This post was originally published on The Federalist.
Last Friday, the Department of Justice (DOJ) missed another deadline to comply with subpoenas issued by the House Permanent Select Committee on Intelligence (HPSCI). The DOJ’s latest episode of stonewalling prompted HPSCI Chair Devin Nunes (R-CA) to suggest that President Donald Trump intervene.
While the DOJ had turned over some of the subpoenaed information, Nunes told Fox News’ Jeanine Pirro that the House still does not have critical documents detailing the FBI’s use of informants to spy on the Trump campaign prior to the official launch of the Russia collusion investigation, dubbed Crossfire Hurricane.
Nunes also suggested Trump declassify the Foreign Intelligence Surveillance Act (FISA) applications used to obtain a court order to conduct electronic surveillance on former Trump campaign advisor Carter Page. “I think the FISA is totally fraudulent, 100 percent fraudulent,” the California congressman declared, adding that by releasing the FISA applications, the public can assess whether Obama officials and career DOJ and FBI employees abused the FISA process or whether seeking a FISA warrant on Page was justified, as Democrats continue to maintain. Declassifying the FISA applications will help us answer “who’s telling the truth,” Nunes said.
Nunes isn’t wrong. But rather than wait for President Trump to act, the HPSCI chair should consider drafting a second memorandum as a follow-up to the memorandum released in February. While the February memo exposed several misleading facts and material omissions in the Page FISA applications, since then more details have emerged, and these new facts indicate Obama administration officials and career FBI and DOJ employees misled the FISA court in more ways than previously thought.
Before looking at the new evidence of abuse of the FISA process, here’s a quick refresher on FISA, the background to the Page FISA applications, and the misleading facts and material omissions identified in Nunes’ February memo.
Here’s Your FISA Refresher
Initially passed by Congress in 1978—but amended and reauthorized several times—FISA currently provides the attorney general authority to conduct electronic surveillance, without a court order, for up to a year of communications “used exclusively between or among foreign powers.” However, if the government seeks to electronically surveil a U.S. citizen, the attorney general must obtain a court order from the FISA court authorizing the wiretapping.
To obtain a court order, the DOJ must file a FISA application with one of the 11 federal district court judges the chief justice of the U.S. Supreme Court has appointed to serve on the FISA court. The FISA application must establish “probable cause” that the target was “an agent of a foreign power” and was engaged in “activities [that] involve or may involve a violation of the criminal statutes of the United States.”
The FISA application is filed ex parte and under seal, meaning the target receives no notice of the application, has no opportunity to challenge the government’s assertions, and the information provided to the FISA court remains secret even if the target is later prosecuted criminally. A surveillance “order on an American citizen must be renewed by the [FISA court] every 90 days and each renewal requires a separate finding of probable cause.”
Background on the FISA Orders Issued Against Carter Page
Page served as a volunteer campaign advisor for the Trump campaign until he stepped down in late September 2016, following leaks connecting Page to Russia. According to the response memo Rep. Adam Schiff (D-CA) released, the “DOJ first applied to the [FISA court] on October 21, 2016 for a warrant to permit the FBI to initiate electronic surveillance and physical search of Page for 90 days, . . .The Court approved three renewals—in early January 2017, early April 2017, and late June 2017—which authorized the FBI to maintain surveillance on Page until late September 2017.”
Nunes’ HPSCI memo confirmed that former FBI director James Comey certified three of the FISA applications and former deputy director Andrew McCabe certified the fourth, while former deputy attorney general Sally Yates approved the initial October 21, 2016, application and the January 2017 renewal, and then-Acting Deputy Attorney General Dana Boente and Deputy Attorney General Rod Rosenstein signed the June 2017 and September 2017 renewals.
4 Abuses the Nunes Memo Highlighted
Nunes’ February memo on FISA abuse identified four main areas of misconduct by the FBI and DOJ. First, the DOJ abused the FISA process by presenting to the court the unverified “raw intelligence” report of Christopher Steele, commonly known as the Steele dossier.
Nunes stressed in the memo that the dossier “formed an essential part of the Carter Page FISA application” and that McCabe had stated during committee testimony that “no surveillance warrant would have been sought from the FISA [court] without the Steele dossier information.” Additionally, Senate Judiciary Chair Chuck Grassley’s (IA-R) criminal referral of Steele confirmed that “the bulk of the [FISA] application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier.”
