The First Glimpse into Horowitz’s FISA-Abuse Report

(Jim Bourg/Reuters)
CNN reports that an FBI attorney tampered with documents related to the Carter Page application. How much does it matter?

Is this the tip of a scandalous iceberg? Or is it a signal that Inspector General Michael Horowitz’s much anticipated report on investigative irregularities in the Trump-Russia probe will be much ado about nothing much?

A low-ranking FBI lawyer altered a document that was somehow related to the Obama Justice Department’s application to the Foreign Intelligence Surveillance Court (FISC) for a national-security surveillance warrant. The application, approved by the FISC in October 2016, targeted former Trump campaign adviser Carter Page — an American citizen, former naval intelligence officer, and apparent FBI cooperating witness — as a clandestine agent of Russia. Apparently, the document tampering made at least one of the application’s factual assertions seem more damning than it actually was.

The FBI attorney, who has not been identified, is also said to have falsified an email in an effort to provide back-up support for the fabricated claim. The lawyer, who was reportedly pushed out of the Bureau when the tampering incident came to light, was interviewed in Horowitz’s inquiry and is said to be a subject of the related criminal investigation being conducted by Connecticut U.S. attorney John Durham.

The news was broken on Thursday night by CNN. That in itself is noteworthy. The FBI’s former deputy director Andrew McCabe is a CNN contributor, and the Bureau’s former general counsel James Baker is a frequent CNN guest. The IG’s probe has scrutinized the conduct of both. CNN commentators also include other former federal law-enforcement officials, who have ties to the Bureau and to some of the former officials under scrutiny. CNN’s news story about the evidence tampering is sourced to “several people briefed on the matter,” who were not identified. The IG report is scheduled to be released on December 9, and witnesses have recently been permitted to review a draft of it under tight restrictions.

The ‘Premise’ of the Investigation
CNN adds that some of the witnesses interviewed expect the IG’s report will “find mistakes in the FBI’s handling of the FISA process, but that those mistakes do not undermine the premise for the FBI’s investigation.” The network describes that premise as the conclusion “that Russia interfered in the 2016 election.”

Of course, that only relates half the story — the uncontroversial half. The FBI’s full premise was that the Trump campaign was complicit in Russia’s election interference.

What is in issue is whether there were adequate grounds for suspicion of a Trump–Russia criminal conspiracy — enough to justify the FBI and the Justice Department in taking the fraught step of investigating the incumbent administration’s political opposition during a presidential campaign, exploiting such powerful counterintelligence measures as FISA warrants, the deployment of informants, and collaboration with foreign intelligence services against Americans who worked on the Trump campaign — the kinds of investigative techniques reserved for hostile foreign powers and terrorist organizations.

If the narrative taking shape is that there may have been some abuses but it doesn’t change the fact that Russia meddled in the election, that misses the point. The questions are: What was the FBI’s evidence — which it represented as verified information in the warrant application — that the Trump campaign was in a cyberespionage conspiracy with the Kremlin? What evidence led the Bureau and the Justice Department to allege that Carter Page — who as late as spring 2016 was apparently cooperating in a federal prosecution of Russian spies — was a willful agent of the Putin regime engaged in clandestine activities against his own country?

At the Washington Examiner, Daniel Chaitin and Jerry Dunleavy have a comprehensive report on what is currently known about the alleged document alteration by the FBI attorney. I would just add some relevant details about the lead-up to the FISA surveillance, which are more thoroughly outlined in my recent book, Ball of Collusion.

FBI–DOJ Tensions in Lead-up to FISA Application
Based on public reporting and the texts between then–FBI officials Peter Strzok and Lisa Page, we know that in the weeks before the FISA warrant was issued, there was tension between the FBI, which was pushing for the warrant, and at least one skeptical Justice Department official.

Strzok was the top Bureau counterintelligence investigator on both the Trump-Russia and Clinton emails cases. He was eventually fired after the emergence of his thousands of text messages with Lisa Page, with whom he was romantically involved. Ms. Page, a former FBI lawyer, was counsel to deputy director McCabe. (She is not related to Carter Page.) The texts demonstrated not only a stunning degree of anti-Trump bias, but also indications that the FBI’s upper hierarchy conceived the Trump-Russia investigation as an “insurance policy” out of concern over the longshot possibility that Trump would be elected president.

Although Strzok would later disclaim participation in the Carter Page surveillance application, the texts show he was heavily involved — a fact the FBI and Justice Department attempted to conceal. On October 11, 2016, he told Ms. Page he was “currently fighting with Stu for this FISA” — a reference to Stuart Evans, a lawyer in DOJ’s National Security Division. When the FBI first grudgingly disclosed the Strzok–Page texts, the words “Stu for this FISA” were blacked out.

Subsequent communications, including Ms. Page’s texts to McCabe, indicate that the “holdup” on Justice Department approval of the warrant application related to Evans’s “continuing concerns” about “possible bias of the chs.” The term  “chs” is Bureau-speak for “confidential human source” — a reference to Christopher Steele. He, of course, is the former British spy who, along with his Fusion GPS confederates, authored the infamous Steele dossier — a collection of faux intelligence reports, sensational and lurid, that were produced for the Clinton campaign and the DNC. The dossier alleged that Donald Trump was conspiring with the Kremlin to steal the 2016 election, using Carter Page (whom Trump had never actually met) as a key go-between. The FBI and DOJ used the Steele-dossier allegations as part of the probable cause showing for the FISA warrants.

Evans was obviously worried that the FBI’s proposed warrant application would not supply the court with a forthright rendition of Steele’s biases. Lisa Page indicated to McCabe that this worry was being addressed by “a robust explanation.”

