Sunday, December 22

No Surprise...Misconduct Atop FBI

The latest DOJ IG report adds to the FBI's long history of executive misconduct, but Louis Freeh somehow remains in an unofficial "witness protection program"

Ray Blehar
December 22, 2019,  10:03 AM EST

On Monday, December 9th, DOJ IG John Horowitz reported that top FBI officials made 17 errors and omissions to the FISA court in order to justify surveillance on a U.S. citizen.   The report also found 51 violations of the procedures used for verifying and validating information in the FISA warrant submissions (a.k.a. the Woods Procedures).

Topping the list of misrepresentations, an FBI Office of General Counsel (OGC) attorney altered an email in order convince the court to renew a FISA warrant to spy on President Donald Trump.  The OGC attorney changed a single phrase in an email to make it appear that Carter Page, an associate of the Trump campaign and a CIA source, was not a CIA source.

The DOJ IG also found that exculpatory evidence was withheld from the court that likely would have put an end to the investigation almost immediately after it was opened.

Errors and omissions.
Alteration of email.
Withholding of exculpatory evidence

Sound familiar?

They should because reported similar episodes in its review and analysis of former FBI Director Louis Freeh's investigation of Penn State University (PSU).

The FBI took another hit when FISC judge Rosemary Collyer issued an strong rebuke of the FBI's handling of the case and called into question the reliability of evidence in other FISA applications.

"The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable." 

Rolling back the calendar to 2002, then FBI Director Robert Mueller was called into the FISC to address 75 instances of FISA cheating prior to him becoming the agency's head.

And who was at the helm before Mueller?  Louis Freeh.

While IG Horowitz's report did not answer why the most recent FISA cheating occurred, the answer seems rather obvious. FISA operates in secret and there's little chance that anyone is going to check the work, especially when the work is done at the executive level.

It seems like poetic justice that the Horowitz report and Collyer's legal opinion came on the heels of the opening of Clint Eastwood's movie, Richard Jewell.   The movie gives a blow by blow account of the FBI abuses during the investigation of the 1996 Atlanta Olympic Park bombing.

Then FBI Director Louis Freeh became personally involved in the case because there was immense pressure to find the perpetrator immediately.  The Olympic games and the economic windfall that came with it was at risk.

Atlanta FBI field agents duped Jewell into waiving his right to an attorney (and violating his Constitutional rights).   Right before Jewell's interview, his name was leaked to the media.

The media rushed to judgment and immediately convicted Jewell in the court of public opinion.  Jewell went through living hell for 88 days before the FBI finally cleared him.  He filed and won lawsuits for defamation.

Violation of rights.
Leaking of criminal information.
Media rush to judgment.

To quote Yogi Berra, "it's deja vu all over again."

The FBI misconduct with Jewell and with the 2016-17 FISA case are very similar the missteps in the  Freeh investigation of PSU in 2011-12.


In a press release and then later in a press conference on July 11, 2012, Freeh falsely claimed that his team made independent discovery of the Penn State emails on March 20, 2012.

"In critical written correspondence that we recovered on March 20th of this year, we see evidence of their proposed plan of action in February 2001...


"Our investigative team made independent discovery of critical 1998 and 2001 emails – the most important evidence in this investigation."

No one (except questioned Freeh's statement because neither PSU nor the Pennsylvania Office of Attorney General (PA OAG) ever called him out for the misrepresentation.

Readers of this blog know that Freeh's email discovery claims came crashing down in at the July 2013 preliminary hearing of Curley, Schultz, and Spanier.  At that hearing, neither PSU's computer forensics expert nor the PA OAG's computer forensics expert testified to Freeh's team being involved in the discovery of the emails.

John Corro, the PSU expert, testified that in March or April of 2011 he provided three USB keys containing the emails to then PSU General Counsel Cynthia Baldwin .

The PA OAG's expert, Braden Cook, made no mention of Freeh when he testified to collecting the email evidence.

You would think that the testimony from Corro and Cook would have been a major story given that it proved Freeh made some serious misrepresentations about his PSU investigation, but no such media reports came out of that hearing.

It was as if Freeh was in an unofficial "witness protection program."

Interestingly enough, at the July 2013 hearing,  OAG expert Cook testified that the PSU emails were missing from custody when he went to retrieve them and were copied to a file (on March 23, 2012).

Cook misspoke when he said "March of 2011" because he was not assigned to the case at that time, but that does not preclude that the OAG didn't have the emails on or about that time.

