Law & the Courts

Court Taps Lawyer Who Defended Carter Page Warrant to Advise FBI on FISA Reform

The FBI building is seen after Special Counsel Robert Mueller reportedly handed in a long awaited report on his investigation into Russia’s role in the 2016 presidential election and any potential wrongdoing by U.S. President Donald Trump in Washington, U.S., March 22, 2019. (Joshua Roberts/Reuters)

Judge James E. Boasberg, head of the FISA court, appointed ex-Department of Justice official David Kris as an adviser to help review the FBI’s handling of the Carter Page FISA warrants, which were exposed as deeply flawed by Inspector General Michael Horowitz last year.

Kris, a frequent contributor to the left-leaning Lawfare blog and a former assistant attorney general in the Obama DOJ’s national security division, has been an outspoken critic of President Trump’s claims that a “deep-state coup” was orchestrated to undermine his 2016 election. He has also had extensive experience with the FISA Court, having served as an amicus curiae, or special adviser, since March 2016.

Kris has also extensively defended the use of FISA applications to surveil Trump-campaign adviser Carter Page, telling MSNBC’s Rachel Maddow in July 2018 that “it seems to me very likely that if we get below the tip of the iceberg into the submerged parts and more is revealed, it will get worse, not better” for Page, who was accused of being a Russian agent.

Writing for Lawfare at the time, Kris took aim at Representative Devin Nunes’s memo on the use of the Steele dossier in the FBI’s FISA application process following the release of heavily-redacted FISA applications used to surveil Page. “Now we have some additional information in the form of the redacted FISA applications themselves, and the Nunes memo looks even worse,” Kris wrote.

Horowitz’s report last month revealed that many of Nunes’s claims were correct, including his allegation that the FBI knowingly omitted exculpatory evidence that Page was an informant for the CIA in its FISA application, and then doctored an email to reinforce the impression that Page was a Russian agent.

Following the release of the report, Kris admitted that Nunes’s “basic point that this behavior was highly irregular was correct.” But he also slammed attorney general William Barr and U.S. attorney John Durham for undercutting “the absence of evidence of political bias in Crossfire Hurricane” after they announced that they didn’t agree with Horowitz’s conclusion that the probe was properly predicated.

“These FBI errors weren’t political, the IG concluded,” Kris wrote on Twitter, despite Horowitz himself admitting “we did not reach that conclusion” as to whether the FBI was unaffected by political bias during its 2016 Russia investigation.

President Trump tweeted Sunday that Kris had “zero credibility” given his previous comments.

Both Nunes and Page told the Daily Caller they were disgusted by Kris’s appointment.

“It’s hard to imagine a worse person the FISC could have chosen outside Comey, McCabe, or Schiff,” Nunes (R., Calif.) said.

“If there were any hope for the system fixing this FISA mess, it extinguished with David Kris’ appointment,” Page added.

Kris also postulated repeatedly that former special counsel Robert Mueller’s probe into allegations of collusion between Russia and the Trump campaign would result in serious convictions.

“He’s almost like a venture capital incubator who has spun out multiple lines of business,” Kris said of Mueller ahead of the report’s release — which found “no evidence of any collusion.”

“He’s shown us an awful lot, and yet I think there’s an awful lot more to come,” Kris warned.

“I suspect that POTUS and his closest advisors are and should be worried that, depending on the evidence, Mueller’s next steps will make it feel like the walls are closing in,” Kris tweeted in July 2018.

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