FISA Court Reprimands FBI, But Makes a Notable Error Itself

March 5, 2020 Updated: March 5, 2020

News Analysis

The presiding judge of the Foreign Intelligence Surveillance Act (FISA) court, James Boasberg, issued a 19-page opinion and order on March 5, examining possible remedies for the material errors and omissions made by the FBI in its surveillance application on former Trump campaign foreign policy adviser Carter Page.

According to Boasberg, the “frequency and seriousness of these errors” in the Page case, combined with the sensitive nature and high-level review of the case by the Department of Justice (DOJ) and FBI “have called into question the reliability of the information proffered in other FBI applications.”

In particular, Boasberg in his order stated that “no DOJ or FBI personnel under disciplinary or criminal review relating to their work on FISA applications shall participate in drafting, verifying, reviewing, or submitting such applications to the Court.”

It’s unclear which current DOJ or FBI officials, if any, are under criminal investigations related to the Page FISA process.

Boasberg also ordered that “any finding of misconduct relating to the handling of FISA applications shall be promptly reported to the Court.”

The matter of Kevin Clinesmith, a former FBI attorney reportedly referred for criminal prosecution by DOJ Inspector General Michael Horowitz for allegedly altering an email used by officials in obtaining the surveillance warrant on Page, is advancing “on a separate track” according to Boasberg. Other than a short mention, it’s not examined in his ruling.

Information Obtained on Page Sequestered by DOJ

The DOJ had previously determined that the final two of the FISA surveillance applications on Page were “not valid” and that “there was insufficient predication to establish probable cause to believe that [Carter] Page was acting as an agent of a foreign power.”

Boasberg wrote in his order that the information obtained by the government from the four FISAs on Page has been “sequestered” and is being handled under a separate proceeding.

Boasberg is referring to his previous order which noted that the “FBI has agreed to sequester all collection the FBI acquired pursuant to the Court’s authorizations” of the two now-invalid FISAs, “pending further review of the OIG Report and the outcome of related investigations and any litigation.”

The previous order also notes that while the DOJ has yet to make a determination on the validity of the first two Page FISA applications, the DOJ intends to have the FBI sequester information relating to those first two orders “in the same manner as information acquired” in the final two renewals that have now been determined to be invalid.

FISA Court Cites IG Findings

The order from Boasberg frequently cited the December 2019 DOJ Inspector General report, which identified “at least 17 significant errors or omissions in the Carter Page FISA applications, and many additional errors in the Woods Procedures.” The IG report also noted that “none of these inaccuracies and omissions were brought to the attention of OI [DOJ’s Office of Intelligence] before the last FISA application was filed in June 2017.”

Horowitz expressed his deep level of concern over the FBI’s actions during congressional testimony, noting that “there is such a range of conduct here that is inexplicable and the answers we got were not satisfactory, that we’re left trying to understand how could all these errors have occurred over a nine-month period or so, among three teams—hand-picked—the highest-profile case in the FBI, going to the very top of the organization, involving a presidential campaign.”

Horowitz noted that “our final recommendation was to refer the entire chain of command that we outline here to the FBI and the Department for consideration of how to assess and address their performance failures.”

Wray’s Testimony on Referrals

The matter of FBI personnel referrals was also addressed during the congressional testimony of FBI Director Christopher Wray on Feb. 5, 2020:

“At the more senior levels of the FBI, the people involved in every respect that I can think of are gone from the FBI.

“As to the current employees, there are what I would call more line-level employees who were involved in some of the events in the report. All of those employees, anybody who still remains at the FBI—again, they tend to be more line-level people—were referred to our Office of Professional Responsibility, which is our disciplinary arm, which is the standard process.”

Wray also referenced the investigation being conducted by U.S. Attorney Durham, noting that “there is, of course as you know, the ongoing John Durham investigation. We have been cooperating fully as the Attorney General himself has said. I look forward to hopefully having another hearing with you at some point where we can have a very different kind of exchange about the FBI.”

In other words, the employees that have left the FBI are outside of the FBI’s oversight, but they aren’t outside the purview of the investigation being conducted by Durham and overseen by Attorney General William Barr.

Material Error Contained in FISA Court Filing

Boasberg’s opinion and order contains what appears to be a material error. First noted by an internet researcher, the error is contained on page 6 of the FISA court order:

“The FBI speculates that the [person who hired Steele] was likely looking for information that could be used to discredit [Clinton’s] campaign.”

Boasberg was attempting to highlight that while the FBI acknowledged the “likely political bias” of Glenn Simpson and Fusion GPS in their application to the FISA court, information that “confirmed the political origins of the Steele reporting” wasn’t disclosed to the FISA court. Additionally, information that subsequently came into the FBI’s possession, including “Steele’s own personal bias” was left out of the renewal applications.

Citing footnote 8 of the original Page FISA application, Boasberg appears to have erroneously inserted the word “Clinton’s” when the correct name would actually be “Trump’s.”

Footnote 8, which begins on page 15 and continues to the top of page 16, reads as follows:

“Source #1, who now owns a foreign business/financial intelligence firm, was approached by 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 ties to Russia (the identified U.S. person and Source #1 have a long-standing 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.”

“Source #1” is Christopher Steele. The “identified U.S. person” is Glenn Simpson of Fusion GPS. The “U.S.-based law firm” is Perkins Coie, the law firm for the DNC.

And “Candidate #1” is then-candidate Trump.

There are numerous references with the Page FISA application that support Trump as “Candidate #1” but one reference in particular, on page 4 of the initial FISA application, makes this clear beyond doubt:

“Page is a former foreign policy advisor to a Candidate for U.S. President (Candidate #1).”

Page was a “former foreign policy advisor” to the Trump campaign, beginning around March 2016.

While the most obvious explanation for Boasberg’s use of the word “Clinton’s” in place of the obviously correct “Trump’s” appears to be that a simple error, this, in itself, raises questions in light of the pending reauthorization of the Foreign Intelligence Surveillance Act now before Congress.

The use of Clinton in place of Trump alters the entirety of what actually transpired in the months leading up to the 2016 election. The error is not a small one, nor is it of the typical typo variety. That this error managed to make its way into a finalized opinion and order from the FISA court’s presiding judge raises real questions as to how deep Boasberg’s grasp of the underlying facts goes.

Given that the entire thrust of Boasberg’s order was to help ensure that the types of errors and manipulation of the FISA court that took place regarding the Page FISA and subsequent renewals wouldn’t occur in the future, Boasberg’s notable error particularly stands out.

Update: The Foreign Intelligence Surveillance Court has now published a corrected version of the Opinion and Order with the mistake highlighted in this article corrected.