13 Things To Look For In The Inspector General FISA Abuse Report
Inspector General Michael Horowitz’s investigation was limited in scope and thus will leave unanswered many of the questions surrounding the FBI’s targeting of the Trump campaign.
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Today, Department of Justice Inspector General Michael Horowitz will reportedly issue his findings on the U.S. Department of Justice and FBI’s compliance (or lack thereof) with the legal requirements and internal policies and procedures related to the Carter Page Foreign Intelligence Surveillance Act (FISA) applications. Horowitz’s report follows a 20-month investigation into possible FISA abuse, as well as an inquiry into the DOJ and FBI’s relationship and communications with dossier author Christopher Steele, triggered by requests from then-Attorney General Jeff Sessions and members of Congress.
Horowitz’s investigation was limited in scope and thus will leave unanswered many of the questions surrounding the FBI’s targeting of the Trump campaign in the spring and summer of 2016—concerns hopefully addressed soon by Attorney General William Barr and the federal prosecutor he assigned to investigate those matters, Connecticut U.S. Attorney John Durham. But, given the breadth of the already released details indicating substantial abuse of the FISA process, the IG’s report should address a plethora of problems, some identified by then-House Intelligence Committee chairman, Devin Nunes, and many more discovered as additional facts became known while the Russia collusion hoax unraveled over the last two years.
1. Concerns about Federal Surveillance of Carter Page
Before looking at a list of concerns Horowitz’s forthcoming report should address, here are the basics concerning the Page FISA warrants. According to the response memo Rep. Adam Schiff (D-CA) released to counter Nunes’ memo, 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.”
We also know from “Nunes’ HPSCI memo 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.”
Horowitz should have addressed the initial question of whether, before the DOJ sought and obtained the first FISA surveillance order in October 2016 for Page, federal prosecutors filed an earlier FISA application the FISA court denied. If so, the question quickly turns to: What changed?
Then, the foremost question the IG’s report should address concerns the DOJ’s basis for believing that probable cause supported the Page FISA applications. Because Page is a U.S. citizen, to obtain a surveillance order under FISA, “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.’” And “probable cause needed to exist for the initial October 21, 2016 warrant and for each subsequent renewal.”
2. What Criminal Allegations Existed Against Page?
While the DOJ has released redacted versions of the four FISA applications, the specific criminal statutes Page’s activities purportedly violated have not yet been revealed. The IG should both identify the crimes the FISA applications relied upon and address whether the FISA applications established probable cause.
This analysis will be key because everything known to date indicates the DOJ’s FISA applications failed to present evidence sufficient to establish probable cause that Page violated U.S. criminal law. The only apparent evidence suggesting criminal activity by Page came from the Steele dossier, wherein the former MI6 spy 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.’” Steele, relying on an unnamed source, further stated 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].”
But as I have previously explained, “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,” and Steele’s sub-sources were of unknown reliability. Also, “[t]he FISA application ‘appears to contain no information corroborating the dossier allegations against Mr. Page.”
Further, former FBI Deputy Director “Andrew McCabe acknowledged that without the dossier the FBI could not have claimed probable cause for the surveillance.” Senate Judiciary Chair Chuck Grassley’s (R-Iowa) criminal referral of Steele also 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.” Under these circumstances, any analysis of the DOJ and FBI’s handling of the FISA applications should necessarily address the question of probable cause and what appears to be the utter lack of evidence that Page was engaged in criminal activity.
3. Did the FBI Follow the Woods Procedures?
A second core area of the IG’s report should address the so-called Woods procedures. The Woods procedures, named after FBI agent Michael Woods, “were instituted in April 2001 to ‘ensure accuracy with regard to … the facts supporting probable cause” after recurring instances, presumably inadvertent, in which the FBI had presented inaccurate information to the FISA court.’” Former FBI agent Asha Rangappa explained the procedures last year at JustSecurity.org, which The Hill later summarized:
The completed FISA application requires approval through the FBI chain of command ‘including a Supervisor, the Chief Division Counsel (the highest lawyer within that FBI field office), and finally, the Special Agent in Charge of the field office, before making its way to FBI Headquarters to get approval by (at least) the Unit-level Supervisor there.’ At FBI headquarters, an ‘action memorandum’ is prepared with additional facts culled by analytical personnel assigned to espionage allegations involving certain foreign powers. Next, it goes to the Justice Department ‘where attorneys from the National Security Division comb through the application to verify all the assertions made in it,’ wrote Rangappa. ‘DOJ verifies the accuracy of every fact stated in the application. If anything looks unsubstantiated, the application is sent back to the FBI to provide additional evidentiary support – this game of bureaucratic chutes and ladders continues until DOJ is satisfied that the facts in the FISA application can both be corroborated and meet the legal standards for the court. After getting sign-off from a senior DOJ official (finally!).’