But, as Assistant FBI Director Bill Priestap stated, “the Steele dossier was in its ‘infancy’ at the time of the initial Page FISA application,” and Comey testified that the dossier was “unverified.” While Steele was a former (and previously well-respected) agent for British intelligence whom the DOJ and FBI might reasonably believe reliable, it was not Steele’s reliability at issue.
Rather, as I explained previously, “it’s a big problem if the FISA court relied on Steele’s hearsay to grant a surveillance order.” The “evidence” included in the dossier came from unnamed, unverified Russian sources. That “evidence” could not possibly establish probable cause to wiretap Page because “to find probable cause in a case where the informant is of unknown reliability,” “courts insist that the affidavit contain substantial independent police corroboration.”
Further, a conclusory statement by Steele that an informant is a reliable source, “standing alone . . . merit[s] absolutely no weight.” In short, the DOJ never should have presented the Steele dossier to the FISA court.
Nunes’ memo also highlighted a second deficiency in the FISA applications: The DOJ purposefully hid from the FISA court the Clinton campaign and Democratic National Committee’s role in funding the Steele dossier. Given that “Mr. Steele’s information formed a significant portion of the FBI’s warrant application,” excluding this fact prevented the FISA court from properly assessing Steele’s (lack of) credibility.
The FISA applications also proved abusive because the DOJ needed to establish probable cause that Page was “an agent of a foreign power” and was engaged in “activities [that] involve or may involve a violation of the criminal statutes of the United States,” but the FBI lacked reliable evidence to establish these elements. Further, probable cause needed to exist for the initial October 21, 2016 warrant and for each subsequent renewal.
But what evidence existed that Page was an agent of a foreign power engaged in activities in violation of U.S. criminal law? While the Page FISA applications remain under seal, and thus we do not know all the details provided the court, together the Nunes and Schiff memos highlight the salient information and reveal a glaring omission from the FISA application: the lack of any reliable evidence that Page was engaged in criminal activities. Rather, the only evidence that purported to connect Page to criminal activities came from a Yahoo News story that relied on unnamed sources and the unverified Clinton- and DNC-funded Steele dossier.
The Steele dossier claimed that during a July 2016 trip to Russia, Page attended a secret meeting with the head of the Russian-owned oil company Rosneft, Igor Sechin, a “US-sanctioned individual.” According to Steele, an unnamed source who purportedly attended the meeting with Sechin told Steele that Sechin “offered PAGE/TRUMP’s associates the brokerage of up to a 19 per cent (privatised) stake in Rosneft in return [for the lifting of sanctions]. PAGE had expressed interest and confirmed that were TRUMP elected US president, then sanctions on Russia would be lifted.” Significantly, “[t]he Steele dossier was the FBI’s only source for the allegations in the initial application that Page met with particular Russians in July 2016.”
While this statement implicates Page in criminal activities—either that he conducted business with an individual subject to sanctions or he “knowingly assisting clandestine Russian intelligence activities in the U.S.”—this “evidence” could not possibly support a finding of probable cause because courts require independent police corroboration for information provided by sources of unknown reliability.
Yet, “[a]t the time of the initial application, all of the Steele dossier’s specific claims about Page—including that he met with Igor Sechin and Igor Diveykin in Moscow in July 2016—were uncorroborated by any independent source, . . .” In fact, “[t]he FISA application ‘appears to contain no information corroborating the dossier allegations against Mr. Page.” Similarly, the Yahoo News article’s reliance on an unnamed source was not legally sufficient to corroborate the dossier’s assertions. (The FBI would later learn that Steele was that “unnamed source”.)
A fourth abuse of the FISA process was also highlighted in Grassley’s criminal referral of Steele. That referral exposed that the DOJ potentially misrepresented facts relevant to Steele’s credibility four separate times to the FISA court.
As Grassley explained in the criminal referral, “[t]he FBI repeatedly represented to the court that Mr. Steele told the FBI he did not have unauthorized contacts with the press about the dossier prior to October 2016. But Mr. Steele has admitted—publicly before a court of law—that he did have such contacts with the press at this time, and his former business partner Mr. Simpson has confirmed it to the Committee. Thus, the FISA applications are either materially false in claiming that Mr. Steele said he did not provide dossier information to the press prior to October 2016, or Mr. Steele made materially false statements to the FBI.”
