The FBI’s application for a warrant to spy on 2016 Trump campaign adviser Carter Page—a key part of the agency’s investigation of the Trump campaign—has been shown to be fraught with irregularities.
Ahead of the release of the report by Department of Justice (DOJ) Inspector General Michael Horowitz looking into potential abuses of the Foreign Intelligence Surveillance Act (FISA), here we provide an overview of known irregularities in the warrant application.
The initiation of the inspector general's investigation was
originally announced on March 28, 2018. However, the release of the IG report has been repeatedly delayed.
“As part of this examination, the [Office of Inspector General] also will review information that was known to the DOJ and the FBI at the time the applications were filed from or about an alleged FBI confidential source. Additionally, the OIG will review the DOJ’s and FBI’s relationship and communications with the alleged source as they relate to the [FISA court] applications.“
The “alleged FBI confidential source” being referenced in the IG announcement is former British MI6 spy Christopher Steele. His “dossier”—an ongoing collection of individual documents—was used by the FBI as a large component of their warrant application to spy on Page in October 2016.
But there are some obvious problems with the FBI’s reliance on the
Steele dossier. For one thing, former FBI Director James Comey
testified before Congress to the FBI’s lack of verification of the Steele dossier:
“What I understand by verified is we then try to replicate the source information, so that it becomes FBI investigation and our conclusions rather than a reliable source’s. That’s what I understand it, the difference to be.
“And that work wasn’t completed by the time I left in May of 2017, to my knowledge.”
In other words, Comey
told congressional investigators the Steele dossier wasn’t verified as of May 2017. Yet, somehow, the dossier was used as the primary piece of evidence by the FBI to obtain the
Page FISA warrant on Oct. 21, 2016.
As the dossier was making its way into the FBI, the agency began its preparations to obtain a FISA warrant on Page, who was surveilled under Title I of the FISA.
According to
testimony to Congress by former FBI General Counsel James Baker in October 2018, it appears that the FBI set its sights on Page in the summer of 2016. When asked how he had first gained knowledge of the FBI’s intention to pursue a FISA warrant on Page, Baker testified that it came through his familiarity with the FBI’s investigation:
Baker: “I learned of — so I was aware when the FBI first started to focus on Carter Page, I was aware of that because it was part of the broader investigation that we were conducting. So I was aware that we were investigating him. And then at some point in time –”
Rep. Meadows: “But that was many years ago. That was in 2014. Or are you talking about 2016?”
Baker: “I am talking about 2016 in the summer.”
Meadows: “Okay.”
Baker: “Yeah. And so I was aware of the investigation, and then at some point in time, as part of the regular briefings on the case, the briefers mentioned that they were going to pursue a FISA.”
Page Targeted
Notably, it appears that some individuals within the FBI, and possibly the CIA, had begun to focus on Page earlier than Baker was aware. Page had been invited to a July 2016 symposium held at Cambridge regarding the upcoming election.Page attended the event just four days after a July 2016 Moscow trip, and it was during this time in the UK that he first encountered Stefan Halper. Page’s Moscow trip would later figure prominently in the
Steele dossier.
Halper, who has been outed as an FBI informant in media reports, stayed in contact with Page for the next 14 months, severing ties exactly as the final FISA warrant on Page expired.
In a
November 2019 IG report, Horowitz sharply criticized the FBI’s handling of confidential human sources, and, in a
video accompanying the release, stated that “The FBI’s vetting processes for confidential sources, known as validation, did not comply with the attorney general guidelines, particularly with regard to long-term sources.”
The IG
also found that the FBI’s “review committee had not vetted long-term sources in a timely manner” and once again, “did not comply with Attorney General guidelines.” Additionally, the IG noted that “FBI employees were sometimes discouraged from documenting conclusions and recommendations about sources.”
Although Steele’s name isn't mentioned in the November IG report, some of the issues described by Horowitz may pertain directly to the FBI’s handling of Steele.
