Law & the Courts

In Going After Carter Page, Did the FBI and DOJ Abuse the FISA Process?

Department of Justice Inspector General Michael Horowitz before testifying on Capitol Hill in Washington, D.C., June 19, 2018 (Joshua Roberts/Reuters)
The DOJ inspector general is on the case, and there are signs he’ll be tough on the agencies.

Department of Justice inspector general Michael Horowitz announced in March 2018 that his office was reviewing the DOJ’s and FBI’s “compliance with legal requirements, and with applicable DOJ and FBI policies and procedures, in applications filed with the U.S. Foreign Intelligence Surveillance Court (FISC) relating to a certain U.S. person.” In other words, he was asking whether the agencies abused their power in getting warrants to surveil (by then, former) Trump-campaign foreign-policy adviser Carter Page.

More than a year later, we still don’t know much about the course of the IG’s investigation. But that may finally be changing.

Horowitz has one of the best-caulked tubs in town: His team doesn’t leak. But that’s not the only reason info on the Horowitz investigation has been so hard to come by. In addition, his job doesn’t entail bringing revealing indictments along the way.

Robert Mueller’s shop wasn’t particularly leaky either, but long before the special counsel filed his final report, we had learned a lot about where that report was headed. We learned it from looking at who got indicted, what they were indicted for, and the many details in each indictment and descriptive “criminal information.” Those who were paying attention to the special counsel’s various prosecutions couldn’t help but notice that Paul Manafort was jailed for sundry financial improprieties and sheer tackiness (don’t forget the ostrich jacket), but not for conspiring with Russia. Similarly, when the special counsel’s office brought a raft of indictments against a group of Russian-military-intelligence hackers, missing was any knowing connection between team Trump and the accused. Indeed, so professional were the hacking operations described in Mueller’s indictment of the Russians that it is hard to imagine what the hackers could possibly have needed from the amateurs in Trump’s orbit. Such details led many to surmise that Mueller had yet to find collusion, deductions that proved correct.

No such intermediate actions have been taken by IG Horowitz, which has left us in the dark about what sort of report he is preparing. The IG is trying to establish how the counter-intelligence investigation into the Trump campaign got started. That much we know. What we haven’t had any idea about is just how tough Horowitz is willing to be with DOJ and FBI officials should he discover they abused their power.

There have been reasons to doubt he would be very tough. Recall how the IG’s report on the Hillary Clinton email investigation went out of its way to avoid damaging conclusions. Horowitz catalogued the compendious anti-Trump texts sent between FBI agent Peter Strzok and bureau lawyer Lisa Page, but he determined he could not prove their attitudes and opinions biased their official actions. Though “these messages cast a cloud” over the email investigation, Horowitz wrote, “we did not find documentary or testimonial evidence that improper considerations, including political bias, directly affected the specific investigative decisions we reviewed.” In other words, short of a memo from Strzok admitting his aversion to Trump was the reason for particular actions, Horowitz was not willing to declare there had been political bias in play.

It may be different this time around. Natasha Bertrand is a reporter with extensive sources among the cadres of senior DOJ and FBI elites who have been fired, been demoted, or retired in the last couple of years. These are the very people who are the objects of the IG’s efforts, and they don’t like where things are headed.

“Former U.S. officials interviewed by the inspector general were skeptical about the quality of his probe,” Bertrand wrote in Politico last week. “They emphasized to Horowitz that information in a warrant application need not be wholly verified, as long as the reliability of the source of the information is disclosed to the court.” Democrats have insisted that the FISA court was given fair warning that Christopher Steele’s dossier was opposition research; Republicans have scoffed at the way Steele working for the Clinton campaign was described: “The FBI speculates that the identified U.S. person [Steele] was likely looking for information that could be used to discredit Candidate #1’s [Donald Trump’s] campaign.” Horowitz seems to have been unpersuaded that weasel words such as “speculates” and “likely looking” fulfilled the Justice Department’s obligations to the FISA court. Or as the unhappy former officials put it, “the inspector general seemed neither well-versed in the FISA process nor receptive to the explanations.”

Not only is the IG misinformed, according to Bertrand’s sources, he’s prickly. Consider this description of Horowitz’s frame of mind regarding demoted DOJ attorney Bruce Ohr: “The Inspector General is apparently irked by Ohr’s decision to maintain contact with Steele after the bureau temporarily cut ties with the British operative in October 2016.” Bertrand wrote. Not “concerned.” Not “disturbed.” Not “alarmed.” No, the IG is “irked,” a word that conveys an unprofessional personal pique.

Add up all this criticism — that the IG’s probe is of dubious “quality”; that Horowitz exposed his ignorance of the “FISA process”; that he is too hardheaded to listen to “explanations”; that the IG is prone to being “irked” — and what comes through isn’t a frustration with Horowitz’s failures, but fear of what he may do. Thus the need to discredit him preemptively.

That it hasn’t worked yet doesn’t mean the “former U.S. officials” won’t keep trying.

Eric Felten writes the "Downtime" column for the Washington Examiner.

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