The Steele Dossier and the perils of political insurance policies

The wonderful thing about insurance is that you can cover just about anything, so long as you are prepared to pay the premium.

Model Heidi Klum insured her legs for $2.2 million, twice the amount of the insurance on fabled actress Betty Grable’s limbs. Lloyd’s of London once insured a 12-foot cigar. KISS bassist Gene Simmons’ tongue ($1 million), Pittsburgh Steeler Troy Polamalu’s hair ($1 million), Bruce Springsteen’s vocal cords ($6 million), even Rolling Stone Keith Richards’ middle finger ($1.6 million) — all insured.

But what about an election?

According to former British spy Christopher Steele, that was precisely the concern of the Clinton campaign when it paid him and research firm Fusion GPS to compile his controversial dossier on Donald Trump. Despite being widely declared the shoo-in for the White House, the Clinton campaign wanted insurance — and Steele and Fusion were there, as one insurer famously says, “like a good neighbor.”{mosads}

Steele was recently called for a deposition in London in a defamation action filed by three Russian bankers for allegedly false claims in the dossier. Steele’s statements included some surprising admissions, particularly regarding the purpose of his contract with the U.S. law firm of Perkins Coie.

Throughout the campaign, and for many weeks after, the Clinton campaign denied any involvement in the creation of the dossier that was later used to secure a secret surveillance warrant against Trump associates during the Obama administration. Journalists later discovered that the Clinton campaign hid the payments to Fusion as a “legal fees” among the $5.6 million paid to the law firm. New York Times reporter Ken Vogel at the time said that Clinton lawyer Marc Elias had “vigorously” denied involvement in the anti-Trump dossier. When Vogel tried to report the story, he said, Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman likewise wrote: “Folks involved in funding this lied about it, and with sanctimony, for a year.” Even when Clinton campaign chairman John Podesta was questioned by Congress on the matter, he denied any contractual agreement with Fusion GPS. Sitting beside him was Elias, who helped devise contract.

Later, confronted with the evidence, Clinton and her campaign finally admitted that the dossier was a campaign-funded document that was pushed by Steele and others to the media.

In one of his answers to an interrogatory, Steele explained: “Fusion’s immediate client was law firm Perkins Coie. It engaged Fusion to obtain information necessary for Perkins Coie LLP to provide legal advice on the potential impact of Russian involvement on the legal validity of the outcome of the 2016 U.S. Presidential election. Based on that advice, parties such as the Democratic National Committee and HFACC Inc. (also known as ‘Hillary for America’) could consider steps they would be legally entitled to take to challenge the validity of the outcome of that election.”

Steele’s testimony suggests that the dossier was not just a political hit job but a type of insurance for a catastrophic political event. 

The dossier ultimately found its way from a Fusion GPS employee, Nellie Ohr, to her husband, Justice Department official Bruce Ohr. From there, it became the basis of Foreign Intelligence Surveillance Act (FISA) warrants targeting figures like Trump campaign adviser Carter Page, signed off by the Obama administration with the involvement of later-fired FBI director James Comey and his deputy, Andrew McCabe. (Ohr was later demoted over his involvement.) Page was never charged with a crime while key players like Fusion GPS co-founder Glenn Simpson invoked the Fifth Amendment privilege against self-incrimination to refuse to answer further questions from Congress.

The FBI knew the dossier was part of a Clinton campaign operation but told the secret FISA court that it was only speculating about a possible political motive for the material. Notably, however, the FBI’s warrant application indicates that Steele denied knowing the purpose behind the dossier. In the 412-page application, the FBI buries the issue in a footnote, stating that Steele was hired by Fusion GPS to conduct research on Trump and that “The identified U.S. person never advised [Steele] as to the motivation behind the research into [Trump] ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1’s campaign.”

We now know that Steele and Fusion GPS aggressively shopped the dossier with any reporter who would listen, while also pitching it to Ohr and the FBI. Notably, the dossier story was broken by investigative journalist Michael Isikoff who recently admitted, “When you actually get into the details of the Steele dossier, the specific allegations, we have not seen the evidence to support them, and, in fact, there’s good grounds to think that some of the more sensational allegations will never be proven and are likely false.”

Steele’s recent comments magnify the concerns. Ultimately, the dossier was used for precisely the purpose described by Steele: It led to the special counsel investigation, which quickly diverted to other criminal allegations unrelated to the dossier’s most sensational claims, like hacking or coordination with WikiLeaks and Russian trolling operations. Indeed, Democratic leaders’ new claims of a “massive fraud” in the election is the alleged violation of campaign finance laws to pay hush money to a porn star and former Playboy bunny.

I supported the appointment of special counsel Robert Mueller, and still support the completion of his investigation without interference. Yet, we should not be willfully blind to the implications of the dossier’s use to support a secret FISA investigation. {mossecondads}

Some of us have long criticized the secret court as operating below the constitutional standard set out in the Fourth Amendment for searches and seizures. In this case, using that secret court, a dossier funded by the Democratic presidential candidate was given to the outgoing Democratic administration to investigate advisers to the Republican challenger and his business dealings. That alone should be deeply troubling, even without the unproven allegations.

Of course, Clinton wasn’t the only candidate seeking political insurance. The controversial Trump Tower meeting with Russian operatives was held to hear promised evidence of alleged criminality by Clinton and her foundation; both candidates sought information from Russian sources to undermine each other. That may be unseemly, but it’s not unlawful.

The submission of at least one of Mueller’s reports may be just weeks away. Regardless of whether he finds crimes, it was important for this investigation to reach its proper conclusions. Yet, no matter how it ends, concerns will remain over how it began … as a political insurance plan.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.