In a
May 29, 2019, article by The Hill, author John Solomon claimed that Britain’s top national security official warned U.S. officials in a memo “that the British government lacked confidence in the credibility of former MI6 spy Christopher Steele’s
Russia collusion evidence.”
The existence of this memo has reportedly
been corroborated by Rep. Devin Nunes (R-Calif.) and the memo is also mentioned in a
filing by Lt. Gen. Michael Flynn’s lawyers, which notes the letter was “delivered by the British Embassy to the incoming National Security team after Donald Trump’s election, and to outgoing National Security Advisor Susan Rice.”
The
filing noted that “the letter apparently disavows former British Secret Service Agent Christopher Steele, calls his credibility into question, and declares him untrustworthy.”
The FISA process is generally viewed as one that takes months of preparation before an application is actually presented to the FISA court. But
according to Baker, the process could move very quickly and could even be done orally, if needed:
Shen [Counsel for House Democrats]: “How long will it take to assemble a complete application?”
Baker: “It depends. The cases are prioritized. And so the ones that are the most urgent — so in a counterterrorism case where there is an imminent threat, the process can move extremely quickly, and it can be done all orally.”
When asked what type of evidence might be present in a FISA application, Baker noted that it could come from a wide variety of lawful sources to establish probable cause and could include witness interviews and physical surveillance. Baker listed some additional sources:
“[Y]ou might have, confidential source information. You might have information from a foreign partner. You could have intercepts from some other intelligence agency that may have been provided to the FBI.”
A primary component of the Page application was the
Steele dossier, without which,
according to FBI Deputy Director Andrew McCabe, no FISA warrant on Page would have been sought.
FBI lawyer Sally Moyer
testified before Congress that without the Steele dossier, the Page application would have had a “50–50” chance of achieving the probable cause standard before the FISA court.
Moyer also testified that the FBI’s Woods file, which provides facts supporting the allegations made in a FISA application, was not reviewed as robustly as had been thought:
Somers [Counsel for House Republicans]: “So you don’t — do you review the Woods’ file?”
Moyer: “No.”
Somers: “Did you review the Woods’ file in the Carter Page application?”
Moyer: “No.”
Moyer told investigators that “the person that’s signing the application is relying on the individuals who have signed the Woods form that they have the Woods file.” These individuals would be the case agent and the supervisory special agent in the field.
Somers: “Okay. So beyond the case agent, who looks at a Woods’ file?”
Moyer: “The supervisory special agent in the field.”
Somers: “In the field. But no one else out of the field of that chain looks at a Woods’ file in general?”
Moyer: “That is correct, except both of those individuals sign the Woods’ form indicating that the facts are true and accurate and that they have documents to support those facts.”
Moyer acknowledged that in some cases, the supervisory special agent at FBI headquarters who is signing off on a FISA application might choose to review the Woods file, but that it wasn’t done for the Page FISA.
Somers: “Do you know if that happened in the case of Carter Page?”
Moyer: “I don’t think it did in this case.”
Unusual Review Process
Additionally, there appears to have been an unusual review process that took place within the FBI with regard to the FISA warrant on Page.Trisha Anderson, the principal deputy general counsel for the FBI and head of the bureau’s National Security and Cyber Law Branch, approved the application for a FISA warrant to spy on Page before it went to then-FBI Director Comey.
According to congressional testimony by Anderson, preapprovals for the Page FISA warrant were provided by both McCabe and Deputy Attorney General Sally Yates, before the FISA application was ever presented to Anderson for review.
Anderson testified that “my boss [Baker] and my boss’ boss [McCabe] had already reviewed and approved this application. And, in fact, the Deputy Attorney General [Yates], who had the authority to sign the application, to be the substantive approver on the FISA application itself, had approved the application. And that typically would not have been the case before I did that.”
The unusual preliminary reviews and approvals from both McCabe and Yates appear to have had a substantial impact on the normal review process, leading other individuals such as Anderson to believe that the warrant application was more vetted than it really was.
