Last week, the leaks began in anticipation of the expected early-December release of the inspector general report on the propriety of the Carter Page Foreign Intelligence Surveillance Act (FISA) surveillance order. CNN broke news on Thursday that “a former FBI lawyer is under criminal investigation after allegedly altering a document” related to the 2016 FISA applications.
The press and public are understandably consumed with this news—which is huge if true—but while speculating on that forthcoming report, the media has ignored several significant revelations already detailed in the report Inspector General Michael Horowitz released last week.
That report, issued on Tuesday, summarized the results of the inspector general’s audit of the Federal Bureau of Investigation’s Confidential Human Source (CHS) validation processes. While the media reported the main takeaways summarized in the IG’s press release—that the FBI did not comply with attorney general guidelines and that the current process for validating these sources lacked adequate controls—there were four potential blockbusters buried in the 63-page report.
Burying Evidence to Keep It from the Courts
The most startling revelation in the audit concerned how the FBI handles problems with a CHS’s credibility or accuracy. The report first noted that “validation documents relevant to the credibility of a CHS may be discoverable in judicial proceedings,” explaining that:
Discovery in criminal cases is controlled by case law and the Federal Rules of Criminal Procedure. For example, information in the validation report which refers to the CHS’s motivation or vulnerabilities may be discoverable pursuant to Brady v. Maryland, 373 U.S. 83 (1963) or Giglio v. United States, 405 U.S. 150 (1972). ‘Brady’ refers to information known to the government that is material to a criminal case and could tend to exculpate the defendant. ‘Giglio’ refers to information that could be used to impeach a witness for the prosecution.
Then the IG detailed that its investigation revealed several troubling steps the FBI took to avoid the mandates of Brady and Giglio.
We were told by multiple Intelligence Analysts that they received guidance to only state the facts and not to conduct analysis, report conclusions, and make recommendations in the Significant Source Review Panel validation reports. For example, one Intelligence Analyst told us that he was permitted to recommend a CHS receive a polygraph or operational test to the handling agent by phone but not permitted to document the recommendation in the CHS’s validation report. Additionally, multiple FBI officials told us that they believe that field offices do not want negative information documented in a CHS file due to criminal discovery concerns and concerns about the CHS’s ability to testify. For example, one FBI official told us that some U.S. Attorney’s offices will not use a CHS at trial if there is negative documentation in the CHS’s file.
These admissions should outrage Americans: The FBI is intentionally failing to document confidential sources’ credibility and reliability problems so defense attorneys do not learn of them! Or, as the IG report concluded, “by withholding potentially critical information from validation reports, the FBI runs the risks that (1) prosecutors may not have complete and reliable information when a CHS serves as a witness and, thus, may have difficulties complying with their discovery obligations.”
Leslie McAdoo Gordon, a D.C.-based criminal defense attorney and principal at McAdoo Gordon and Associates, branded the FBI’s failure to document issues in a CHS’s validation report a form of evidence tampering. “This ‘what they don’t know won’t hurt them’ attitude is cultural,” McAdoo Gordon told The Federalist. “Like all cultural problems, this is caused by a failure of leadership.”
McAdoo Gordon added that “the integrity of our criminal justice system is seriously damaged when investigations are grounded on information that is biased or dishonest and those problems, moreover, are hidden from the defendant’s advocate and the court.” Unfortunately, there is nothing a defense counsel can do, McAdoo Gordon noted, because they don’t know it’s happening.
Affects Future Knowledge of New FBI Agents
Moreover, as the report makes clear, the failure to document a CHS’s credibility or reliability problems also has future ramifications “because handling agents change and new handling agents can only know the risks if they are documented.” This lack of documentation may also deprive future handling agents “of relevant information about the CHS that could not only jeopardize an investigation but also put the agent’s safety and potentially sensitive information at risk,” as the IG report explained.
While these aspects of the IG’s audit raise serious concerns in all criminal cases involving CHSs, these findings directly bear on the FBI’s use of Christopher Steele as a CHS in the Page FISA applications. In the Page FISA applications, after noting that it had suspended Source #1, now known to be Steele, for making “unauthorized disclosure of information to the press,” the government stressed that it still assessed Steele “to be reliable as previous reporting from Source #1 has been corroborated and used in criminal proceedings.”
But what about previous reporting by Steele that was contradicted or refuted? Or what about previous credibility or reliability issues? Did the FBI insist such negative information be excluded from Steele’s “validation reports” to keep his file clean? We will likely never know.
What About Steele’s Sub-Sources?
Relatedly, the IG’s audit of confidential human sources reveals that the FBI did not maintain validation reports for sub-sources, defined in the report as individuals “who directly acquire information that is then provided to the FBI by an FBI CHS.” That omission raised myriad additional problems and concerns.
Specifically, according to the IG report, “Delta,” which “is the FBI’s official electronic record-keeping system for CHS management,” “does not identify and track extraterritorial sub-sources.” As such, the CHS system “will lack complete and accurate information on its CHS coverage stemming from extraterritorial sub-sources.”
That the FBI’s electronic record-keeping system for CHS management does not identify and track extraterritorial sub-sources adds even more concerns to the already overabundant problems plaguing the FBI’s Page FISA applications. Recall that the FISA applications “relied heavily on Mr. Steele’s dossier claims,” and that “the bulk of the application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier.”
