deep State tried to hide when Obama’s former director of national intelligence James Clapper went on to CNN and said that the dossier was not used to start the investigation. It was a flat-out lie, but it did serve Clapper’s true purpose, which was to help his Deep State allies at the F.B.I.
— “Government Gangsters”
Mr. Patel has repeatedly cast aspersions on the F.B.I.’s investigation into the nature of ties between the 2016 Trump campaign and Russia. To portray the inquiry as politically motivated, he has falsely described the facts and circumstances by which the F.B.I. decided to open it.
In reality, the F.B.I. opened it on July 31, 2016, three days after the officials who made that decision received a tip from the Australian government about the Trump campaign and Russian hackers, according to reports by two separate investigations into the Russia inquiry. One was by the Justice Department’s independent inspector general, Michael E. Horowitz, and the other by a special counsel appointed by the Trump administration, John H. Durham.
That spring, the Australians said, a foreign policy aide on the Trump campaign had suggested to Australian diplomats that Russia was planning to anonymously release dirt on Hillary Clinton to damage her candidacy. Later, it became public that Russia had hacked Democrats.
Then, in late July, Democratic emails were anonymously disseminated online, disrupting the party’s national convention at which Mrs. Clinton was formally nominated.
Four days later, the Australians relayed to the U.S. government what the campaign aide had said in May. In light of subsequent events, the disclosure raised suspicions that the Trump campaign might have privately known ahead of time about Russia’s plans.
Based on this information, the F.B.I. opened the investigation. In addition to the inspector general and special counsel reports, testimony and internal documents at the time that have since become public also corroborate this sequence of events.
Even Mr. Durham acknowledged in his final report that “as an initial matter, there is no question that the F.B.I. had an affirmative obligation to closely examine” the tip from Australia.
Mr. Patel has sought to blur that reality, in part by falsely conflating the investigation with the so-called Steele dossier, a compendium of political opposition research about Mr. Trump’s supposed ties to Russia. The dossier, gathered by a young researcher and written by Christopher Steele, a former British intelligence officer, was indirectly funded by the Clinton campaign, and it has since been discredited as unreliable gossip and speculation.
But the dossier was not the root or the start of the investigation. According to the inspector general and special counsel reports, the dossier reached officials working on the Russia inquiry on Sept. 19, 2016 — six weeks after they had already opened the case based on the Australian tip.
In response, Mr. Patel’s spokeswoman said that the tip from Australia “was not official intelligence” and insisted that the Steele dossier was “the central piece” of the inquiry.
The Carter Page wiretap applications
Steele would leak the information, then the F.B.I. would use the media reports planted by their own source to bolster its investigations. One particular story went to Michael Isikoff at Yahoo News, which discussed how Trump campaign aide Carter Page traveled to Moscow … in order to justify part of their FISA warrant application on Carter Page. … The F.B.I. knew about Steele’s bias and that the Clinton campaign and the DNC had paid for the dossier at the time they submitted their FISA warrant application to spy on Carter Page, but they never told the FISA judge either of these facts, as was required by law.
— “Government Gangsters”
To put the Carter Page FISA warrant into perspective, this wasn’t just routine police work. By getting a FISA warrant on Carter Page, the F.B.I. effectively had the ability to spy on most, if not all, of the Trump campaign communications, including messages from Donald Trump himself. That’s because these warrants don’t just let the F.B.I. observe the subject of the warrant but also people one or even two degrees removed from the subject. That means the entire Trump campaign could have been in the F.B.I. dragnet. … As I mentioned earlier, the F.B.I. didn’t need to spy on Donald Trump personally because a single surveillance warrant on one person in the campaign would give them the ability to do all the spying they could need on effectively any person in the campaign, including the candidate himself.
— “Government Gangsters”
As a Republican staff member on the House Intelligence Committee, Mr. Patel sought to discredit the Russia investigation by zeroing in on the F.B.I.’s applications to wiretap Carter Page, a former Trump campaign foreign policy adviser with ties to Russia.
The applications, filed under the Foreign Intelligence Surveillance Act, or FISA, cited certain claims from the Steele dossier — the only investigative use the F.B.I. made of that flawed document. The scrutiny of Mr. Page was a dead end, and the inquiry’s final report did not cite the dossier for any factual findings. But the wiretapping took on larger political significance.