Anderson testified that she hadn't read the Page FISA application prior to signing off on it and passing it along to Comey for the final FBI signature. Anderson also testified that each day, the director might receive 15 to 20 FISAs to sign, with each containing large amounts of documentation:
Baker [Counsel for House Republicans]: “And you said just a minute ago — I thought you said that the Director has 20 minutes set aside to review all the FISAs?”
Anderson: “Approximately, yes.”
Steele’s Contacts With Media
To make matters worse, circular reporting, provided by Steele himself, was used as corroboration of the dossier. The
Page FISA extensively cited a Sept. 23, 2016,
Yahoo News article by Michael Isikoff, which focused on Page’s July 2016 trip to Moscow. This information, which was
used by the FBI to “corroborate” the dossier, was provided to Isikoff by Steele, the author of the dossier.
Additionally, Trump campaign adviser George Papadopoulos, whose conversation with Australian diplomat Alexander Downer was used to open the FBI’s July 31, 2016, counterintelligence investigation, is referenced in the FISA, yet there “is no evidence of any cooperation or conspiracy between Page and Papadopoulos,” according to a
House Intelligence Committee memo.
Steele also had ongoing contact with former and current officials along with many members of the media in the fall of 2016. Perkins Coie, the Democratic National Committee (DNC) law firm that hired Fusion GPS on behalf of Hillary Clinton's campaign and the DNC, was aware of these media contacts as noted in the
House Intelligence Committee Report on Russia Active Measures:
“Perkins Coie was aware of Steele's initial media contacts because they hosted at least one meeting in Washington D.C. in 2016 with Steele and Fusion GPS where this matter was discussed.”
Steele also met with members of the U.S. media during his visit to Washington, doing so “at Fusion’s instruction.” According to
UK court documents, Steele testified that he “briefed” The New York Times, The Washington Post, Yahoo News, The New Yorker, and CNN at the end of September 2016. Steele would engage in a second round of media contact in mid-October 2016, meeting again with The New York Times, The Washington Post, and Yahoo News. Steele testified that all these meetings were “conducted verbally in person.”
Steele was terminated as a source by the FBI on Nov. 1, 2016, for communicating with the media.
Steele’s Contact With State Department
During a September 2016 trip to Washington, Steele
met with Jonathan Winer,
then-deputy assistant secretary of state for international law enforcement and former special envoy for Libya, whom Steele had known since at least 2010.
Winer had received a
separate dossier, very similar to Steele’s, from longtime Clinton confidant Sidney Blumenthal. This “second dossier” had been compiled by another longtime Clinton operative, former journalist Cody Shearer, and echoed claims made in the Steele dossier. Winer gave Steele a copy of the “second dossier.” Steele then
shared this second dossier with the FBI, which may have used it as a means to corroborate Steele’s own dossier.
Steele later met with Kathleen Kavalec, then-deputy assistant secretary for European and Eurasian affairs, on Oct. 11, 2016, just 10 days before the FBI obtained the warrant to spy on Page on Oct. 21, 2016.
Kavalec’s notes from the meeting indicate that she was aware that Steele had been talking to the media as her notes mention “Wash Po/NYT” under a section listed as “Managing.” And we also know that her typed notes were
passed to “other government officials” on Oct. 19, 2016—two days before the issuance of the Page FISA warrant.
Notably, Kavalec’s boss was Victoria Nuland, the former assistant secretary of state for European and Eurasian affairs. Nuland has
previously admitted to receiving an early version of Steele’s dossier in July 2016. According to
recent congressional testimony from Fiona Hill, Nuland directed Kavalec to meet with Steele.
Rep. Zeldin: “Are you aware of her [Victoria Nuland] directing anyone at State to talk to Christopher Steele during her tenure as Assistant Secretary?”
Hill: “I was aware from the exchanges that she asked Kathy Kavalec to talk to him after we had this discussion already, when I suppose Christopher Steele had asked to talk to her, and she asked Kathy Kavalec to talk to him instead.”
