Government Can’t Prove Wolfe Leaked Classified Carter Page FISA

December 12, 2018 Updated: December 12, 2018

News Analysis

On Dec. 11, two new documents were released in the case of former security director for the Senate Select Committee on Intelligence, James Wolfe.

The first was the U.S. government’s sentencing memorandum. The second was the defendant’s (Wolfe) sentencing memorandum. Both documents provided new details of Wolfe’s case.

Wolfe was the Senate Select Committee on Intelligence’s (SSCI) Director of Security from May 1987 to December 2017, and was responsible for receiving, maintaining, and managing all classified information provided to the SSCI by the Executive Branch of the United States.

Wolfe was accused by the FBI of engaging in ongoing, unauthorized contact with at least four reporters. From the original Wolfe indictment:

“Wolfe engaged in extensive contact with multiple reporters, including conveying to at least two reporters information about MALE-1. WOLFE used his personal cell phone, his SSCl-issued electronic mail account and anonymizing messaging applications, including Signal and WhatsApp, to exchange electronic communications with reporters.”

Of the four reporters, all of whom are female, the identity of three is now known with reasonable certainty.

Reporter #1: Ellen Nakashima of the Washington Post:

From the government’s sentencing memorandum:

“FBI agents showed Wolfe a copy of the April 11, 2017 news article authored by REPORTER #1, and asked Wolfe whether he had had any contact with REPORTER #1. Wolfe falsely denied having any contacts with her.”

From the April 11, 2017, Washington Post article, “FBI Obtained FISA Warrant to Monitor Former Trump Adviser Carter Page,” by Ellen Nakashima, Devlin Barrett, and Adam Entous:

“The FBI obtained a secret court order in October 2016 to monitor the communications of a former adviser to presidential candidate Donald Trump, part of an investigation into possible links between Russia and the campaign, law enforcement and other U.S. officials said.

The FBI and the Justice Department obtained the warrant targeting Carter Page’s communications after convincing a Foreign Intelligence Surveillance Court judge that there was probable cause to believe Page was acting as an agent of a foreign power, in this case Russia, according to the officials.”

“The court documents in that spy case only identify Page as ‘Male 1.’’ Officials familiar with the case said that ‘Male 1’ is Page.”

Reporter #2: Ali Watkins of The New York Times/Politico/Buzzfeed/HuffPost/McClatchy. Watkins and Wolfe were in a personal relationship which began as early as 2013. Watkins’s identity as Reporter #2 has been previously established and was acknowledged in an article by The New York Times.

Reporter #3: Probably Marianna Sotomayor of NBC.

From the government’s sentencing memorandum:

“On October 16, 2017, Wolfe provided REPORTER #3 the unclassified but otherwise not publicly available fact that Wolfe had served MALE-1 with a subpoena to appear before the SSCI [Senate Select Committee on Intelligence]. Exhibit 7A. The next day, Wolfe provided REPORTER #3 with MALE-1’s contact information. Later that day, REPORTER #3’s news organization published a story under her byline, reporting that the SSCI had subpoenaed MALE-1 to testify and that MALE-1 had been contacted by the news organization for comment.”

From Sotomayor’s Oct. 17, 2017, article:

“The Senate Intelligence Committee has subpoenaed documents and testimony from Carter Page as part of its investigation of Russia’s alleged intervention in the 2016 election, a source directly familiar with the matter told NBC News. The committee expects Page will invoke his Fifth Amendment rights and refuse to answer questions, the source said.”

“In an email, Page told NBC News he plans to testify—though he is asking to do it in public on November 1.”

Reporter #4: Identity uncertain.

Wolfe Not Charged With Leaking FISA

On June 7, 2018, Wolfe was arrested and charged with three counts of lying to the FBI in relation to his contact with these reporters. The original Wolfe Indictment was released on the same day. Notably, Wolfe was not charged with leaking any classified information.

At the time of Wolfe’s arrest there was a significant amount of speculation that Wolfe may have leaked the Carter Page FISA documents to Ali Watkins, who then worked as a reporter for Buzzfeed News.