Right after then Governor Tom Corbett's March 2011 budget spat with Spanier, the OAG contacted the former PSU President to interview him about the Sandusky matter.   That interview took place on March 22, 2011.

After the interview Spanier was called to testify before the grand jury on April 13th.  At that proceeding, OAG prosecutors made statements alluding to their possession of the 1998 and 2001 emails.   Then the prosecution successfully argued for a subpoena to force PSU to turn over emails from 1997 and back.

The only reason for the OAG prosecutors to specifically argue for those older emails was that they already had the 1998 and 2001 emails.

And if the 2001 email was the so-called "smoking gun" email for implicating Spanier (and Paterno) in the decision not to report Sandusky, then why wasn't Spanier charged with failure to report in November 2011?

The answer is that in March 2011, the so called "smoking gun" email didn't contain the necessary language for implicating Spanier.

Altered Email

Back in the late summer of 2012, many people criticized our reporting on the suspected email fraud because of their assumption that Freeh had an impeccable reputation.

In response to those critics, contributors to this blog provided information regarding the case of former FBI whistle blower Frederick Whitehurst showing that Freeh's FBI covered up or otherwise suppressed flawed analyses of forensic evidence in order to obtain convictions in thousands of cases.

In 1994, he reported his concerns with FBI lab practices internally. It was “alterations of reports, alterations of evidence, folks testifying outside their areas of expertise in courts of law”, said Whitehurst, but “really what was going on was human rights violations. We have a right to fair trials in this country… And that’s not what was going on at the FBI lab.

Freeh's command center on the PSU campus included a network of computers that were not connected to the PSU network or any other network.  The work conducted on that network was untraceable and impossible to audit after the network was disestablished.

It was perfect situation to alter emails and other documents because there was little to no chance the anyone would check the work.   That...and the PA OAG and PSU were in on the email scam.

IT forensics experts consulted by uniformly agreed that the email below and several others (with visible html code) were suspicious and needed to be compared to the original files on the PSU server.

During the July 2013 preliminary hearings, OAG IT forensics expert Cook provided faulty reasoning for the "html" code that appeared in the email.  His testimony (at 80) was:

"...that is actually formatting that is put in there from a web page. So that wasn't part of the actual email. That was just some formatting that was in there."


The most likely reason for the html code was because the email was created in the Eudora email system and then opened, edited, saved, and then printed using the Microsoft Outlook email system.  That's what would have happened to a file that was created by Schultz in 2001 using PSU's Eudora system and then altered and printed by someone using Outlook at a later date.

Interestingly, on October 9, 2015, McQueary's legal team filed a motion to authenticate the PSU email exhibits and notes from the Freeh Report.

In December 2015, McQueary's team later withdrew the motion based that it was moot.

Freeh was apparently still covered by the unofficial "witness protection program."

Violation of Rights

As the Horowitz report revealed, FBI personnel withheld exculpatory evidence from the FISC in order to maintain surveillance on the Trump campaign associate Carter Page.  This was a violation of Page's 4th Amendment Right prohibiting illegal searches.

Similarly, Louis Freeh and PA OAG prosecutors -- undoubtedly with cooperation from Baldwin and/or other PSU high officials -- withheld potential exculpatory email evidence that could have cast doubt on the entire PSU scandal.

On November 10, 2011, McQueary sent an email to AG prosecutor Jonelle Eshbach complaining about how he had been ruined by their portrayal of his actions (or inactions) during the 2001 shower incident and asking Eshbach to make a statement to correct the record.

Eshbach told him he could not make such a statement.  She later testified:

"My advice to Mr. McQueary not to make a statement was based on the strengthening of my -- and saving of my case.  "I did not want him [McQueary] making statements to the press at that time that could at some time be used against him in cross-examination."

In the email, McQueary  questioned his own eye-witness account, describing what he witnessed as:

 "a sexual act and or way over the line in my opinion whatever it was."  

Later he added:  "

I feel my words were twisted and not totally portrayed correctly in the presentment..."

The Supreme Court held in Brady v. Maryland that withholding exculpatory evidence violates due process rights "where the evidence is either material to guilt of punishment."

It was quite clear that the prosecutor Eshbach felt McQueary's uncertainty about what he saw and his objections to the grand jury presentment had could possibly ruin her case.

And that's the reason why the OAG prosecutors and Freeh  never let this email see the light of day.

Leaks and Media Complicity

At the nationally televised press conference on July 11, 2012, Freeh condemned the PSU email leaks and stated that no one on his team was responsible for them.