And remember that the dossier consisted, not of information acquired directly by Steele, but of information Steele claimed to have heard from a litany of unnamed sources. In other words the dossier was a summary of sub-source assertions. Yet nowhere in the dossier was there information establishing the reliability of the sub-sources—and courts hold that conclusory statements that informants are “believed to be reliable sources,” “standing alone without any supporting factual information, merit absolutely no weight . . . .”
National Review’s Andrew McCarthy was the first to identify this fatal flaw in the FISA applications, noting:
In applying for a warrant, the government must establish the reliability of the informants who witnessed the alleged facts claimed to support a probable-cause finding. Steele was not one of those witnesses. He is not the source of the facts. He is the purveyor of the sources — anonymous Russians, much of whose alleged information is based on hearsay, sometimes multiple steps removed from direct knowledge.
While the Steele dossier lacked any information bolstering the credibility of his sub-sources and sub-sub-sources, and thus any assessment by Steele that the Russian informants were credible would be entitled to no weight by the FISA court, there was always the possibility that Steele told the FBI the identity of his sub-sources and the FISA applications established that the sub-sources were reliable.
A Jane Mayer puff piece on Steele which The New Yorker ran more than a year ago painted a similar narrative. Citing “three former government officials familiar with” disgraced former FBI Director James Comey’s briefing of then-President Barack Obama and then-Vice President Joe Biden, The New Yorker reported that Comey told the previous administration “the F.B.I. had not corroborated the details in the dossier.”
But, according to The New Yorker, Comey “also said that the F.B.I. had ‘confidence’ in the dossier’s author—a careful but definite endorsement—because it had worked not only with him but with many of his sources and sub-sources, whose identities the Bureau knew.” “He’s proven credible in the past, and so has his network,” The New Yorker reported Comey as saying.
The veracity of The New Yorker’s claims is uncertain, but following the IG’s report, we do know that multiple FBI offices keep “negative information” out of a CHS’s file, and that the FBI does not even bother to “identify and track extraterritorial sub-sources.” How, then, could the FBI possibly reliably attest to the veracity of Steele’s extraterritorial sub-sources?
Exempting Sources Like Steele from Routine Validation
A third important point gleaned from last week’s IG report on confidential human sources concerns the attorney general guidelines’ requirement that all long-term sources receive an enhanced validation every five years, except “those CHSs providing information for use in national security investigations or foreign intelligence collections.”
So, under the guidelines, while the FBI must seek and obtain the approval of the Human Source Review Committee (HSRC) every five years for most confidential sources, individuals, such as Steele, who feed the FBI unverified information from supposed foreign-intelligence collections are exempt. Not that a HSRC review would likely matter, in any event, since the HSRC must rely on the Annual Validation Reports and other relevant FBI documentation which, as the IG report revealed, intentionally omits negative information about CHSs.
When Reporters and FBI Sources Swap Info
A final tidbit from last week’s IG report raises an entirely distinct line of questions, but also relevant to the Page FISA applications and the broader question of the handling of the investigation into the Trump campaign. The IG notes in its audit that the AG guidelines “define special categories of CHSs,” including “media CHSs.” While the IG report does not discuss any issues specifically related to a media CHS, the reference to media CHSs spurs the question of whether the FBI used any media CHSs in its targeting of the Trump campaign and administration. If so, was there a quid pro quo: supposed intel from the CHS in exchange for leaks?
Here, a July 2018, story from Politico proves especially intriguing. In “Details Emerge on Justice Department Meeting with Reporters on Manafort,” Josh Gerstein highlighted two FBI memos that indicated the Associated Press obtained some information about former Trump campaign chair Paul Manafort from the FBI. That meeting was “arranged” by Andrew Weissmann, then the chief of the DOJ’s fraud section, later Special Counsel Robert Mueller’s pit bull, and now an MSNBC legal analyst.
However, according to Gerstein, “the memos indicate that the bulk of the information flow at the meeting went the other way, with the AP journalists providing the FBI with a bevy of facts the news organization uncovered during its inquiries into Manafort’s work and finances.” Gerstein also reported that “one of memos also says the purpose of the meeting was for the FBI to ‘obtain documents from the AP reporters,’ although it’s unclear any documents were shown or changed hands.” And “the memos also show that one of the AP journalists gave the FBI an unusual detail about a storage unit in Alexandria, Virginia that Manafort used to keep records of his worldwide business dealings.
One journalism expert quoted by Gerstein, University of Maryland journalism professor Mark Feldstein, was “taken aback by the AP sharing the code with the FBI,” noting “neither side is supposed to share confidential information with the other, but in fact each often does — perhaps to seek corroboration, perhaps to get other confidential information back in exchange or perhaps to spur on the other side’s investigation.” One must wonder whether in the age of Trump this taboo no longer exists.
If so, that is not a legal concern: Journalists are free to serve as the FBI’s CHSs as much as they like, although one may then question how free the press feels to hold those same officials up to scrutiny. But a legal problem does arise if the media and the FBI maintain a closed circuit of intel, with the Department of Justice using press reports to “verify” FBI sources. We saw this phenomenon play out in the Page FISA applications when the DOJ relied on Steele’s supposed intel and then cited to media reports that Steele himself had sourced as corroboration.
Whether the IG’s report on the Page FISA applications delves into these issues is yet to be seen, but rather than speculate on what is to come, Americans should be outraged by what has already been reported.