There were some valid reasons for initially believing this might have been the case based on events described within the June indictment:

“On or about March 17, 2017, the Classified Document was transported to the Senate Select Committee. As Director of Security, Wolfe received, maintained, and managed the Classified Document on behalf of the SSCI.

The Classified Document contained both SECRET and TOP SECRET information, including SECRET-level information regarding the identity and activities of the individual referred to in this Indictment as Male-1.”

In a Jan. 4, memo issued by Sen. Chuck Grassley (R-IA), we were given further information indicating that the classified document referenced in the Wolfe indictment was likely the Carter Page FISA.

On March 15, 2017, then-FBI Director James Comey briefed Senate Judiciary Chairman Grassley and Ranking Member Sen. Dianne Feinstein (D-Calif.) on the Russia investigation along with certain details surrounding the Page FISA. From the Grassley Memo:

“In response to the Committee’s inquiries, the Chairman [Grassley] and Ranking Member [Feinstein] received a briefing on March 15, 2017, from then-Director James B. Comey, Jr. That briefing addressed the Russia investigation, the FBI’s relationship with Mr. Steele, and the FBI’s reliance on Mr. Steele’s dossier in two applications it filed for surveillance under the Foreign Intelligence Surveillance Act (FISA).”

Two days later, on March 17, 2017, the original Page FISA application and the first FISA renewal were provided to Grassley and Feinstein. From the Grassley Memo:

“On March 17, 2017, the Chairman and Ranking Member were provided copies of the two relevant FISA applications, which requested authority to conduct surveillance of Carter Page. Both relied heavily on Mr. Steele’s dossier claims, and both applications were granted by the Foreign Intelligence Surveillance Court (FISC).”

It seemed reasonable to assume that if Comey was providing a briefing and Page FISA access to the leaders of the Senate Judiciary Committee, he would be providing the same briefing and document review to the Senate Intelligence Committee.

The government’s Dec. 11, sentencing memorandum confirmed this was indeed the case, noting “the Department of Justice hand-carried the FISA application to the SSCI on several occasions.”

The original Wolfe indictment noted the specific timing of one of Wolfe’s interactions with reporter Watkins:

“On or about March 17, 2017, Wolfe exchanged 82 text messages with Watkins, and that evening engaged in a 28-minute phone call with her.”

The first Page FISA is 83 pages in length, and contains one final signatory page. This led to speculation that Wolfe had leaked the original Page FISA application to Watkins, from whom it made its way to additional media.

Two problems exist with this theory. First, as pointed out by an internet detective, the indictment uses the word “exchanged” not “sent,” implying back and forth messages as opposed to a single series of 82 texts sent from Wolfe.

The second issue relates to the subsequent article written by Watkins, which focused on the identity of Page, but contained no disclosure of the underlying FISA.

On April 3, 2017, Watkins published an article in Buzzfeed, “A Former Trump Advisor Met with a Russian Spy.” In the article, Watkins disclosed that Carter Page was “Male-1” in an already public Court Filing pertaining to three Russian spies: Evgeny Buryakov, Victor Podobnyy, and Igor Sporyshev:

“A court filing by the US government contains a transcript of a recorded conversation in which Podobnyy speaks with one of the other men busted in the spy ring, Igor Sporyshev, about trying to recruit someone identified as “Male-1.” BuzzFeed News has confirmed that “Male-1” is Page.”

The Court Filing, which is 26 pages in length, is included in the Buzzfeed article. Nowhere in the Court Filing is Carter Page named.

But Page is named, referenced and linked to the Court Filing in the FISA Application delivered to the Senate Judiciary and Intelligence Committees. Although Wolfe has not pleaded guilty to doing so, someone disclosed that Page was Male-1 to Watkins.

The government sentencing memorandum points this out and indicates there may have been additional sources of leaks—which Wolfe knew about—within the SSCI:

“For example, while Wolfe denied that he ever disclosed classified information to REPORTER #2, and the government has no evidence that he did, the government proffers that Wolfe admitted to the FBI on December 15, 2017, that he believed REPORTER #2 had been obtaining classified national security information from other SSCI sources yet, despite his responsibilities as Director of Security, he did not initiate or cause an investigation into such a breach because it would have revealed REPORTER #2’s sources.”