Did the DOJ and FBI follow these procedures in the case of the four Page FISA applications?
Each application was labeled “VERIFIED APPLICATION” and states that “[t]he 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).” Yet the FISA applications relied on the unverified Steele dossier and included references to Yahoo! News and other reporting the FBI did not vet.
For instance, to build the case that Page was a Russian agent, the FISA applications referenced “a July 2016 article in an identified news organization” that claimed Trump’s campaign worked behind the scenes to ensure the Republican National Committee’s platform did not pledge weapons to Ukraine. That article, of course, was the debunked Washington Post piece that falsely claimed the Trump campaign had gutted the RNC’s anti-Russian stance on Ukraine.
The FISA applications then relied on an August 2016 article which reported that Trump might recognize Crimea as Russian territory, suggesting the Republican candidate’s more conciliatory approach to Russia followed Trump’s “recent association with several people sympathetic to Russian influence in Ukraine, including foreign policy advisor Carter Page.”
The “facts” reported in these newspaper articles were never vetted by the FBI, so why did the DOJ include those details in the FISA applications? Why was such information included in the FISA applications? Who made the decision to include it? And what other evidence was not vetted and verified? Horowitz’s report should address these questions.
4. Why Did Page’s Application Not Follow the Usual Path?
The IG’s report should also discuss the approval process and any issues with it, and specifically why the “linear path” FISA applications typically take did not occur in the Page case, as former FBI Deputy General Counsel Trisha Anderson made clear during her testimony in August 2018 to the House Judiciary and Oversight committees.
During her testimony, “Anderson explained that she was normally responsible for signing off on Foreign Intelligence Surveillance Act applications before they reached the desk of her superiors for approval. Anderson said the ‘linear path’ those applications typically take was upended in October 2016, with FBI Deputy Director Andrew McCabe and Deputy Attorney General Sally Yates signing off on the application before she did. Because of that unusual high-level involvement, she didn’t see the need to ‘second guess’ the FISA application.”
So, while as the senior executive service representative for the FBI’s National Security Law Branch, Anderson would normally be the “approver” for the “initiation” of the Page FISA, including determining whether there is legal sufficiency, in this case, Anderson testified “[t]he General Counsel [Jim Baker] … personally reviewed and made edits to the FISA,” and “Deputy Director [McCabe] was involved in reviewing the FISA line by line. The Deputy Attorney General [Yates] over on the DOJ side of the street was similarly involved, as I understood, reviewing the FISA application line by line.”
Thus her approval, Anderson stressed, “was really purely administrative in nature. In other words, the substantive issues — the FISA had already substantively been approved by people much higher than me in the chain of command.” Anderson also indicated that “due to time constraints,” even under normal circumstances, she “would not read the full FISA application before signing off on it ‘unless there were an issue that was identified by the cover note.” Similarly, it was doubtful Comey would read a full FISA application, Anderson indicated, and instead, “if he signs the FISA, you know, relies on others.”
This testimony raised several questions for Horowitz: Was the DOJ and FBI’s normal FISA process consistent with the Woods procedures? What about the handling of the Page applications? Did that process violate the Woods procedures? And did any of the individuals who drafted, reviewed, and approved the FISA applications verify the information included therein?
5. Was Any Application Info False or Misleading?
Former Deputy Attorney General Rod Rosenstein’s congressional testimony raised similar concerns. Last year, Rosenstein told the House Judiciary Committee that “the FBI provides the DOJ the completed FISA application and a team of DOJ attorneys then brief Rosenstein on the details.” Does this process comport with the Woods procedures? Even if it does, that means “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.”
Here, then, we have a third area on which Horowitz’s report should focus: The content of the FISA applications and whether any information included was false or misleading and whether any information omitted should have been included. Relatedly, did the DOJ attorneys who briefed Rosenstein (and Yates) provide a fair and accurate briefing and flag issues which should have been highlighted?
This area of the IG’s report should be massive given the many concerns already identified in congressional testimony and exposed in publicly released documents.