While it's possible that Freeh was telling the truth about his team's role in the leaks,  email correspondence between PSU Trustees Ken Frazier and Ron Tomalis, and Omar McNeil of the Freeh Group prove they all expected the emails to show up in media reports on or about June 11, 2012.

The PSU Board of Trustees even had a media strategy in place if the emails went public.

The leaks of the emails to the press didn't happen until June 29th.  The CNN story stated that the network was not in possession of the emails but the contents were read to them.

It is highly likely the email leaks were delayed by 18 days because the leakers didn't want the media's focus to be taken off of the Sandusky trial.

To be clear, the evidence above shows that Freeh, Frazier, Tomalis, and top PSU officials were in the loop that there were going to be leaks of the emails and that negative publicity (about Paterno, Spanier, and others) would follow.

Freeh had been down that road before with Richard Jewell.

Shortly after the leaks, Freeh performed a public lynching of PSU officials at his press conference, declaring that the "Tone at the top was completely wrong."

Today, the irony of Freeh's statement is overwhelming.


  1. What I haven't seen reported is if there had been no errors or omissions, would the FISA warrant have been approved?

    The level of probable cause needed was greatly reduced after 9-11 so it is quite likely the warrant would have been approved anyway. Just the fact that a Trump campaign official was bragging to an Australian diplomat of the Trump campaign's ties to Russia might have been enough probable cause.

    The FISA situation reminds me of the Spanier and Sandusky appeals. The judges just find some reason to knock down all the grounds for appeal or just say, while this was an error, it did not affect the outcome of the trial.

    1. Tim,
      Thanks for your question and comments.

      The level of probable cause to get a FISA remains very high and, according to IG Horowitz, the FBI failed to meet the bar the first time it tried to get a warrant for conducting surveillance on Carter Page. The FBI "cleared the bar" for FISA by using the Steele dossier. Therefore the answer to your question is NO the FISA wouldn't have been granted had it not been for the FBI failing to tell (lying) the FISA Court that the Steele dossier had NOT been verified.

      Next, the Papadopolous discussion had nothing to do with getting the FISA. Rather, that discussion was used to justify opening the counter-intelligence (CI) operation against the Trump campaign. As IG Horowitz stated, the bar for opening a CI investigation is LOW, therefore the FBI met the predicate. However, AG Barr disagreed with that assessment for two reasons: 1) at the time of the barroom discussion, rumors were rampant that the Russians had dirt on Hillary Clinton and Papadapolous was trading in the same type of rumors. 2) even though the bar to open a CI is LOW, the fact that the FBI would be conducting a CI investigation into a Presidential campaign should have raised the bar.

      As you know, the Mueller Report stated no one in the Trump campaign collaborated with the Russian government. I suspect the investigation by John Durham will shed more light on this overreach by the FBI.

      If I am reading your last comment correctly, you have it completely backwards. The correct analogy is that Trump was the defendant and the FISA just ruled in his favor that the surveillance on his campaign associate, Carter Page, was illegal. FBI officials could face discipline and/or criminal charges. This is very similar to the court throwing out the charges against Spanier that were based on Baldwin's testimony and Fina's misrepresentations to the court. Both Baldwin and Fina faced disciplinary action.

    2. I have not read most of Horowitz's 400 page report but based on news reports, Trump and Barr are not happy with it because it debunked a lot of Trump's favorite conspiracy theories.

      Horowitz found no "deep state" working against Trump and no evidence for Trump's claim that the Obama administration tapped Trump Tower phones.

      An NPR article stated "Horowitz also reaffirmed that the so-called Steele dossier, a collection of partly unverified reports about then-candidate Trump, 'had no impact' on the bureau's decision to open the investigation."

      Trump was never a defendant because he wasn't charged with any crime.

      Trump wanted Horowitz to be like Freeh, who didn't do an independent investigation but spun his cherry-picked evidence to support the PA Attorney General's charges. Trump expected Horowitz to find evidence to fit his pet conspiracy theory of a "deep state" working to undermine him. Horowitz disappointed him so Trump's lackey Barr publicly disputed the Horowitz Report and has Durham preparing a report that better supports Trump's conspiracy theories.

    3. Tim,
      Thanks for your comments.

      Let me start by saying those who live in glass houses should not throw stones. After three years of promoting the Trump-Russia conspiracy theory, the media is on very thin ground to call Trump's allegations of being undermined by the FBI a conspiracy theory.