Zeldin: “In your opinion, would that be proper?”
Hill: “I wouldn't have talked to him in that position, but whether it's proper or not, I think, is a judgment for Assistant Secretary Nuland and others.”
Zeldin: “This was in the midst of the 2016 election, correct?”
Hill: “I believe that's the case. I mean, I read about this later, and Kathy Kavalec told me that she'd been instructed to go and talk to him.”
According to Hill’s testimony, Steele was “my counterpart when I was the director, the national intelligence officer,” and she had a “working relationship” with Steele “for the whole period that I was national intelligence officer, so that would be from 2005 to the end of 2009.”
As noted in a
May 10 letter sent by Sen. Lindsey Graham (R-S.C.) to both Secretary of State Mike Pompeo and Inspector General Horowitz, “Ms. Kavalec’s contacts with Steel may have been the most significant and memorialized communications with him by a U.S. government official prior to the issuance of the Carter Page FISA warrant.”
Steele’s Anti-Trump Bias Known to DOJ’s Bruce Ohr
Steele had a longstanding relationship with DOJ official Bruce Ohr, who, at the time, was the highest-ranking career official at the department, and maintained ongoing contact beginning in July 2016. Following Steele’s official termination by the FBI, Ohr and Steele communicated regularly for another full year, until November 2017.
Steele’s personal biases against then-candidate Trump have been reported in the media. During his
Aug. 28, 2018, testimony, Ohr testified that he informed the FBI of Steele’s bias, along with details of Ohr's wife’s employment with Fusion GPS—and Fusion’s political mandate—before the Oct. 21, 2016, FISA application made on Page:
Rep. Ratcliffe: “So the record is clear, what the Department of Justice and the FBI was aware of prior to the first FISA application was your relationship with Christopher Steele and Glenn Simpson, your wife’s relationship with Christopher Steele and Glenn Simpson, Mr. Steele’s bias against Donald Trump, Mr. Simpson’s bias against Donald Trump, your wife’s compensation for work for Glenn Simpson and Fusion GPS, correct?”
Ohr: “Right. So just, again, to reiterate, when I spoke with the FBI, I told them my wife was working for Fusion GPS. I told them Fusion GPS was doing research on Donald Trump. You know, I don’t know if I used the term opposition research, but certainly that was my—what I tried to convey to them. I told them this is the information I had gotten from Chris Steele. At some point, and I don’t remember exactly when, I don’t think it was the first conversation, I told them that Chris Steele was desperate that Donald Trump not get elected.”
Ohr also personally told then-Deputy FBI Director McCabe of his concerns about possible bias during an August 2016 meeting:
Rep. Meadows: “So in August of 2016, you tell Andy McCabe that you’re concerned because your wife works for Fusion GPS and that’s where you’re getting the information?”
Ohr: “I wanted Mr. McCabe to know that there was a possible, you know—that the—”
Meadows: “Conflict of interest—”
Ohr: “—of interest or appearance thereof, yeah.”
Meadows: “So there’s a possible conflict of interest in August of 2016 before a FISA warrant is actually initiated?”
Ohr: “I think I did not mean to say conflict of interest. What I would say is that in evaluating any information that I transmitted to the FBI, I wanted the FBI to be aware of any possible bias—”
Meadows: “So you believe there was the possibility of bias?”
Ohr: “Yes.”
Although the public doesn't know what will be contained in the IG report—or what conclusions, recommendations, and referrals may be made—Rep. John Ratcliffe had this to say on
Fox News:
"The IG Report is going to be an indictment of the Steele Dossier and everyone that relied upon it. I know that because it has to be—I've seen all of the underlying documents. Same thing with regard to Papadopoulos. There was exculpatory information and I know that it wasn’t timely provided to the FISA court. What conclusions Horowitz makes from that, I don’t know, I haven’t seen the report. But again, I’m very confident that when Jim Comey said FISA abuse was a bunch of nonsense last December, that it wasn’t. And the Inspector General’s report is going to say that."
