Ball of Collusion
Page 34
Now, let’s take the claims separately. Page and the campaign parted ways when the September 23 Isikoff article and resulting Clinton campaign statement stoked negative publicity. Yet, as we’ve seen, the Trump campaign was not a regimented enterprise. Page continued to have contacts with Trump officials—not only during the campaign but, post-election, during the transition and into the new administration.14
More significantly, investigators were at least as interested in Page’s prior communications as they were in his prospective ones. Nearly always ignored in all defenses of the FISA warrants is the fact that such surveillance authorizations enable the FBI to intercept not only fowrard-going communications but also any stored communications (such as emails and text messages) the target might possess.15 Indeed, Justice Department Inspector General Michael Horowitz, who is investigating potential abuse in the acquisition and use of FISA surveillance authority, has reportedly asked those involved in the investigation why, if they were not scrutinizing the campaign, they did not use a filter team to screen out messages related to campaign activity.16 Of course, there is no good answer. Remember, Steele had claimed that Page met in July with Putin regime operatives Sechin and Divyekin. Page is adamant that he did not, and the FBI had nothing to corroborate Steele’s allegation. Clearly, investigators were seeking the motherlode of stored communications and documents tracing back to Page’s Moscow trip. Putting aside that warrant allegations are supposed to be verified before presentation to the court, not by execution of the warrant; plainly, the FBI hoped to corroborate Steele’s allegations by seizing Page’s communications from back when he was undeniably a Trump campaign adviser.
Even more to the point, Page was merely a vehicle for surveillance; the objective was to probe Trump ties to Russia. Trump was the only reason the Obama administration cared about such relative nonentities as Page and Papadopoulos (as well as Manafort, who had also been severed from the campaign by the time of the first Page FISA warrant). Steele’s allegation was that Trump and Putin conceived the conspiracy; the others were just functionaries. That was the theory of the FISA warrant application. Again, the investigation was about Donald Trump. If it hadn’t been, the FBI would have given his campaign a defensive briefing, counseling it to be wary of agents of Russian influence who might be trying to penetrate and influence the candidate. Instead, the Obama administration launched a full-fledged FISA investigation because Trump himself was portrayed as the agent of Russian influence.
‘VERIFIED’?
In July of 2018, after the Justice Department and the FBI stonewalled congressional committees for over a year, President Trump finally pressured them into the public release of the four Carter Page FISA warrants.17 While relevant dates have (weirdly) been redacted, the first is known to have been issued by the FISC on October 21, 2016,18 with reauthorizations following in January (while Obama was still in office), April and June of 2017—the final one lapsing in September. FISA information is highly classified; the president’s disclosure of the warrant packages, even in heavily redacted form, was unprecedented.
Each FISA application is labeled “VERIFIED APPLICATION” (bold caps in original). Each one makes this representation, breathtaking under the circumstances:
The 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).
In reality, the applications were never verified for accuracy—not in any commonsense understanding of that phrase.
The Bureau’s “April 5, 2001 procedures” are usually referred to as the “Woods procedures,” named for Michael Woods, the agent who developed them. They were firmly implemented during the tenure of FBI Director Robert Mueller, designed to address the quality-control problem of erroneous allegations in FISA submissions due to the wide variety of source information. As Mueller explained to the Senate Judiciary Committee in 2003, “the goal of the procedures is to ensure accuracy with regard to … the facts supporting probable cause[,]” among other things. Because FISA proceedings are not adversarial, an American gets only as much due process as the exchange of information between the government and the FISC entails. If followed, the procedures force a searching analysis of each factual assertion. There is an elaborate chain of required approvals, and the Bureau even formed a FISA unit to track the verification process, all to ensure that only reliable information is provided to the court. The FBI’s Domestic Investigations and Operations Guide (DIOG) mandates that the Bureau “ensure that information appearing in a FISA application that is presented to the [FISC] has been thoroughly vetted and confirmed.”19
Patently, the procedures aim to instill a culture of rectitude. The standard libertarian critique of FISA is that the executive branch cannot be trusted to police itself without an adversarial process. The court, try as it might, is not equipped or incentivized to challenge the government the way a defense lawyer would; the judges do not have the investigative facilities to determine whether they are being misled. The procedures address this deficiency (unavoidable in classified national security matters), but they work only if they are internalized, rather than gamed—if compliance means not only verifying information but being forthright with the tribunal in disclosing facts that bear on the credibility of information providers.
Plainly, in the Trump–Russia counterintelligence investigation, the process broke down.