In addition to these four instances of abuse previously identified, over the last five months more details have emerged indicating Obama administration officials and career DOJ and FBI employees misled the FISA court and omitted other important information from the FISA application. Here are another six.
1. Misled the FISA Court on Crossfire Hurricane’s Launch
First, it appears likely that the DOJ misled the FISA court on the timing and reason the FBI launched operation Crossfire Hurricane. To justify the DOJ’s decision to seek a court order authorizing surveillance of Page, Schiff highlighted in the Democrat response memo other information contained in the FISA application.
For instance, Schiff stated: “In its October 2016 FISA application and subsequent renewals, DOJ accurately informed the Court that the FBI initiated its counterintelligence investigation on July 31, 2016, after receiving information” concerning Trump campaign foreign policy adviser George Papadopoulos. Schiff pushed the existence of an FBI investigation into possible collusion between the Trump campaign and Russia as evidence that the FISA surveillance order against Page was justified.
It now appears that the FBI took this same approach in the Page FISA application: relying on the existence of an FBI investigation into the Trump campaign to justify a FISA court order to surveil Page. However, we now know that the FBI began investigating the Trump campaign prior to the official launch on July 31, 2016 of Crossfire Hurricane.
Specifically, on July 5, 2016, an FBI legal attaché stationed in Rome flew to London to meet with Steele. While the Steele dossier was not completed until the fall, at this first meeting Steele told the FBI representative that the “Russian regime has been cultivating, supporting and assisting Trump for at least five years” and that Trump “and his inner circle have accepted a regular flow of intelligence from the Kremlin, including on his Democratic and other political rivals.”
Additionally, in early July, an informant with contacts to both the Central Intelligence Agency and MI6, since identified as Stefan Halper, approached Page at a conference in Cambridge. While Halper later reached out to two other individuals connected to the Trump campaign—Papadopoulos and campaign co-chair Sam Clovis—his efforts in early July to engage Page demonstrate the FBI had already focused its investigative efforts on members of the Trump campaign.
In addition to Halper connecting with Page in early July, Lee Smith recently reported that there were at least six additional “instances when campaign advisers were approached with Russia-related offers,” before the FBI supposedly began investigating the Trump campaign as part of Crossfire Hurricane. How many of these outreaches came from fellow FBI informants is yet to be seen.
Whether the DOJ informed the FISA court of the government’s earlier investigative efforts is unclear, but it seems unlikely given Schiff’s statement that the DOJ informed the court that the FBI initiated its counterintelligence investigation on July 31, 2016. If so, the DOJ and FBI misled the FISA court.
By painting the investigation as beginning on July 31, 2016, the DOJ also bolstered its narrative that the FBI launched its investigation into the Trump campaign because it had received information that “individuals linked to Russia” informed Papadopoulos that the Russians had damaging information on Hillary Clinton.
2. Misleading the FISA Court that Papadopoulos Colluded with Russia
Schiff’s February memo also stressed that the FISA application contained information about Papadopoulos’s connections to Russia. However, it now appears that the FBI used Papadopoulos as a pretext to launch Crossfire Hurricane to spy on the Trump campaign.
First, as noted above, the FBI had already targeted the Trump campaign. Second, Papadopoulos’ disclosure—that the Russians had damaging information on Hillary Clinton—did not implicate the Trump campaign in any wrongdoing. Yet Schiff claimed in his memo that the “DOJ would have been negligent in omitting vital information about Papadopoulos and Russia’s concerted efforts,” indicating the DOJ led the FISA court to believe evidence existed of collusion between members of the Trump campaign and Russia.
But there was no evidence of “concerted efforts” between Papadopoulos and Russia. It seems likely, though, that the DOJ led the FISA court to wrongly believe there was, because the FISA applications “relied heavily on Mr. Steele’s dossier claims.” And the first page of the Steele dossier asserted that Trump “and his inner circle have accepted a regular flow of intelligence from the Kremlin, including on his Democratic and other political rivals.”
