News Analysis
While President Donald Trump’s acquittal by the Senate on Feb. 5 dominated the news this week, there were three other significant developments that received little attention.
Notably, on the morning of Feb. 5, FBI Director Christopher Wray made several significant and noteworthy comments and admissions pertaining to FISA Abuse and the ongoing investigation by U.S. Attorney John Durham during testimony before the House Judiciary Committee.
That afternoon, a letter jointly sent by Sen. Charles Grassley (R-Iowa), chairman of the Senate Finance Committee, and Sen. Ron Johnson (R-WI), Chairman of the Homeland Security and Governmental Affairs Committee, requested the dates and locations of any travel that Hunter Biden, the son of former Vice President Joe Biden, had made while receiving a protective detail from the Secret Service. The Senators’ letter appeared to be focused specifically on Hunter Biden’s trips to Ukraine and China.
And just two days earlier, on Feb. 3, a quiet release from the FISA Court took place. The release was actually a previously unreleased Jan. 31 response from the government that provided additional details regarding incremental steps the Department of Justice (DOJ) and FBI intended to take in order to ensure future accuracy of any FISA applications presented to the FISA Court.
Wray Acknowledges Illegal Surveillance of Trump Campaign Aide
During FBI Director Christopher Wray’s lengthy testimony before the House Judiciary Committee on Feb. 5, a few notable comments were put forth by the director.
At the 1:47:05 mark of Wray’s 4 hour and 20 minute testimony, Wray was asked by Rep. John Ratcliffe about the recent notification to the FISA Court by the DOJ that the final two FISA warrants on Trump 2016 campaign aide Carter Page were deemed to be “not valid.” The DOJ also informed the FISA Court that with regard to the two final applications, “there was insufficient predication to establish probable cause to believe that [Carter] Page was acting as an agent of a foreign power.”
The order 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 [Office of Inspector General] Report and the outcome of related investigations and any litigation.”
The order also notes that while the DOJ hasn’t yet made a determination on the validity of the first two 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.
Ratcliffe touched on this matter, telling Wray that the DOJ and the FISA Court “acknowledge that this was illegal surveillance with respect to at least several of these FISA applications because there was not probable cause or proper predication. Correct?” Wray responded to Ratcliffe’s question with a simple one word response: “Right.” In doing so, the FBI Director acknowledged that the FBI conducted illegal surveillance of Page.
Ratcliffe continued, noting that “illegal surveillance and changing evidence to conduct illegal surveillance is the very definition of fraud on the court, is it not?”
Wray responded to Ratcliffe, stating, “Well, I certainly think it describes conduct that’s utterly unacceptable,” adding that “we have accepted every finding in the Inspector General’s report, including some that are extremely painful to us as an institution.”
This is a significant admission on the part of the FBI Director, affirming that the FBI engaged in illegal surveillance on an American citizen. It would also mean that any information collected under the final two Page FISAs was done so illegally. As previously noted, a decision on the legality of the the original FISA and its first renewal is still pending.
Ratcliffe then went a bit further in closing this segment, stating, “I remain convinced that the prior administration weaponized the FBI for political motivation and purposes. I just wonder whether or not you’re going to be able to put the genie back in the bottle.”
The most interesting, and likely the most important moment occurred at the 2:25:45 mark in Wray’s testimony. Wray, who was being questioned by Rep. Tom McClintock (R-Calif.), noted that “where there are people who need to be held accountable, we have a disciplinary process for that. For the current employees. The vast majority of people involved in the conduct you’re describing are no longer with the FBI and not subject to the disciplinary project in the first place.”
Wray then continued, this time referencing the ongoing 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.”
Wray’s answers to McClintock are perhaps best read as a single thought. The employees that have left the FBI are outside of the FBI’s oversight, but they are not outside the purview of the investigation being conducted by Durham and overseen by Attorney General William Barr.
Wray would return to this matter later in his testimony at the 3:15:05 mark:
“At the more senior levels of the FBI, the people involved in every respect that I can think of are gone from the FBI. And of course, there is an ongoing investigation by Mr. Durham with which we’re actively cooperating and fully cooperating. 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. After there has been fact-finding by the Inspector General, the facts go to our disciplinary arm and by long-standing process that’s how we handle discipline about those people. We have erred on the side of inclusion when we did that. So what I mean by that is there are some people in the report who were literally named, like, once or twice, and it’s not really clear they were even named in a way that is problematic. But we’ve gone ahead and just figured better safe than sorry and we’ve sent all those names to the Office of Professional Responsibility. We will follow that process and I have made very clear that if that process results in recommendations of discipline, then we’re gonna impose discipline and we’re gonna hold people accountable.”