In what became known as the Nunes memo, a reference to Mr. Patel’s boss at the time, Representative Devin Nunes, Mr. Patel compiled a list of purported flaws in the wiretap applications, which remained classified at the time. Democrats, in their own memo, countered that many claims in the Nunes memo were false.
An inspector general later concluded that the F.B.I. had botched the FISA applications in myriad ways, but most of the flaws it identified were not in the Nunes memo. And many of the flaws Mr. Patel claimed to exist turned out to be false or misleading when the underlying materials became public.
Mr. Patel has nevertheless repeated several of those false claims and insinuations.
It is not true that the FISA applications used the Yahoo News article to corroborate the Steele dossier’s claims when the information in the article also came from Mr. Steele. Rather, they mentioned it, as the applications stated, to inform the court that Mr. Page had denied working with Russia, including to the F.B.I., in response to the article.
In response, Mr. Patel’s spokeswoman did not directly address this mischaracterization, pointing instead to the fact that the application elsewhere cited other news articles about Mr. Trump and Russia to strengthen its case. Those articles are not attributed to Mr. Steele.
Mr. Patel was also misleading in suggesting that in asking for a court’s approval to wiretap Mr. Page, the F.B.I. hid from the court that the dossier’s origin was a political opposition research effort against Mr. Trump. A lengthy footnote in the application warned the court that the person who hired Mr. Steele “was likely looking for information that could be used to discredit” Mr. Trump’s campaign.
The application did not specifically name the Clinton campaign as the entity that was indirectly funding the research. But it is the practice in such applications not to refer to Americans and U.S. organizations by name; for example, the document referred to Mr. Trump as “Candidate #1.”
In response, Mr. Patel’s spokeswoman said the F.B.I. should never have used allegations from the Steele dossier in court, portraying it as a “dirty trick” by the Clinton campaign.
Mr. Patel’s claim that the FISA order empowered the F.B.I. to “do all the spying they could need” on everyone else in the campaign is also false. The orders allowed the bureau to collect the contents and metadata about only phone calls and emails to and from Mr. Page, not those of other people around him.
In response, Mr. Patel’s spokeswoman pointed to articles about surveillance and bulk data collection. But she appeared to be mistakenly conflating the type of FISA orders at issue with Mr. Page with an unrelated technique that intelligence analysts sometimes use to sift bulk metadata.
The F.B.I. and the Jan. 6 riot
What was the F.B.I. doing planning Jan. 6 for a year?
There needs to be an investigation. Here’s the one singular thing the Congress can do: Put out every piece of information the F.B.I. has on Ray Epps, the amount of money he’s been paid as an informant, and why was he allowed to encourage and incite a riot around some of the events of Jan. 6 as a government employee?
Mr. Patel has repeatedly sought to push two related strands of conspiracy theory about the attack on the Capitol on Jan. 6, 2021, when a mob of Trump supporters tried to prevent Congress from certifying Joseph R. Biden Jr.’s Electoral College victory.
One is that the F.B.I. planned and instigated the riot using undercover agents and confidential informants. The other is that a particular rioter, Ray Epps, was working for the F.B.I.
Both of those claims are false. (The Bulwark, a conservative, anti-Trump publication, has debunked many of Mr. Patel’s comments. The article is by top House aides who scrutinized Mr. Trump’s role in the attack, Thomas Joscelyn, a senior staff member on the committee that investigated the attack on the Capitol, and Norman Eisen, a senior staff member on the committee that handled Mr. Trump’s first impeachment inquiry.)
Mr. Horowitz, the Justice Department’s inspector general, recently released a report about his investigation into the F.B.I.’s handling of confidential informants and intelligence leading up to Jan. 6. He found that the bureau “did not have any undercover employees” in the crowd that day.
The report concluded that 26 people who had a history of providing information to the F.B.I. were in Washington on Jan. 6, including some within the Proud Boys, a far-right militia. But the report made clear that bureau officials did not order or authorize any of them to encourage Mr. Trump’s supporters to storm the Capitol or otherwise break the law.