Early Steele Dossier Proponents Question Its Accuracy
Isikoff, whose Sept. 23, 2016, article was used in the Page FISA, gave an interview on John Ziegler’s
podcast, “Free Speech Broadcasting,” on Dec. 15, 2018, in which Isikoff appeared to materially back away from the assertions made in his original article:
Zeigler: "You mention the Steele dossier, which to me has been unfairly derided, especially by Trump fans. Would you agree that a lot of what’s in the Steele dossier has been at least somewhat vindicated? Would you agree with that assessment?"
Isikoff: "No."
Isikoff acknowledged, “When you actually get into the details of the Steele dossier, the specific allegations, we have not seen the evidence to support them, and, in fact, there’s good grounds to think that some of the more sensational allegations will never be proven and are likely false. ... But based on the public record at this point, I’d have to say that most of the specific allegations have not been borne out.”
Steele had also claimed in his dossier that former Trump lawyer Michael Cohen had visited Prague, something that has been consistently and vehemently denied by both Cohen and his lawyer at the time, Lanny Davis.
In a Dec. 16, 2018,
appearance on MSNBC, Davis was asked by Kasie Hunt if the Prague trip ever happened. Davis responded, “No, no Prague, ever, never.”
Greg Miller, national security correspondent for The Washington Post, appeared in a Nov. 16, 2018, interview
televised on C-Span. Miller, when asked for his opinion of the dossier, claimed that the dossier was “accurate in its broadest and most sweeping assertions and conclusions.” However, Miller added a material caveat, noting that the “narrower you get, the more particular you get, the harder it is to figure out whether it’s on the mark.”
Miller also described specific assertions contained in the dossier that The Washington Post had attempted to prove and failed:
“It’s not for lack of trying. There’s other material in the dossier we literally spent weeks and months trying to run down. There’s an assertion in there that Michael Cohen, Trump’s lawyer, went to Prague to settle some payments that were needed at the end of the campaign. We sent reporters through every hotel in Prague, through all over the place, just to try to figure out if he was ever there, and came away empty.
“We’ve talked to sources at the FBI and CIA and elsewhere. They don’t believe that ever happened.”
Problems With FBI’s Accessing of Raw FISA Data
Months before the FBI’s FISA application on Page, significant irregularities had been discovered by the NSA in the agency’s accessing of raw FISA data on U.S. citizens. The sequence of events would result in what amounted to a surreptitious race between then-NSA Director Adm. Mike Rogers and DOJ National Security Division (NSD) head John Carlin.Following the March 9, 2016, discovery that outside contractors for the FBI had been accessing raw FISA data since at least 2015, Rogers directed the NSA’s Office of Compliance to conduct a “fundamental baseline review of compliance associated with 702” at some point in early April 2016, according to
Senate testimony and a
declassified FISA court ruling.
On April 18, 2016, Rogers moved aggressively in response to the disclosures. He abruptly shut down all FBI outside-contractor access. At this point, both the FBI and the DOJ’s National Security Division (NSD) became aware of Rogers’s compliance review.
The DOJ’s NSD maintains oversight of the intelligence agencies’ use of Section 702 authority. The NSD and the Office of the Director of National Intelligence (ODNI) jointly conduct reviews of the intelligence agencies’ Section 702 activities every 60 days. The NSD—with notice to the ODNI—is required to report any incidents of agency noncompliance or misconduct to the FISA court.
Instead of issuing individual court orders, the attorney general and the director of national intelligence (DNI) are required by
Section 702 to provide the FISA court with annual certifications that specify categories of foreign intelligence information the government is authorized to acquire, pursuant to Section 702.
The attorney general and the DNI also must certify that Intelligence Community agencies will follow targeting procedures and
minimization procedures that are approved by the FISA court as part of the certification.
