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