This area of the IG’s report should be massive given the many concerns already identified in congressional testimony and exposed in publicly released documents. For instance, when Rosenstein testified before the House Judiciary Committee, after explaining the process that led to him signing the final Page FISA application, Rosenstein noted that he had “reviewed that one in some detail, and I can tell you the information about that doesn’t match with my understanding of the one that I signed…”
Rosenstein did not elaborate, stating instead that he thought “it’s appropriate to let that Inspector General complete that investigation,” but Rosenstein’s testimony suggests that whomever briefed him did not provide an accurate summary of the FISA application. So, who briefed Rosenstein, and what was he told? And how did that compare to the FISA application Rosenstein signed?
And what about the FISA applications? Who drafted those? When Comey’s replacement, Christopher Wray, testified alongside Rosenstein, he told the House Judiciary Committee that he did not “know who was involved in drafting what FISA application,” but we know that Peter Strzok and Lisa Page were involved in the Russia investigation and had to have had some role.
But what role, and who else was involved? Horowitz should discuss those questions and the impact of Strzok and Lisa Page’s anti-Trump bias. Also, did other individuals likewise have an anti-Trump bias? And did that bias impact the drafting process and what was—and was not—included in the FISA applications?
6. Hiding the Steele Dossier Commissioners From the Court
A thorough investigation by Horowitz would then require him to analyze the content of the FISA applications and assess whether the information included was false or misleading, starting with what appears to be a purposeful attempt to hide from the FISA court the fact that the Hillary Clinton campaign and Democratic National Committee funded the Steele dossier. Why hide that fact? Why not simply write, “The U.S.-based law firm that hired the identified U.S. person to conduct research on Candidate #1 did so on behalf of Candidate #1’s opponent, Candidate #2”? Who decided to obfuscate, and why?
7. Why the FBI Lied about Steele’s Press Contacts
Of course, the “identified U.S. person” referred to in the FISA applications is Steele, and much of the IG’s report will need to discuss the FBI’s use of the former MI6 operative and the glaring problems seen in the FISA applications related to Steele.
Grassley highlighted one such problem when he issued a criminal referral for Steele. In the referral, Grassley stated that “[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.”
Since Grassley issued his criminal referral, further evidence has come to light suggesting that the FBI falsely informed the FISA court that Steele did not have contact with the press prior to October 2016. Specifically, in notes from a meeting between Deputy Assistant Secretary of State Kathleen Kavalec and Steele on October 11, 2016—two weeks before the DOJ and FBI relied on the Steele dossier to obtain a FISA surveillance order targeting Carter Page—Kavalec wrote that in “June—reporting started” and the “NYT and WP have,” indicating both The New York Times and The Washington Post had Steele’s research. Kavalec also added that Steele said he was “managing” four priorities—“Client needs, FBI, WashPo/NYT, source protection.”
Kavalec’s notes of her conversation with Steele contradict the FISA application’s assertion that Steele did not have unauthorized contacts with the press prior to October 2016. The IG’s report should address this discrepancy and why the FISA application contained this apparently false information.
8. Other Information Questioning Steele’s Reliability
The FISA applications also maintained that the FBI had determined Steele to be “reliable” and was “unaware of any derogatory information pertaining” to their source, but Kavalec’s memorandum showed that Steele was not reliable. In her meeting notes, Kavalec wrote that Steele claimed “the Russians had constructed a ‘technical/human operation run out of Moscow targeting the election’ that recruited emigres in the United States to ‘do hacking and recruiting,’” and that “payments to those recruited are made out of the Russian Consulate in Miami.” But Kavalec’s notes corrected Steele’s “intel,” by stressing: “It is important to note that there is no Russian consulate in Miami.”
What other evidence did the FBI have calling into question Steele’s reliability? Had the British government warned the FBI? Had agents begun to vet the dossier and discovered flaws in his supposed intel?
And what about Steele’s bias? In her notes, Kavalec documented Steele’s statement that his client was “keen” that his anti-Trump research be made public before Election Day. And Steele had previously told DOJ lawyer Bruce Ohr that he was desperate that Trump not win the 2016 election. But the FISA applications were silent on Steele’s anti-Trump bias. The IG’s report should address these questions and omissions.
9. The Bruce Ohr Problems
Now to Bruce Ohr. Ohr was a longtime acquaintance of Steele’s, and in 2016 an associate deputy attorney general. Ohr and his wife, Nellie Ohr, had breakfast with Steele at a D.C. hotel the day before the FBI launched Crossfire Hurricane, its investigation into the Trump campaign.