In the defendant sentencing memorandum, Wolfe’s lawyers note that Wolfe did not plead guilty to leaking classified information, and did not have access to the Page FISA:

“Mr. Wolfe did not plead guilty to, and does not admit, having shared any information from a Classified Document—even unclassified information—in March or April 2017, as had been alleged originally in Count 2 of the Indictment, and we believe that the government would not be able to prove any such sharing of information by even a preponderance of the evidence. To that point, it is our understanding that Mr. Wolfe was never given access to the contents of the Classified Document in question during any relevant time period—though that document has subsequently been declassified.”

The government’s sentencing memorandum disputes that Wolfe never had access to the classified document:

“Wolfe acknowledged that he was aware of what he called “the FISA,” and stated that he had facilitated the SSCI review of a document that disclosed the existence and predication of the FISA surveillance, which was provided to the SSCI by the Executive Branch on a “read and return” basis beginning in March 2017.”

Notably, the government sentencing memorandum lends the impression that the government still has doubts over some of Wolfe’s claims regarding the leaking of classified information:

“While the investigation has not uncovered evidence that Wolfe disclosed classified information, he nevertheless repeatedly disclosed non-public, SSCI-sensitive information relating to national security investigations.

By repeatedly lying to the FBI, the defendant directly interfered with an FBI national security investigation into the disclosure of classified information related to a Top Secret FISA application.”

At this juncture, we don’t know if the original Page FISA was ever actually transmitted to members of the media, although, as The Washington Post article makes clear, details from the Page FISA were clearly disclosed. The government seems to indicate that suspicions regarding the full scope of Wolfe’s actions remain. Also notable is that the government sentencing memorandum states Wolfe believed there were others with the Senate Intelligence Committee who were leaking classified information to Watkins. The identity of these parties remains unknown.

The Page FISA was first shown to certain Congressional leaders on March 17, 2017. Regardless of what was or was not leaked to the press, it’s notable that the first story written was the article from Watkins, which provided a distorted and inaccurate representation of Page’s participation in the Buryakov Case. A representation that appeared to make Page complicit, as opposed to his true role—that of a witness for the government’s case against one of the Russian spies.

Page’s efforts were initially highlighted during congressional testimony before the House Intelligence Committee during this exchange between Page and Rep. Trey Gowdy (R-S.C.):

GOWDY: I’m just wondering if you can recall whether the Federal Bureau of Investigation may have interviewed you in 2016?

PAGE: During that case related to Mr. Podobnyy, where—which was also illegally leaked, that I was indeed Male No. 1, someone leaked that to Politico and ABC News in April—I had a meeting in the U.S. District Court, Southern District in New York—or the U.S. Attorney’s Office there on the criminal side—and I spoke with them about that then.

Page, who cooperated with the FBI on the case, almost certainly was providing testimony and/or details against Podobnyy in the Buryakov case.

Russian spy Evgeny Buryakov pleaded guilty on March 11, 2016, and was sentenced to 30 months in prison on May 25, 2016. On April 5, 2017, Buryakov was granted early release and deported to Russia.

The government is asking for a sentencing term for Wolfe of 24 months. Wolfe’s lawyers are asking for no jail time, requesting probation with community service. Wolfe’s sentencing is scheduled for Dec.20, 2018.

Wolfe’s lawyers submitted a number of letters of support to the court, including letters written by, “James Clapper, the former Director of the Office of National Intelligence, Robert S. Litt, the former General Counsel for the Office of the Director of National Intelligence and a former federal prosecutor, and Denis McDonough, former White House Chief of Staff and a former member of the National Security Council.”

Also included is a letter from the Senate Select Committee on Intelligence signed by the Chair, Sen.Richard Burr (R-NC), Vice-Chair, Sen. Mark Warner (D-VA), and Sen. Feinstein.

Jeff Carlson is a CFA® Charterholder. He worked for 20 years as an analyst and portfolio manager in the high-yield bond market. He runs the website TheMarketsWork.com

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