FBI Director Christopher Wray has affirmed that the bureau conducted illegal surveillance of former Trump 2016 presidential campaign associate Carter Page, in response to questioning by Rep. John Ratcliffe (R-Texas) during a Feb. 5 House Judiciary Committee hearing.
Ratcliffe’s questions related to the Dec. 9, 2019, report by the Department of Justice Office of Inspector General (OIG) which found “17 significant errors or omissions” in the surveillance warrant and its three renewals the FBI took out on Page under the Foreign Intelligence Surveillance Act (FISA).
Wray steered clear during the hearing from commenting on the OIG report, other than repeating variations of his top-line response: “The failures highlighted in that report are unacceptable. Period. They don’t reflect who the FBI is as an institution and they cannot be repeated.”
Ratcliffe, however, managed to get a more specific acknowledgment from Wray.
“This was illegal surveillance with respect to at least several of these FISA applications because there was not probable cause or proper predication, correct?” he asked.
“Right,” Wray responded.
Since the release of the OIG report, the Justice Department (DOJ) has assessed that two of the FISA warrant renewals were invalid, which means the government can’t rely on any information obtained using them.
That may have broader consequences. While the warrant targeted Page personally, the authority typically granted is so extensive that all Page’s contacts, including most, if not all, of the Trump campaign, would have been at least partially within reach.
Under the government’s “two hop” rule, the FBI could obtain not only all metadata and content of Page’s electronic communications, but also the metadata of all the people he communicated with and all of that reaching months into the past. As such, the warrant may have allowed the bureau to obtain metadata on communications of everyone in the Trump campaign that Page was in electronic contact with.
The OIG report found that the bureau has collected a trove of internal Trump campaign information. FBI officials told the inspector general that information wasn’t the target of their investigation and that the bureau didn’t do anything with it.
Page and three other Trump campaign aides were targeted by the FBI in 2016 in a counterintelligence investigation into whether the Trump campaign colluded with Moscow to sway the 2016 election.
The probe was taken over in May 2017 by a special counsel, former FBI Director Robert Mueller. The probe concluded in March 2019 without establishing any collusion.
Several Democrats emphasized the fact that the DOJ inspector general, Michael Horowitz, didn’t find “documentary or testimonial evidence” of political bias in his investigation.
Wray declined to comment, saying the report speaks for itself.
Ratcliffe pointed out that Horowitz qualified its findings in his Dec. 11, 2019, Senate testimony.
While Horowitz said the lack of evidence pertained to “intentionality” behind the FBI’s conduct, he noted “the lack of satisfactory explanations” for the FBI’s conduct.
“It is unclear what the motivations were,” he said. “On the one hand, gross incompetence, negligence. On the other hand, intentionality, and everywhere in between.”
Ratcliffe suggested that evidence other than “documentary or testimonial” should be considered.
“Just because no FBI agent tells the Inspector General, ‘I admit, I’m biased and politically motivated against President Trump,’ doesn’t mean there isn’t overwhelming evidence of political motivation in the record,” he said.
He gave the example of former FBI lawyer Kevin Clinesmith.
Clinesmith was, for some time, the primary FBI attorney assigned to the Russia investigation. Texts to his colleagues on his work phone released by the OIG showed animosity toward Trump.
The OIG found that Clinesmith altered an email from a liaison with another government agency “by inserting the words ‘not a source’ into it, thus making it appear that the liaison said that Page was ‘not a source’ for the other agency.”
According to the OIG, the alteration contributed to the fact that the final Page warrant renewal “again failed to disclose Page’s past relationship with the other agency.” The other agency has been identified by Page as the CIA.
“Illegal surveillance and changing evidence to conduct illegal surveillance is the very definition of fraud on the court, is it not?” Ratcliffe said.
“Well, I certainly think it describes conduct that’s utterly unacceptable,” Wray replied.
On Jan. 31, the FBI responded to a list of recommendations from an expert appointed by the FISA Court to evaluate the FBI’s proposed reforms of the process it uses to apply for FISA warrants.
In a letter brief filed with the Foreign Intelligence Surveillance Court (FISC), the bureau said it agrees with or is already delivering on a number of the recommendations. It indicated, though, it needs more time on some of them.
On Dec. 19, FISC Presiding Judge James Boasberg ordered the FBI to report the actions it is taking and is planning to take in order to address the failures outlined by the OIG.
He then appointed David Kris, former head of the DOJ’s National Security Division during the Obama administration, to help evaluate the FBI reforms.
Some Republican lawmakers have voiced concerns about Kris, who has been an outspoken supporter of impeaching President Donald Trump and criticized Rep. Devin Nunes (R-Calif.) for a 2018 memo that documented some of the FISA abuses by the FBI in connection with the Page warrants.
In his Jan. 15 response to the FISC, Kris said the FBI’s proposed reforms “point in the right direction” but “they do not go far enough to provide the court with the necessary assurance of accuracy, and therefore must be expanded and improved.”
The FBI proposed new and revised forms, checklists, questionnaires, and documents that should help prevent agents from keeping relevant information from the FISC.
The FBI is also working on new FISA training that will be mandatory for all agents associated with the FISA process.
“Without exception, personnel will be required to pass the test in order to participate in the FISA process,” the FBI letter brief says.
The bureau acknowledged the curriculum for the training isn’t completed and pledged to update the court on its progress in a court filing scheduled for April 30.
One of Kris’s recommendations was that the FISC should require the FBI to brief it on disciplinary reviews stemming from OIG referrals and that the court can take its own measures, including barring certain agents from appearing in the court.
The bureau responded by saying it already has “longstanding” and “well-established” disciplinary processes and will follow them “to ensure individual accountability, where appropriate.”
“Upon completion of its internal review processes, the FBI is available to answer questions the Court may have related to the results,” its letter said.