Carlin filed the government’s proposed
2016 Section 702 certifications on Sept. 26, 2016. Carlin knew the general status of the compliance review by Rogers. The NSD was part of the review. Carlin failed to disclose a critical Jan. 7, 2016,
report by the NSA inspector general and associated FISA abuse to the FISA court in his 2016 certification. Carlin also failed to disclose Rogers’s ongoing Section 702 compliance review.
On Sept. 27, 2016, the day after he filed the annual certifications, Carlin announced his
resignation, which would become effective on Oct. 15, 2016.
On Oct. 4, 2016, a standard follow-up court hearing was held (
Page 19), with Carlin present. Again, he made no disclosure of FISA abuse or other related issues. This lack of disclosure would be noted by the court later in the April 2017 ruling:
“The government’s failure to disclose those IG and OCO reviews at the October 4, 2016, hearing [was ascribed] to an institutional ‘lack of candor.’”
On Oct. 15, 2016, Carlin formally left the NSD.
On Oct. 20, 2016, Rogers was briefed by the NSA compliance officer on findings from the 702 NSA compliance audit. The audit had uncovered a large number of issues, including numerous “about query” violations (
Senate testimony).
Rogers shut down all “about query” activity on Oct. 21, 2016. “About queries” are particularly prone to abuse, since they occur when the target is neither the sender nor the recipient of the collected communication; rather, the target’s “query,” such as an email address, is being passed between two other communicants.
On the same day, the DOJ and FBI sought and received a Title I FISA warrant on Page. At this point, the FISA court still was unaware of the Section 702 violations.
On Oct. 24, 2016, Rogers verbally informed the FISA court of his findings:
“On October 24, 2016, the government orally apprised the Court of significant non-compliance with the NSA’s minimization procedures involving queries of data acquired under Section 702 using U.S. person identifiers. The full scope of non-compliant querying practices had not been previously disclosed to the Court.”
Rogers appeared formally before the FISA court on Oct. 26, 2016, and presented the written findings of his audit:
“Two days later, on the day the Court otherwise would have had to complete its review of the certifications and procedures, the government made a written submission regarding those compliance problems ... and the Court held a hearing to address them.
“The government reported that the NSA IG and OCO were conducting other reviews covering different time periods, with preliminary results suggesting that the problem was widespread during all periods under review.”
The FISA court was unaware of the FISA “query” violations until they were presented to the court by then-NSA Director Rogers.
Carlin didn’t disclose his knowledge of FISA abuse in the annual Section 702 certifications. This omission may have been made to avoid raising suspicions at the FISA court ahead of receiving the Page FISA warrant.
As all of this was transpiring, then-Director of National Intelligence James Clapper and then-Defense Secretary Ash Carter submitted a
recommendation that Rogers be removed from his position as NSA chief. The move to fire Rogers, which failed, originated sometime in mid-to-late October 2016—exactly when Rogers was preparing to present his findings to the FISA court.
The timeline of events suggests that the FBI and the NSD were racing against Rogers’s investigation in order to obtain the Page FISA warrant.
Rogers presented his findings directly to the FISA court’s presiding judge, Rosemary Collyer. Collyer and Rogers would work together for the next six months, addressing the issues that Rogers had uncovered.
It was Collyer who wrote the
April 26, 2017, FISA court ruling on the matter. It also was Collyer who signed the original FISA warrant on Page on Oct. 21, 2016, prior to being apprised of the many issues by Rogers.
The litany of abuses described in the April 26, 2017, ruling detailed the use of private contractors by the FBI in relation to Section 702 data. Collyer referred to it as “a very serious Fourth Amendment issue.” The FBI was specifically singled out by the court numerous times in the ruling:
“The improper access previously afforded the contractors has been discontinued. The Court is nonetheless concerned about the FBI’s apparent disregard of minimization rules and whether the FBI may be engaging in similar disclosures of raw Section 702 information that have not been reported.”
Rogers informed Collyer of the ongoing FISA abuses by the FBI and NSD just three days after she personally signed the Page FISA warrant.
Virtually every FBI and DOJ National Security Division official with material involvement in the original Page FISA application would later be removed—either through firing or resignation.