It is challenging to describe the FISA warrants and the issues that surround them. Though upwards of four hundred pages were disseminated publicly, the documents have been very heavily redacted. The president has often indicated that he would direct additional disclosure, but that has not happened as this book goes to press.20 Inevitably, the excision of most of the documentation has resulted in claims by Obama administration apologists that the warrant applications were not overly reliant on the Steele dossier: all the really damning stuff, we’re to believe, must be in the redactions, we just can’t see it because it’s too top-secret. Of course, we know this is not so because congressional investigators, who have seen the unredacted documents, report that the Steele dossier was substantially relied upon as the predicate.21
More to the point, the significance of the redactions is patently overblown. The vast majority of what is blacked out has nothing to do with the probable-cause showing against Carter Page. In fact, while the probable-cause showing is the most significant part of any FISA application package, it is a comparatively small part. The term “package” is appropriate because a government submission to the FISC includes much more than the application signed by the investigative agent; there is also a lengthy certification by a top-ranking national-security official (here, the FBI’s director or deputy director), a short approval declaration by the Justice Department (here, by the deputy attorney general), and the proposed warrant itself to be signed by the judge.
In congressional testimony, former FBI director Comey claimed that FISA submissions are often thicker than his wrists.22 Besides being a bit of an exaggeration, this description failed to convey that most of the documentation is unrelated to probable cause. Lots of paperwork does not equal mountainous evidence.23 For example, the first Page submission was just eighty-three pages, which my unscientific supposition says is not as thick as the average toddler’s wrist. Of these, the package’s last twenty-nine pages are not part of the warrant application at all. They consist of certifications and approvals redacted because they set forth, among other things, secret authorities the government is granted in order to carry out the surveillance, the manner in which the surveillance is to be conducted, the communications facilities the FBI is permitted to monitor, the methods by which the Bureau is permitted to gain access to those facilities, the minimization instructions that must be followed to avoid unauthorized monitoring, and so on—all heavily redacted for obvious reasons.
While a great deal of the remaining fifty-four pages is blacked out, that hardly means we are clueless about what
most of the redacted information conveys. To the contrary, the so-called “VERIFIED APPLICATION” has numbered paragraphs that, for the most part, correspond to the sections of the FISA statute that governs such applications, Section 1804.24 Having a format in which the application’s paragraphs conform to the statutory requirements makes it easier for the reviewing judge to see that all legally mandated information is included. The requirements are set forth in nine subsections of the statute; the paragraphs of the Page application match up with these nine subsections.
Only one of these subsections pertains to the all-important probable-cause showing. It directs the FBI to provide the court with “a statement of the facts and circumstances relied upon” to justify the Bureau’s beliefs that (a) the proposed target is an agent of a foreign power and (b) the facilities or places the Bureau wants to monitor are being used for the target’s clandestine activities.25 In the end, just thirty-three pages of the first Page application relate to probable cause—and, mind you, these are double-spaced pages often containing fewer than twenty lines, with many lines consisting of a subheading or just a word or two of text. We are not talking War and Peace here.26
A goodly chunk of these thirty-three pages does not address Carter Page at all. It’s all about Russia: the FBI explains that the regime in Moscow is a foreign power, that it has been fiddling in our elections since the Cold War, and that it meddled in them in 2016 by cyberespionage (with the help of WikiLeaks). We are eight pages into the factual recitation before we get to Page. The section related to him—the gravamen of the application—covers two topics: The Russian attempt to recruit Page as a source in 2013, and the Steele dossier. The latter makes up the bulk of the probable-cause showing, pages 15–27, and includes the allegation the FBI patently hung its hat on: Steele’s claim that, while in Russia in July 2016, Page met with the two Putin-regime heavyweights, Sechin and Divyekin.
Even parts of what the application labels as the Page section have nothing to do with Page. There is a long footnote on Steele, which we will come to. And there is an excursion, based on media reports, into how Trump may be soft on Putin, how he may meekly accept the annexation of Crimea, and how the Trump campaign’s supposed intervention in Republican-platform-writing at the GOP convention weakened a plank on arming Ukraine (which we discussed in Chapter 12). There is also a five-page section largely based on Michael Isikoff’s September 23, 2016, Yahoo News article about Page’s purported meetings with Sechin and Divyekin. Notably, even though the Bureau continued going back to the FISC for nine months, and thus had more than ample time to do its own investigation into these matters, the Justice Department and FBI simply regurgitated this press-generated reporting in every application. The FISC judges apparently never questioned this peculiar species of “proof”—which makes you wonder if cut-and-paste from the newspapers is standard operating procedure in top-secret, national-security surveillance.
The concluding pages of the probable cause section do not even pretend to add to the probable cause showing. Essentially, they pose a summary of what the foregoing pages have established. There is then apparently a description of criminal statutes Page had allegedly violated. We have to say “apparently” because these pages are all blacked out—and, of course, because Page has never been charged with a crime, even though the Justice Department and FBI four times represented to the court that there was probable cause to believe he was a clandestine agent of Russia engaged in espionage against the United States that involved complicity in the hacking of email accounts.
So much attention has been lavished on the redactions that not nearly enough has been paid to the ramifications of what has been disclosed. The warrant applications are stunning in their concealment from the FISC of the Steele dossier’s Clinton campaign provenance and Steele’s extensive credibility problems. The applications are also unabashed about using counterintelligence authorities to conduct a criminal investigation in the absence of a predicate crime.
