On a sleepy summer Saturday, after months of stonewalling, the FBI dumped 412 pages of documents related to the Carter Page FISA surveillance warrants — the applications, the certifications, and the warrants themselves. Now that we can see it all in black and white — mostly black, as they are heavily redacted — it is crystal clear that the Steele dossier, an unverified Clinton-campaign product, was the driving force behind the Trump–Russia investigation.
Based on the dossier, the FBI told the FISA court it believed that Carter Page, who had been identified by the Trump campaign as an adviser, was coordinating with the Russian government in an espionage conspiracy to influence the 2016 election.
This sensational allegation came from Christopher Steele, the former British spy. The FISA court was not told that the Clinton campaign was behind Steele’s work. Nor did the FBI and Justice Department inform the court that Steele’s allegations had never been verified. To the contrary, each FISA application — the original one in October 2016, and the three renewals at 90-day intervals — is labeled “VERIFIED APPLICATION” (bold caps in original). And each one makes this breathtaking representation:
The FBI has reviewed this verified application for accuracy in accordance with its April 5, 2001 procedures, which include sending a copy of the draft to the appropriate field office(s).
In reality, the applications were never verified for accuracy.
What ‘Verify’ Means
Consider this: The representation that the FBI’s verification procedures include sending the application to “appropriate field offices” is standard in FISA warrant applications. It is done because the FBI’s Domestic Investigations and Operations Guide (DIOG) mandates that the bureau “ensure that information appearing in a FISA application that is presented to the [Foreign Intelligence Surveillance Court] has been thoroughly vetted and confirmed.” (See House Intelligence Committee Chairman Devin Nunes March 1, 2018, letter to Attorney General Jeff Sessions, embedded here.) The point is to assure the court that the FBI has corroborated the allegations in the warrant application in the usual way.
A hypothetical shows how this works. Let’s say that X, an informant, tells the FBI in Washington that Y, a person in St. Louis, told him that Z, the suspect, is plotting to rob the bank.
X’s story is unverified; he doesn’t know anything firsthand about Z — he only knows what Y has told him. Obviously, then, the FBI does not instantly run to court and seek a warrant against Z. Instead, the bureau sends an investigative “lead” from headquarters in Washington to the FBI field office in St. Louis. FBI agents in St. Louis then go find and interview Y. Based on that interview, the FBI gathers supporting information (perhaps physical surveillance of Z, scrutiny of available documents and records about Z, etc.). Only then, after debriefing the witness with competent knowledge, do the Justice Department and FBI seek a warrant against Z from the court. In the application, they explain to the judge that they have verified X’s information by interviewing Y and then corroborating Y’s version of events. In fact, if they get solid enough information about Z from Y, there may be no reason even to mention X, whose tip to the FBI was sheer hearsay.
But that is not what happened with the Carter Page FISA warrants.
Were the allegations thoroughly vetted and confirmed by proof independent of Steele before being presented to the FISA court? No, they were not.
The FBI presented the court with allegations posited by Steele. He is in the position of X in our hypothetical. He is not the source of any of the relevant information on which the court was asked to rely for its probable-cause finding that Page was a clandestine agent of Russia. In this context, source means a reliable witness who saw or heard some occurrence on which the court is being asked to base its ruling.
Steele has not been in Russia for about 20 years. In connection with the dossier allegations, he was merely the purveyor of information from the actual sources — unidentified Russians who themselves relied on hearsay information from other sources (sometimes double and triple hearsay, very attenuated from the supposed original source).
In each Carter Page FISA warrant application, the FBI represented that it had “reviewed this verified application for accuracy.” But did the bureau truly ensure that the information had been “thoroughly vetted and confirmed”? Remember, we are talking here about serious, traitorous allegations against an American citizen and, derivatively, an American presidential campaign.
When the FBI averred that it had verified for accuracy the application that posited these allegations, it was, at best, being hyper-technical, and thus misleading. What the bureau meant was that its application correctly stated the allegations as Steele had related them. But that is not what “verification” means. The issue is not whether Steele’s allegations were accurately described; it is whether they were accurate, period. Were the allegations thoroughly vetted and confirmed by proof independent of Steele before being presented to the FISA court — which is what common sense and the FBI’s own manual mean by “verified”?
No, they were not.
There Is No Reason to Believe the Redactions Corroborate Steele
I have been making this point for months. When I made it again in a Fox and Friends interview on Sunday morning, critics asked how I could say such a thing when the warrants are pervasively redacted — how could I be so sure, given all we concededly don’t know, that the redactions do not corroborate Steele?
The critics’ tunnel vision on the redactions ignores the months of hearings and reporting on this core question, which I’ve continuously detailed. Here, for example, is what two senior Judiciary Committee senators, Charles Grassley and Lindsey Graham, wrote in a classified memo early this year after reviewing FISA applications (the memo was finally declassified and publicized over the objections of the FBI):
The bulk of the [first Carter Page FISA] application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier. The application appears to contain no additional information corroborating the dossier allegations against Mr. Page.
The senators went on to recount the concession by former FBI director James Comey that the bureau had relied on the credibility of Steele (who had previously assisted the bureau in another investigation), not the verification of Steele’s sources. In June 2017 testimony, Comey described information in the Steele dossier as “salacious and unverified.”