      The NPR story and most of the media are engaged in yet another disinformation/misdirection campaign in order to protect the law breakers who are supposed to be enforcing the law.

      The Horowitz Report CONFIRMED the Steele Dossier was the essential piece of evidence for obtaining the FISA warrant to surveil the Trump campaign. The FBI violated procedures when it did that because it cannot present unverified information to the FISC.

      Next, so this alleged barroom discussion between an Aussie intel operative and George Papadopolous was the sole impetus to open the CI investigation on a Presidential candidate? LAUGHABLE!

      Next, the Papadapolous discussion and other rumors about collusion were NOT sufficient evidence to obtain a FISA warrant. Without the FISA, the investigation goes nowhere.

      The media obviously knows that's the case but instead of telling the truth, it lets on that the investigation was legitimate because it wasn't opened based on the Steele Dossier. Seriously?

      Of course Horowitz didn't discover a "deep state" because he wasn't chartered to investigate one.

      To be clear, the "deep state" is simply a colloquialism used to describe the permanent bureaucracy in the U.S. government. I was a member of it for 32 years. Whenever a new President takes office, the permanent bureaucracy (i.e., the Executive Branch agencies) prepare numerous volumes of books to inform the President of all of the existing programs and how they operate them. The Executive Branch agencies expect those operations to continue more or less unabated.

      In most cases, when a President changes policy direction, the agencies will push back and make the case for doing it the way it's always been done. Eventually, one side wins out and either the President of the agency gives in. However, Trump's foreign policy positions were simply too much a departure from the Washington foreign policy establishment that the folks at the top wouldn't back down, so Trump went around them. He had every right to do so under the Constitution.

      The evidence from the Horowitz report is quite clear that the FBI's actions to surveil the Trump campaign were wrong -- and Durham will determine if those actions reach a criminal threshold.

      When Bill Barr was appointed AG in 1991 he was approved unanimously by the Senate. He's nobody's lackey.

      Which brings me to my final point that the media has NO regard whatsoever for history but everything to do with pushing its own agenda. The Horowitz Report CONFIRMED the Nunes memo on FBI FISA abuse was correct and accurate. The media didn't offer an apology or retract the stories condemning Nunes. Moreover, the media did not retract their stories that agreed with the FISA memo authored by Adam Schiff -- even though the Horowitz Report confirmed Schiff was full of Schitt. For two years, Schiff stated he had solid evidence of Trump-Russia collusion. As it turned out he didn't. But turn on CNN, MSNBC, and the broadcast networks and you'll see them giving Schiff air time and taking his word for any number of things.

      Not because Schiff is a reliable source. History shows he isn't. He gets air time because he supports the media's agenda.

      In closing, it's great to live in a country where we can choose to believe whatever we want to believe and to have differing opinions. Some people still firmly believe Barack Obama was not born in the USA and there are still people Trump colluded with the Russian government in the 2016 election -- despite having no verifiable evidence to support their claims.

  2. The problem is judges were once lawyers and judges protect their own. Lawyers have run the FBI for decades Comey, Mueller, Freeh. The shining example is the totally corrupt PA legal system. Plus, in this country there is a legal system for the aristocrats and the plebs.

  3. This sounds strangely familiar. Kenneth Frazier (and Pepper Hamilton) defended Merke in the multiple lawsuits filled for wrongful death for use of Vioxx (rofecoxib), a cyclo-oxidase 2 enzyme inhibitor. The case was well covered in the chemistry literature. (see, for instance for a synoptic discussion.)

    In the data package sent to FDA, Merke intentionally omitted clinical data that showed Vioxx to be contra-indicated for people with cardiovascular disease, since its COX2 inhibitor also inhibited the COX1 enzyme necessary for cardiovascular system repair. The result was over 100,000 premature deaths.

    Kenneth Frazier used a strategy of attacking and intimidating plaintiffs in order to get favorable court results. It worked for awhile, but the truth finally caught up to him, as multiple investigators laid bare the fraud. In fact, there were several entities that considered charging him with negligent homicide.

    Kenneth Frazier was negotiating Merke's liability with the PA OAG at the same time he was doing their bidding as chairman of the Special Investigative Committee. He was in cahoots with Louis Freeh, who was promptly hired by Merke's legal representative Pepper Hamilton at the report's conclusion.

    Conflict of interest?? Even Kathleen the Klewless Kane remarked at how Merke made out like a bandit, but it was a done deal by the time she took office.

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