Michael Horowitz’s flawed epistemology

As John discussed below, Michael Horowitz testified before the Senate Judiciary Committee today. He told the committee that there were 17 instances of misconduct by the FBI in connection with the FISA application process.

Horowitz also said that his team found no evidence of intentional misconduct. However, he added that the FBI agents involved were unable to provide satisfactory explanations for their actions.

But the absence of an innocent explanation for bad conduct is evidence that the conduct was intentional and undertaken for a bad reason — here, the desire to injure the target of the FBI’s investigation, which was the Trump campaign.

In an employment discrimination case, an employer’s failure to explain an adverse action against a qualified African-American or female — e.g. failure to hire, failure to promote, firing — is evidence that the decision was the result of racial or gender bias against that person. Indeed, the failure to provide an explanation may, by itself, lead to a finding that the decision was an act of unlawful discrimination.

The same principle applies here.

Consider one example of the misconduct Horowitz identified. An FBI lawyer, Kevin Clinesmith, obtained information that Carter Page, the subject of a FISA order, had gathered intelligence about Russia for that agency and was reliable — a fact that would cut against the notion that Page was working for the Russians. Clinesmith doctored the email conveying this information. He inserted the words “not a source,” even though he had been told that Page was a source.

Clinesmith then passed the doctored email on to the FBI agent who was assigned to affirm under oath the FBI’s allegations to the FISA court. That agent had told Clinesmith that he wanted “a definitive answer to whether Page had ever been a source for another U.S. government agency before he signed the final renewal application.” By doctoring the email, Clinesmith definitively gave the agent an answer he knew was wrong.

We know from direct evidence that Clinesmith was aligned with the resistance to Trump. However, even without that direct evidence, one should conclude, absent a satisfactory explanation for the doctoring, that Clinesmith doctored it intentionally and for a bad motive. Even without direct evidence of bias, one should conclude that Clinesmith was out to get Trump.

But again, there is also direct evidence of this bias.

The same reasoning applies to other instances of FBI misconduct. The FBI failed to tell the FISA court that the Steele report, found by Horowitz to be essential underpinning of the FISA warrant, had been largely disavowed by its primary source. The absence of a satisfactory explanation for this failure is persuasive evidence that the failure was intentional and in bad faith.

Even without direct evidence of bias, one should conclude from this that the FBI personnel involved were desperate to continue their surveillance, despite lacking a sound basis for continuing it. One should infer that their determination to continue the surveillance was rooted in bias against Trump.

But as with Clinesmith, there is also direct evidence of such bias for at least some of the FBI personnel involved — Peter Strzok, for example.

Michael Horowitz declined to draw these conclusions (or to reject them), saying that he doesn’t know the state of mind of the FBI personnel who acted improperly. This epistemological stance may pass muster in philosophy class, but it’s at odds with the law. In the law, as noted above, state of mind can be, and is, inferred from facts like the ones Horowitz did such a good job of uncovering