In a surprise move, on Saturday evening the Department of Justice released copies of the Foreign Intelligence Surveillance Act (FISA) applications used to obtain a secret court order to conduct electronic surveillance on former Trump campaign advisor Carter Page. The 412 pages of documents turned over in response to a Freedom of Information Act lawsuit brought by several media outlets included the initial October 2016 application and the three applications for renewal of the surveillance order.
While the newly released documents remain heavily redacted, the details revealed confirm the charges of abuse laid out early this year by House Permanent Select Committee on Intelligence (HPSCI) Chair Devin Nunes (R-CA). The documents also provide additional evidence that the Obama administration’s Department of Justice and career DOJ, Federal Bureau of Investigation, and State Department employees misused the FISA court system to spy on the Trump campaign. Here are ten key take-aways.
1. The State Department Had Its Fingers In this Mess
Last month, during a Senate Select Committee on Intelligence hearing, it was revealed for the first time that “[f]ormer British spy Christopher Steele visited the State Department in October 2016 and briefed officials there about his work on the infamous anti-Trump dossier.” During questioning of President Barack Obama’s assistant secretary of state for European and Eurasian affairs, Victoria Nuland, committee Chairman Richard Burr disclosed that “[b]ased upon our review of the visitor logs at the State Department, Mr. Steele visited the State Department, briefing officials on the dossier in October 2016.”
Nuland, who in June 2016 had authorized the FBI to meet with Steele in London, denied attending the October 2016 meeting with Steele. She also “said in previous interviews that she and other State Department officials referred the dossier to the FBI,” but as The Daily Caller’s Chuck Ross noted, “Burr’s revelations suggest the agency maintained interest in Steele and his report much longer than previously known.”
Saturday’s release of the FISA applications now exposes a new troubling detail: The DOJ sought the FISA surveillance order based on the information provided “by the U.S. Department of State” “in or about October 2016.” When considered in light of last month’s revelation that Steele had met with State Department officials in October, it now appears that the Obama administration’s State Department bore equal responsibility for presenting the FISA court unverified hearsay to justify spying on the Trump campaign.
2. The Applications Relied Heavily on the Steele Dossier
In charging the DOJ and FBI with abusing the FISA system, Republicans have long maintained that the FISA applications relied heavily on the Steele dossier’s unverified information—information the former British spook compiled for the Hillary Clinton presidential campaign and the Democratic National Committee.
Democrats challenge that assertion, stressing the bulk of the FISA applications and other information included. Although the redactions make it impossible to fully refute these claims, the FISA applications demonstrate the DOJ’s heavy reliance on the Steele dossier.
First, while the initial FISA application totals some 50 pages, large swaths of the double-spaced length consist of boilerplate jargon detailing the requested scope of the surveillance, claiming “compliance” with the statutory requirements for certification by FBI officials, and efforts to minimization the unintentional interception of third-party information.
Then there are the long narratives of background information concerning Russia’s attempts to influence the 2016 presidential election. Only a relatively small portion of the total applications go to the question of whether probable cause exists to surveil Page. Those sections rely on the information the Steele dossier provided.
3. The FBI Paid Christopher Steele
It has long been known that the Clinton campaign and DNC paid Steele to compile the dossier. Media outlets have also reported, though, that the FBI did not compensate Steele. For instance, the Washington Post ran a story asserting, based on “several people familiar with the arrangement,” that Steele “had reached an agreement with the FBI a few weeks before the election for the bureau to pay him,” but “[u]ltimately, the FBI did not pay Steele.” In another article, the Washington Post again claimed Steele was “not being paid as an informant,” but added that he may have been reimbursed for some travel expenses.
Those reports now appear questionable: The FISA applications state that Steele (identified as Source #1), “has been compensated” “by the FBI.” The redactions, though, leave open the question of how much and whether any of the payments compensated Steele for investigating the Trump campaign.
4. Warrants Relied On Hearsay from Tertiary Sources
The newly released FISA applications also confirm a fourth significant fact: To obtain the surveillance warrant, the DOJ and FBI relied on unverified hearsay from sub-sources (i.e., Steele’s sources) of unknown reliability.
While the government may rely on unverified information provided by an informant who has a history of providing reliable information, to establish probable cause with evidence coming from a source of unknown reliability, the government must corroborate that information. The FISA applications make no mention of corroboration of the sub-sources’ claims concerning Page’s purported conversations with two Russian agents.
Further, the FISA applications reveal that the DOJ only established Steele’s reliability, not that of “sub-sources.” But as former federal prosecutor Andrew McCarthy first highlighted in February 2018:
The only reliability that counts is the reliability of the factual informants, not of the investigator who purports to channel the informants. The judge wants to know why the court should believe the specific factual claims: Was the informant truly in a position to witness what is alleged, and if so, does the informant have a track record of providing verified information? The track record of the investigator who locates the sources is beside the point. A judge would need to know whether Steele’s sources were reliable, not whether Steele himself was reliable.