This was a reference to the laborious footnote that eventually made its way into the warrant application. The footnote omitted the facts that Steele’s work was being sponsored by Trump’s opponent in the campaign; that Steele had expressed desperation to defeat Trump; that Steele’s reporting had not, in fact, been verified; and that Steele had already been found to be wrong about basic facts (reporting, for example, that a hub of the purported Trump–Russia conspiracy was the Russian consulate in Miami — which did not exist). The warrant application, moreover, ended up including absurd representations that Steele was not providing his anti-Trump allegations to the press — notwithstanding the media blitz that Steele and Fusion had commenced in mid-September, one resulting article from which was actually relied on as evidence in the warrant application, even as it provided grist for the Clinton campaign’s “Putin puppet” attack on Trump.

I should stress that the unidentified FBI attorney who is the subject of the new document tampering allegation does not appear to be Ms. Page (who was operating at a higher level). The unidentified attorney is said to have altered the information and to have provided the falsified supporting email during talks with the Justice Department about the factual basis for the warrant application.

To obtain a FISA warrant for an American target, the government must convince the court that the target is knowingly engaged in clandestine activities on behalf of a foreign power, and that the activities involve or may involve a violation of federal criminal law. Even though the Justice Department and FBI four times made such claims under oath about Page (in the original October 2016 warrant and three subsequent 90-day renewals), he has never been charged with a crime.

Questions the IG Report Should Answer
Press stories, based on unnamed sources who’ve seen a draft of the IG’s magnum opus, indicate that Horowitz will conclude that the FBI attorney’s document tampering did not affect the overall validity of the warrant application.

I presume this means it was not make-or-break on the issue of probable cause. Under federal jurisprudence, false information does not necessarily invalidate a warrant. Instead, the warrant is deemed valid if, were the false information stripped out, the remaining information would still have been sufficient to establish probable cause.

It should go without saying by now that what’s being reported is but a fraction of the problematic information provided to the FISC. I would briefly rehearse four points:

1. The Steele-dossier claims formed a substantial basis for the warrant application. McCabe has assessed that there would not have been probable cause without them; others have indicated that it was a 50–50 proposition, at best. It is impossible for us to make a judgment about this without knowing the totality of the non-dossier information.

2. What we do know is not reassuring. While much has been made of the Steele dossier’s blatant unreliability, not enough attention has been paid to another matter on which the FBI and DOJ relied: the attempts by Russian spies to recruit Page as an asset between 2008 and 2013.

The government made much of this in the warrant application. Downplayed, however, were the facts that Page cooperated with the government in the prosecution of the spies; that the Justice Department used Page’s information in its arrest complaint; that Page submitted to numerous interviews by the federal investigators, including as late as spring 2016, when (according to Page) he was being prepared to testify as a government witness, which testimony became unnecessary when the spy pled guilty; and that the Russian spies against whom he cooperated regarded him as an “idiot” in communications intercepted by the feds.

Did the FBI tell the FISC everything it should have been told about the spy case? If so, what made the FBI believe that Russia, with its highly competent intelligence services supposedly in a high-stakes conspiracy with Trump, would trust as a key conspirator a man who (a) the Kremlin believed was incompetent and (b) had helped the U.S. prosecute the Kremlin’s operatives?

3. The FBI’s many interviews with Page are highly relevant. So is the fact that, while the FBI was pushing for the warrant, Page — in reaction to the Steele-generated negative publicity against him — fired off a letter to FBI director James Comey, pleading to meet with agents in order to assuage any concerns they might have about his contacts with Russians.

As I’ve pointed out a number of times, federal law requires agents seeking an eavesdropping warrant to explain to the court why less intrusive alternative investigative techniques would not be adequate to obtain the information they claim to need. Why did the FBI and DOJ believe they needed an eavesdropping warrant enabling them to monitor all of Page’s communications (and to review prior stored texts, emails, and phone messages), if Page was more than willing to submit to an interview — under circumstances where there was a long history of such interviews, and where the government had found Page’s information sufficiently credible to rely onit in an arrest complaint (and to prepare him to testify as a government witness, Page says)?

What did the FBI and DOJ tell the court about why interviewing Page would not adequately serve their purposes?

4. Much of the information offered as probable cause involved Russia’s history of anti-American operations and its cyber-meddling in the 2016 election. These matters are not in dispute, but they do not mean that Carter Page and the Trump campaign were complicit as clandestine agents of the Putin regime.

This last point brings us back to the question raised earlier: Are the investigators and their media allies laying the groundwork to argue that, because Russia did interfere in the 2016 campaign, any “mistakes” in using FISA or other investigative tactics do not detract from the overall validity of the investigation?

If evidence tampering by a low-ranking FBI lawyer ended up making no difference to the validity of the Carter Page FISA warrants, that is hardly the stuff of scandal. It would be small-scale misconduct of the kind that unavoidably happens from time to time, and that the government has handled appropriately — by forcing the culprit out of the FBI and referring him to U.S. attorney Durham for possible prosecution.

On the other hand, if the Horowitz report is going to take the tack that, because Russia did in fact meddle in the 2016 campaign, any investigative overreach amounts merely to regrettable but understandable overzealousness, that would be a very big deal — and not in a good way.

The question is not whether Russia meddled. On four separate occasions, the FBI and the Justice Department solemnly told the FISC there were grounds to believe that Carter Page and others in the Trump campaign, potentially including Donald Trump himself, were complicit in a criminal conspiracy with the Kremlin. The question is: What was their compelling basis for making that explosive representation, which breached the American norm against government intrusion in our political process?

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