Page two of the 35-page Steele dossier added: “Source A confided that the Kremlin had been feeding TRUMP and his team valuable intelligence on his opponents, including Democratic presidential candidate Hillary CLINTON, for several years. . . .This was confirmed by Source D, a close associate of TRUMP who had organized and managed his recent trips to Moscow, and who reported, also in June 2016, that this Russian intelligence had been ‘very helpful.’” As noted above, a court cannot rely on uncorroborated evidence from a source of unknown credibility—such as Source A and Source D. Yet, without that information, Papadopoulos’ passing comment about Russia lacks relevance.
3. Misleading Claims that Papadopoulos Was Connected to DNC Hacking
It also appears that the Page FISA application falsely portrayed Papadopoulos as connected to Russia’s hacking of the Democratic National Committee emails and WikiLeaks’ July 2016 release of those emails. Just the timing of the FBI’s initiation of Crossfire Hurricane, on the heels of the WikiLeaks release of the DNC emails, created this impression.
But Schiff’s memo also indicates that the FISA application directly connected Papadopoulos to the Russian hack of the DNC emails, when he stated: “DOJ appropriately provided the Court with a comprehensive explanation of Russia’s election interference, including evidence that Russia courted another Trump campaign advisor, Papadopoulos, and that Russian agents previewed their hack and dissemination of stolen emails.”
Either Schiff misled the public or the DOJ misled the FISA court, because we now know that Papadopoulos had no connection to Russia’s hacking. Rather, at the time the DOJ sought the Page FISA surveillance order (and renewals), the only information the FBI had was that Papadopoulos had communicated with and met with individuals connected with Russia and had attempted to arrange a meeting between Trump (or campaign members) and Putin (or representatives of his government), and that Papadopoulos had said Russia had damaging information on Hillary Clinton. Papadopoulos never claimed knowledge of the Russian hack of DNC emails.
In fact, in September 2016, before the first FISA surveillance order, the individual since revealed as an FBI informant (Halper) reportedly attempted to get Papadopoulos to confirm he knew about the Russia hacking, by saying to the Trump foreign policy advisor: “George, you know about hacking the emails from Russia, right?” “Papadopoulos told Halper he didn’t know anything about emails or Russian hacking.”
So, not only was there no evidence Papadopoulos or others in the Trump campaign were involved in, or knew of, the Russian hacking before the general populace did, there was evidence negating such knowledge. But did the DOJ inform the FISA court of this fact? I very much doubt it.
4. Misleading Claims that Papadopoulos Interacted with Russian Agents
Schiff’s memo also spoke of the need to inform the FISA court of “Papadopoulos’s interaction with Russian agents,” but it now appears that the supposed Russian agent—Maltese professor Joseph Mifsud—was more likely a Western intelligence asset. Did the FBI know this, and if so when? And what did the DOJ tell the FISA court concerning the mysterious Mifsud?
This focus on the FISA applications’ misleading narratives concerning Papadopoulos may seem tangential, but it is not. Rather, as Schiff notes in his memo, the FBI used “Papadopoulos’s interaction with Russian agents, coupled with real-time evidence of Russian election interference,” to provide “the Court with a broader context in which to evaluate Russia’s clandestine activities and Page’s history and alleged contact with Russian officials.”
Schiff’s memo also highlighted the Steele dossier’s claim that during Page’s secret July meeting in Moscow, his Russian connection “disclosed to Page that the Kremlin possessed compromising information on Clinton (‘kompromat’)” and noted “the possibility of its being released to [the Trump] campaign.” Schiff then stressed that “[t]his closely tracks what other Russian contacts were informing another Trump foreign policy advisory, George Papadopoulos.”
In other words, the FBI’s likely false portrayal of Papadopoulos as colluding with a Russian agent on behalf of the Trump campaign to obtain the DNC’s emails helped justify the FISA applications’ requests for an order to conduct surveillance on Page.
What remains untainted in the Page FISA applications would be limited, then, to general details concerning “Russia’s aggressive covert campaign to influence our elections,” and Page’s numerous connections to Russia and past efforts by Russian intelligence officers to target Page for recruitment. But these facts are insufficient to establish the probable cause necessary to obtain a FISA surveillance order.
5. Misleading about Page’s Connections with Russian Agents
Further, it appears that the DOJ withheld from the FISA court some material facts concerning past efforts by Russian intelligence officers to target Page for recruitment. Specifically, as Nunes noted, the Russian intelligence officer who attempted to recruit Page was convicted of espionage-related charges in federal court and Page had voluntarily spoken to the FBI about his connections to that individual and Page’s information assisted the government in its prosecution of the Russian spy. How much detail the DOJ provided the FISA court concerning Page’s past cooperative efforts is unknown.