Moreover, the FBI’s former deputy director, Andrew McCabe, told Congress that the bureau tried very hard to verify Steele’s information but could provide no points of verification beyond the fact that Page did travel to Russia in July 2016 — a fact that required no effort to corroborate since the trip was unconcealed and widely known. (Page delivered a public commencement address at the New Economic School.) Furthermore, in British legal proceedings, Steele himself has described the information he provided to the FBI as “raw intelligence” that was “unverified.”
I freely acknowledge that we do not know what the redactions say. But we have been very well informed about what they do not say. They do not verify the allegations in the Steele dossier. I have no doubt that they have a great deal to say about Russia and its nefarious anti-American operations. But the FBI has been taking incoming fire for months about failing to corroborate Steele. No institution in America guards its reputation more zealously than does the FBI. If Steele had been corroborated, rest assured that the bureau would not be suffering in silence.
When the government seeks a warrant, it is supposed to show the court that the actual sources of information are reliable.
Plus, do you really think the FBI and Justice Department wanted to use the Steele dossier? Of course they didn’t. They undoubtedly believed Steele’s allegations (the applications say as much). That is no surprise given how much their top echelons loathed Donald Trump. But they were also well aware of the dossier’s significant legal problems — the suspect sourcing, the multiple hearsay. If they had solid evidence that verified Steele’s allegations, they would have used that evidence as their probable cause showing against Page. Instead, they used the dossier because, as McCabe told the House Intelligence Committee, without it they would have had no chance of persuading a judge that Page was a clandestine agent.
Whatever is in the redactions cannot change that.
There Is No Vicarious Credibility
To repeat what we’ve long said here, there is no vicarious credibility in investigations. When the government seeks a warrant, it is supposed to show the court that the actual sources of information are reliable — i.e., they were in a position to see or hear the relevant facts, and they are worthy of belief. It is not sufficient to show that the agent who assembles the source information is credible.
The vast majority of our investigators are honorable people who would never lie to a judge. But that is irrelevant because, in assessing probable cause, the judge is not being asked to rely on the honesty of the agent. The agent, after all, is under oath and supervised by a chain of command at the FBI and the Justice Department; the judge will generally assume that the agent is honestly and accurately describing the information he has gotten from various sources.
The judge’s main task is not to determine if the agent is credible. It is to weigh the reliability of the agent’s sources. Are the sources’ claims supported by enough evidence that the court should approve a highly intrusive warrant against an American citizen?
Here, Steele was in the position of an investigative agent relaying information. He was not a source (or informant) who saw or heard relevant facts. Even if we assume for argument’s sake that Steele is honest and reliable, that would tell us nothing about who his sources are, whether they were really in a position to see or hear the things they report, and whether they have a history of providing accurate information. Those are the questions the FBI must answer in order to vet and confirm factual allegations before presenting them to the FISA court. That was not done; the FBI relied on Steele’s reputation to vouch for his source’s claims.
The FISA Judges
In my public comments Sunday morning, I observed that the newly disclosed FISA applications are so shoddy that the judges who approved them ought to be asked some hard questions. I’ve gotten flak for that, no doubt because President Trump tweeted part of what I said. I stand by it. Still, some elaboration, which a short TV segment does not allow for, is in order.
I prefaced my remark about the judges with an acknowledgment of my own personal embarrassment. When people started theorizing that the FBI had presented the Steele dossier to the FISA court as evidence, I told them they were crazy: The FBI, which I can’t help thinking of as my FBI after 20 years of working closely with the bureau as a federal prosecutor, would never take an unverified screed and present it to a court as evidence. I explained that if the bureau believed the information in a document like the dossier, it would pick out the seven or eight most critical facts and scrub them as only the FBI can — interview the relevant witnesses, grab the documents, scrutinize the records, connect the dots. Whatever application eventually got filed in the FISA court would not even allude en passant to Christopher Steele or his dossier. The FBI would go to the FISA court only with independent evidence corroborated through standard FBI rigor.
Should I have assumed I could be wrong about that? Sure, even great institutions go rogue now and again. But even with that in mind, I would still have told the conspiracy theorists they were crazy — because in the unlikely event the FBI ever went off the reservation, the Justice Department would not permit the submission to the FISA court of uncorroborated allegations; and even if that fail-safe broke down, a court would not approve such a warrant.
It turns out, however, that the crazies were right and I was wrong. The FBI (and, I’m even more sad to say, my Justice Department) brought the FISA court the Steele-dossier allegations, relying on Steele’s credibility without verifying his information.
It turns out, however, that the crazies were right and I was wrong.
I am embarrassed by this not just because I assured people it could not have happened, and not just because it is so beneath the bureau — especially in a politically fraught case in which the brass green-lighted the investigation of a presidential campaign. I am embarrassed because what happened here flouts rudimentary investigative standards. Any trained FBI agent would know that even the best FBI agent in the country could not get a warrant based on his own stellar reputation. A fortiori, you would never seek a warrant based solely on the reputation of Christopher Steele — a non-American former intelligence agent who had political and financial incentives to undermine Donald Trump. It is always, always necessary to persuade the court that the actual sources of information allegedly amounting to probable cause are believable.
Well, guess what? No one knows that better than experienced federal judges, who deal with a steady diet of warrant applications. It is basic. Much of my bewilderment, in fact, stems from the certainty that if I had been so daft as to try to get a warrant based on the good reputation of one of my FBI case agents, with no corroboration of his or her sources, just about any federal judge in the Southern District of New York would have knocked my block off — and rightly so.
That’s why I said it.
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