Bruce Ohr would later take on a much more significant role when, after the FBI terminated Steele as a source on November 1, 2016, Ohr became a conduit to keep feeding Steele’s intel to the FBI, which Ohr did on at least 12 occasions, continuing until November 2017. Yet in the FISA applications, the DOJ represented to the FISA court that Steele had been terminated as an informant.
This arrangement raises a lot of question for Horowitz. Did the FBI violate its policies and procedures by using an intermediary to receive “intel” from a terminated source? Who arranged for Ohr to act as a go-between, and why? Who knew of the arrangement? Rosenstein says he did not, but did other higher-ups?
Did the FBI provide Rosenstein information laundered through Ohr without Rosenstein’s knowledge? And did any of the “intel” originating from Steele find its way into the FISA applications that stated Steele had been terminated as a source? Specifically, did Steele provide Ohr a copy of his Dec. 13, 2016 memo that comprised the final two pages of what is commonly called the Steele dossier, and was that information incorporated into the FISA application?
Ohr also met with Steele’s business partner, Glenn Simpson, in December 2016. Did Ohr pass any dirt gleaned from Simpson onto the FBI? Did the later FISA applications include any of that information? The IG’s report should addresses these questions and concerns.
10. Then There’s Nellie Ohr
IG Horowitz’s report should also explain whether the FBI and DOJ acted properly with regard to Nellie Ohr. Bruce’s wife, Nellie worked for Fusion GPS, the firm that had hired Steele to cull opposition research on Trump. During his congressional testimony, Bruce revealed that after the FBI launched an investigation into the Trump campaign, Nellie gave him a flash drive containing the Trump-Russia research she had compiled for Fusion GPS. Bruce then passed Nellie’s opposition-funded research to the FBI.
Nellie’s research, which she detailed in congressional testimony, mirrors some of the information contained in the FISA applications, raising the question of whether the FBI used Nellie’s opposition research to obtain a court order to surveil Page. If so, was this disclosed in the FISA applications?
11. What the FBI Withheld about Page’s Help Prosecuting Spies
Then there is the FISA applications’ attempt to portray Page as culpable because he had been targeted by a Russian intelligence officer for recruitment. It appears that the DOJ withheld some material facts from the FISA court concerning those past efforts, however; namely the Russian intelligence officer who had attempted to recruit Page was later convicted of espionage-related charges in federal court and Page had assisted the government in its prosecution of the Russian spy.
The IG report should note whether the DOJ provided the FISA court information concerning Page’s past cooperative efforts related to the Russian intelligence officers, and if not, why not. And who made the decision not to explain Page’s prior cooperation to the FISA court?
12. The Real Origin of Crossfire Hurricane
It also appears likely that the DOJ misled the FISA court on the timing and reason the FBI launched operation Crossfire Hurricane, another concern the IG should address. While the FBI officially launched Crossfire Hurricane on July 31, 2016, we now know that the FBI began investigating the Trump campaign before then.
The FISA application also appears to falsely portray Trump campaign advisor George Papadopoulos as connected to Russia’s hacking of the Democratic National Committee emails and WikiLeaks’ July 2016 release of those emails. But Papadopoulos had no connection to Russia’s hacking.
“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. Did the DOJ inform the FISA court of these facts? Horowitz’s report should address these questions.
13. What Role Did Joseph Mifsud Play?
Also apparently absent from the FISA applications are details concerning Joseph Mifsud, who becomes relevant because, in an attempt to bolster the Russia collusion narrative, the FISA applications reference the FBI’s launch of a counterintelligence investigation on July 31, 2016, based on Mifsud’s supposed statement to Papadopoulos that the Russians had dirt on Hillary.
Did the FISA applications portray Mifsud as a Russian agent? Was that an accurate portrayal? And what did Mifsud tell the FBI in early-to-mid February 2017, when agents questioned him in Washington DC? Did the FISA application inform the court of Mifsud’s statements? If not, why not? Horowitz should have an answer.
These are merely the questions begging for answers from the already publicly available information, but Horowitz had access to substantially more details and his investigation should have uncovered even more facts. Horowitz’s report should summarize the results of his investigation to make clear that he followed the leads where they led.
One investigative trail of particular importance is the communications accessed and intercepted pursuant to the FISA applications. Did the FBI access communications between Page and Trump campaign members? If so, what communications, involving what players?
If Horowitz conducted a fair and thorough investigation, he should have the answers to these questions—and so should we soon.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.
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