In fact, the report determined that F.B.I. handling agents had asked only three of the informants to go to Washington “to report on specific domestic terrorism case subjects” who were planning to attend Mr. Trump’s “Stop the Steal” rally. The remaining 23 had gone to Washington on their own, the report found.
One of them was a member of the Proud Boys Kansas City chapter who ultimately testified at the trial of his compatriots that he was at the Capitol as “an independent human” making his own decisions.
No evidence has emerged to back Mr. Patel’s claims that Mr. Epps was a paid agent provocateur who sought to incite the mob on government orders.
Mr. Epps has testified under oath that he never worked for the U.S. government outside of his service in the Marine Corps. When Mr. Epps was sentenced to probation for his own small role in the Capitol attack, the federal prosecutor handling his case declared in court — where there are serious professional consequences for lying — that he had not worked as “a confidential source or undercover agent” before, during or after Jan. 6.
In an interview with another podcaster, Tim Pool, Mr. Patel claimed he had proof “beyond a reasonable doubt” that Mr. Epps was an F.B.I. instigator. He asserted that Mr. Epps had been on the bureau’s most wanted list in the days that followed the Capitol attack but then quickly disappeared from it.
“There are only two ways that happens,” he claimed. “You die or you’re an informant.”
But Mr. Epps — whom Mr. Trump pardoned alongside nearly 1,600 other rioters this week — has said that the real explanation is simpler: He saw his name on a list of suspects the F.B.I. wanted to speak with, and so he called the bureau and sat down for an interview. After that, he was no longer “wanted.”
Mr. Epps caught the attention of agents because he appeared in videos from Jan. 6 talking into the ear of another rioter, Ryan Samsel, who engaged in one of the first confrontations with the police shortly after their conversation. Mr. Epps told the F.B.I. that he told Mr. Samsel to calm down, explaining that the police outside the Capitol were simply doing their jobs. That account was later confirmed by Mr. Samsel himself, who told the F.B.I. during his own interview that Mr. Epps had tried to de-escalate the situation.
“He came up to me and he said, ‘Dude’ — his entire words were, ‘Relax, the cops are doing their job,’” Mr. Samsel told investigators, according to a recording of the interview obtained by The New York Times.
In response, Mr. Patel’s spokeswoman pasted a link to an article about Jan. 6 in The Federalist, a pro-Trump website, which did not mention the F.B.I.
The classified documents investigation
Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves. … The president has unilateral authority to declassify documents — anything in government. He exercised it here in full. … It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.
When it came to light that Mr. Trump had kept documents marked as classified after leaving office and resisted repeated requests to return them, he claimed that he had declassified all the materials before leaving office.
Mr. Patel stepped forward to try to corroborate his claim, even as other Trump administration officials said it was baseless.
Mr. Patel’s assertion was so unusual that when the F.B.I. applied for a search warrant to retrieve additional classified documents from Mr. Trump’s Florida residence and club, Mar-a-Lago, it alerted the judge about Mr. Patel’s remarks.
No evidence has emerged to support Mr. Patel’s claim. No written blanket declassification order — or any written contemporaneous reference to any such oral order — has ever surfaced. And nobody communicated to national security officials any records or information that they should now treat as declassified.
While it is not a crime to lie to the public, lawyers who lie in court can lose their licenses, and people who lie under oath can be prosecuted for perjury. During a battle over the materials the F.B.I. had seized during its search of Mar-a-Lago, Mr. Trump’s defense lawyers noted that when he was president he had the power to declassify things. But notably absent in their defense in court was Mr. Trump’s claim that he had declassified the files he had retained.
And when prosecutors subpoenaed Mr. Patel to testify before a grand jury about his claim, he invoked his Fifth Amendment right against self-incrimination and refused to answer many of their questions. Prosecutors then granted him limited immunity to force him to testify. What he said under oath is not public.
In response, Mr. Patel’s spokeswoman pointed to a transcript of a different podcast in which Mr. Patel talked about how Mr. Trump had issued an order to declassify portions of a binder of material about the Russia investigation at the end of his time in office. That bit is true, but the binder was not among the files the government recovered from Mar-a-Lago.
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