6. Political Bias of the DOJ and FBI Official Involved in the FISA Applications
Schiff previously downplayed problems with the FISA applications by noting “Page ended his formal affiliation with the campaign months before DOJ applied for a warrant,” as if that fact proved the DOJ and FBI were not politically motivated. But we now know the special counsel’s modus operandi for trying to sink Trump: Squeeze those connected to Trump to push them to reveal something nefarious about the commander-in-chief.
We saw this approach with Papadopoulos and Michael Flynn, who were charged with lying to the FBI, pled guilty, and are now cooperating with Robert Mueller’s investigation into potential collusion. We also see that now in the criminal case against Paul Manafort, which Mueller is prosecuting even though the charges are completely unrelated to Russia. The presiding judge in Manafort’s criminal case put it aptly:
“Given the investigation’s focus on President Trump’s campaign,” everyone can “see that the true target of the Special Counsel’s investigation is President Trump, not defendant, and that defendant’s prosecution is part of that larger plan,” Judge T. S. Ellis wrote. “Specifically, the charges against defendant are intended to induce defendant to cooperate with the Special Counsel by providing evidence against the President or other members of the campaign.”
Claims that the DOJ and FBI were not politically motivated in seeking a FISA surveillance order against Page are also no longer believable. In February, when Nunes released his memo detailing some of the evidence of abuse of the FISA process, we knew about some of the anti-Trump text messages the FBI agents involved in Crossfire Hurricane, Peter Strzok and Lisa Page, exchanged. Their bias was clear then, yet Schiff defended them as “career professionals.”
Since then, DOJ Inspector General Michael Horowitz revealed the discovery of text messages between the couple, in which Page begged Strzok to assure her that Trump was “not ever going to become president.” Strzok complied, responding: “No. No he’s not. We’ll stop it.” Page has since resigned and Strzok has reportedly lost his security clearance.
Schiff also downplayed Strzok and Page’s impact on the FISA filings, by noting that “neither Strzok nor Page served as affiants on the applications, which were the product of extensive and senior DOJ and FBI review.” However, since February, several new revelations render this defense laughable.
First, in March 2018, Attorney General Jeff Sessions fired McCabe for lying under oath and for making “unauthorized disclosure to the news media.” McCabe, along with also fired Comey, were the two “senior” FBI agents who certified the FISA warrants for Page. Since then, both McCabe and Comey (as well as Strzok and Page) were the subject of Horowitz’s scathing criticism for professional misconduct.
The “senior DOJ” review proves no more reassuring, initially because Yates approved the first two FISA applications, and her anti-Trump bias is clear. Second, even though Trump appointee Rosenstein approved the final FISA application, as Rosenstein’s June 28, 2018 testimony before the House Judiciary Committee made clear, the FBI provides the DOJ the completed FISA application and a team of DOJ attorneys then brief Rosenstein on the details. So, in approving the FISA application, Rosenstein must rely on the accuracy and honesty of the FBI agents involved, as well as his team of DOJ attorneys who brief him on the content of the application.
Rosenstein’s testimony, then, brings us back to the FBI agents involved and Strzok and Page. While Schiff stressed that the couple had not signed affidavits filed with the FISA courts, that does not mean they were not involved in providing the misleading or incomplete information to the FBI agent who did. Given that Strzok oversaw Crossfire Hurricane, this is virtually assured. Further, who exactly drafted the Page FISA applications is unclear—even to current FBI Director Christopher Wray who testified alongside Rosenstein in late June, telling the House Judiciary Committee he did not “know who was involved in drafting what FISA application.”
But other than these few tidbits, Rosenstein and Wray remained tight-lipped about the FISA abuse, stressing the ongoing investigation by Horowitz and U.S. Attorney John Huber. When Horowitz and Huber will complete their investigation is unclear, but Nunes need not wait for them.
He needn’t even wait for Rosenstein to comply with the subpoenas or Trump to declassify the totality of the FISA applications: Nunes can and should re-review the FISA applications in light of the new information now known about the DOJ and FBI’s misconduct, and provide the public an analysis of the points above and any other relevant details, and likely involve little, if any, still-classified information.
This post was originally published on The Federalist.