While we do not know what lay behind the redacted portions of the applications, it seems clear from the placement, context, size of the blackouts that the FBI did not include information in the application either establishing the sub-sources’ reliability or detailing any efforts to corroborate Page’s claimed collusion with the Russian agents.
5. The DOJ Used News Outlets to Establish Probable Cause
The FISA applications further exposed the extent to which the DOJ relied on unverified media reports to support their request for court-ordered electronic surveillance of Page. Contrary to Democrat claims that the applications’ reliance on a Yahoo News article was passing, the FISA documents detailed the Yahoo News article’s assertion that a “well-placed Western intelligence source,” told the news organization that Page met with the Russian agents in July.
Just as statements from unverified “sub-sources” could not establish probable cause, unverified newspaper articles could not either. The DOJ, however, did not limit itself to repeating the Yahoo News article’s claims, which the public later learned had also originated from Steele. The FISA application also cited two other media reports.
One was apparently Josh Rogin’s Washington Post opinion article, which reported claims that Trump campaign members “worked behind the scenes to make sure [the GOP]’s platform would not call for giving weapons to Ukraine to fight Russian and rebel forces.” The DOJ also relied on an article from August 2016—likely the Michael Crowley Politico piece—that “opined that while the reason for [Trump’s] shift [in Russian policy] was not clear, [Trump]’s more conciliatory words, which contradict [the GOP]’s official platform, follow [Trump]’s recent association with several people sympathetic to Russian influence in Ukraine, including foreign policy advisor Carter Page.”
There are two fundamental problems with this portion of the FISA application. First, as the Washington Examiner’s Byron York explained, the GOP platform narrative the Washington Post and Politico pushed was extremely misleading. Second, when I asked Page whether he participated in the GOP Russia platform debate, the former Trump advisor responded with an emphatic “NEVER,” and shared this excerpt from his defamation lawsuit against a media conglomerate:
Plaintiff, Dr. Page arrived on Delta flight 5353 at Cleveland Hopkins International Airport at 1:36 p.m. on July 18, 2016, the same day that the Washington Post published the following report: ‘Trump campaign guts GOP’s anti-Russia stance on Ukraine’. (Delta Air Lines flight confirmation attached as Exhibit 19(a)) Dr. Page played no role whatsoever in the drafting of the 2016 Republican party platform.
The FISA applications create the false impression that Page was involved with the GOP platform debate. The DOJ then used that misleading inference to support its claim that Page was a foreign agent.
6. The DOJ Effectively Criminalized GOP Foreign Policy
The above discussion also reveals another troubling aspect of the Obama administration’s investigation into the Trump campaign: The DOJ used leaked information from internal GOP’s platform debates as “evidence” of collusion.
Also disconcerting is the DOJ’s reliance on Trump’s “conciliatory words” toward Russia in conflict with GOP insiders to justify spying on the Trump campaign—in effect criminalizing foreign policy differences concerning Ukraine.
7. Why Were the Dates Redacted?
There is yet another oddity in Saturday’s release, but of unknown relevance: The dates in the applications and warrants were redacted. Why? One possibility: The dates of the verification of the applications coincide with (or near) the dates the FISA court issued the surveillance orders, demonstrating that the judges served as a mere rubber stamp on the requests and did not do a thorough review of the information.
8. The FISA Applications Didn’t Establish Probable Cause
The next three key-take away from the FISA applications prove more global in scope.
First, the unredacted portions of the FISA applications present a detailed theory of collusion but lack the supporting evidence necessary to establish probable cause. The FBI—in its own words— “believes that the Russian Government’s [interference] efforts are being coordinated with Page and perhaps other individuals associated with Trump.”
The DOJ storyline then runs that Russian agents connected to Vladimir Putin promised Page an ownership interest in a Russian company and dirt on Hillary Clinton in exchange for Trump resetting relations with Russia following his election. Their “evidence” of Page’s collusion was unverified hearsay from sub-sources and the GOP’s platform fight—the latter of which Page had nothing to do with.
9. The FISA Court Clearly Needs Revamping
I’ve spent nearly 25 years reviewing probable cause affidavits and court records, so I can say this “evidence” is laughable. Yet four separate FISA court judges approved the wiretap orders. There seems to be only one logical conclusion: The FISA court system has become a rubber stamp to whatever applications the DOJ submits.
As soon as Republicans clean up Spygate, they should turn their eyes to the FISA court. But that might take some time, given that the expansive Deep State stench points to an Augean stable to clean.
10. Heavy Redactions Will Give Dems Cover
While the just-released FISA applications provide further evidence of abuse by the Obama administration and career DOJ, FBI, and State Department employees, Democrats are hiding behind the extensive redactions to claim the government properly sought the Page surveillance order. However, the previously released House intelligence committee chairman Devin Nunes’ memo, Rep. Adam Schiff’s Democratic response, and Sen. Chuck Grassley’s (IA-R) criminal referral of Steele provide great insight into the content of the redacted information.
As I detailed last week, it is extremely likely that the yet-to-be disclosed information includes several additional false DOJ narratives. Nunes, who has access to the unredacted FISA documents, should now revisit the applications and release a supplemental memo addressing these concerns.