Concealing the Dossier’s Clinton-Campaign Origins
The FBI and the Justice Department withheld from the FISC the fact that Steele’s work was a project of the Clinton campaign and the DNC. Unlike most concealments, this one is not accomplished by simply omitting the relevant facts; it is an exercise in obfuscation, played out in a footnote that runs well over a page—the sort of farce as to which a diligent supervisor would admonish a shifty underling that if it takes this much effort to avoid disclosing something, that’s a sure sign that it needs to be disclosed.27
Congressional Democrats have nonetheless claimed that these dense paragraphs prove the Justice Department “was transparent with the Court about Steele’s sourcing.”28 Really? The FISA warrant application says that Steele, referred to as “Source #1,” was “approached by” Fusion GPS founder Glenn Simpson, referred to as “an identified U.S. person,” who
indicated to Source #1 that a U.S.-based law firm had hired the identified U.S. Person to conduct research regarding Candidate #1’s [i.e., Trump’s] ties to Russia. (The identified U.S. Person and Source #1 have a longstanding business relationship.) The identified U.S. Person hired Source #1 to conduct this research. The identified U.S. Person never advised Source #1 as to the motivation behind the research into Candidate #1’s ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1’s campaign.
Five things are worth noticing here.
First, behold the epistemological contortions by which the Justice Department and FBI rationalized concealing that the Clinton campaign and the DNC paid for Steele’s reporting. They ooze underhandedness.
Second, Christopher Steele was not just someone brought into the equation by Glenn Simpson; he was a paid FBI informant before he was recruited by Fusion for the anti-Trump project. It is inconceivable—or at least it ought to be—that the FBI would use information from a paid FBI informant, who was simultaneously being paid by third parties for the same information, without getting to the bottom of exactly who the third parties were.
Third, the “U.S.-based law firm” is Perkins Coie, counsel to the Clinton campaign and the DNC, for whose campaign purposes it retained Fusion GPS (meaning, Simpson and Steele). Remarkably, Perkins Coie’s clients go unmentioned. That is, the Clinton campaign and the DNC used a law firm as a cut-out to conceal their roles in generating anti-Trump research (possibly in violation of campaign finance disclosure requirements). Aiding and abetting the scam, the Justice Department and the FBI—which are supposed to uphold the imperatives of verification and transparency, and are responsible for enforcing campaign disclosure laws—take pains to tell the court only about the law firm, as if the clients were unknown or irrelevant to the court’s consideration of Steele and Simpson’s credibility.
Fourth, the FISA warrant application asserted: “The identified U.S. Person never advised Source #1 as to the motivation behind the research into Candidate #1’s ties to Russia.” You are to believe that Simpson did not tell Steele the Clinton campaign and the DNC were sponsoring their project, and that—even though the Justice Department’s Bruce Ohr and the FBI were aware of the Clinton/DNC connection—the omniscient former British spy, who supposedly knows the deepest secrets of the Kremlin, was somehow in the dark about whom he was working for.
Sure. In any event, there was only one reason to include a statement about the “motivation behind the research” in the application: The FBI and the Justice Department fully realized that implied biases in the process of compiling the dossier’s allegations, including Steele’s implied biases, were material to the FISC’s evaluation. Prosecutors and federal agents do not get to tell a judge reasons that a source’s reports should be thought free of bias while withholding the reasons why bias should be inferred. If you know it is necessary to disclose that the “identified U.S. person” (Simpson) was being paid by “a U.S.-based law firm” (Perkins Coie), then it is at least equally necessary to disclose that, in turn, the law firm was
being paid by its clients: the Clinton campaign and the DNC. To tell half the story is patently misleading.
It is inconceivable that Steele did not know the Clinton campaign and the DNC had sponsored the Fusion research he was conducting. It was not a secret at Fusion: Nellie Ohr knew enough about whom she was working for to tell her husband, Bruce, that the project was connected to the Clinton campaign. Bruce Ohr told Congress he communicated this fact to the Bureau precisely because he knew it was a salient indication of potential bias. Simpson and Steele briefed experienced journalists, and Carter Page recalled that some reporters who contacted him after the Isikoff article was published said the Clinton campaign was behind the allegations against him. Page, upon doing his own research, learned that “a law firm close to the Clinton campaign ha[d] hired a “London-based private investigator to investigate my Russia trip.” In addition, the State Department’s Michael Winer had shared with Steele a second dossier compiled by Cody Shearer and Sidney Blumenthal. It asserted that Fusion GPS had been hired by the DNC to “rack [sic] down Trump compromised story.”29 The House Intelligence Committee found that the Justice Department and FBI were well aware of the dossier’s Clinton campaign and DNC origins. How could all these people know, but Steele himself be kept in the dark?