While it is not known when Durham will complete his investigation, there have been reports that he has expanded his investigation and has moved toward interviews with some senior Obama administration officials, including former CIA Director John Brennan and former Director of National Intelligence James Clapper.
According to an Oct. 19 article by The New York Times, Durham has already interviewed “about two dozen former and current F.B.I. officials” and that the “number of interviews shows that Mr. Durham’s review is further along than previously known.” The paper also reported that Durham’s efforts were being aided by “two former senior F.B.I. agents” who were assisting with the review.
In addition to the dozens of FBI interviews, Durham’s investigative team has also reportedly “questioned officials in the Office of the Director of National Intelligence,” although Clapper doesn’t appear to have been among those interviewed. Nor have Durham or his team yet questioned or interviewed CIA personnel.
The number of interviews conducted as well as the widening scope suggests that Durham has been gathering all available facts, evidence, and data prior to approaching the central figures in his inquiry.
Changes in the FBI’s FISA Process
The FISA Court release contained a Jan. 31 response by the Government to the Amicus’s Letter Brief that was filed on Jan. 15 by David Kris. Kris had been appointed by the FISA Court on Jan. 10 in order to help the court assess the government’s Jan. 10 response to an earlier Dec. 17 FISA Court order with regard to actions the FBI intended to take following the findings of DOJ Inspector General Michael Horowitz in his report on FISA abuse.
Of particular interest was the government’s admission that the DOJ and the FBI “have been actively considering whether additional measures are warranted in light of the findings of the OIG Report and the corrective measures identified by Director Wray.”
The government noted that the “FBI and DOJ will need time to assess if the corrective actions are effective and to think strategically as to whether additional measures need to be put in place based on the results of those measures.” The government asked the court for “an ongoing period of implementation supplemented by updates to the court.”
Two footnotes within the release stand out based on the strength of the language used. The first noted that Wray has implemented “more than 40 corrective actions, making changes beyond those recommended by the OIG.” The second footnote noted that the FBI would implement “further actions deemed appropriate” and stated that the FBI is “committed to learning from the failures of the Crossfire Hurricane Investigation.”
The filing also identified a number of corrective actions to be taken with regard to FISA standards and procedures—all of which stemmed from noted failures of the FBI’s process in the applications on former Trump campaign aide Carter Page.
Many of these actions appear designed to greatly enhance the information provided to the Office of Intelligence (OI) which provides oversight of the FISA process. The IG report specifically noted how the OI appeared to have been repeatedly bypassed during the Page FISA applications.
In one example, the IG report noted, “The fact that the Primary Sub-source’s account contradicted key assertions attributed to his/her own sub-sources in Steele’s Reports 94, 95, and 102 should have generated significant discussions between the Crossfire Hurricane team and OI prior to submitting the next FISA.”
This issue was significant enough that Stuart Evans, the NSD’s then-deputy assistant attorney general, with oversight responsibility over the OI, claimed that “had OI been made aware of the information, such discussions might have included the possibility of foregoing the renewal request altogether, at least until the FBI reconciled the differences between Steele’s account and the Primary Sub-source’s account.”
According to the Inspector General “none of the inaccuracies and omissions that we identified in the renewal applications were brought to the attention of OI before the applications were filed.”
This lack of information directly impacted the department officials who were providing the final signoff on the FISA applications:
“Similar to the first application, the Department officials who reviewed one or more of the renewal applications, including [former Deputy Attorney General Sally] Yates, [former Acting Attorney General Dana] Boente, and [former Deputy Attorney General Rod] Rosenstein, did not have accurate and complete information at the time they approved them,” the report states.
The government also is undertaking corrective actions with regard to the use of Confidential Human Sources (CHS), requiring additional information from the source’s handler. Of particular focus going forward is information relating to a CHS’s reliability and accuracy along with any bias or motivation. Additionally, any relationships a CHS might have with other governmental agencies must be thoroughly vetted in conjunction with that second agency.
Additionally, the government is seeking to formalize the role of FBI supervisors and FBI attorneys in the FISA review process.
In a Feb. 11, 2019, article, we explored the Page FISA process based on testimonies from those involved and were surprised to find that the process was not only arbitrary regarding who might review the actual application, but also that senior officials were generally not involved in the verification or fact-checking of FISA applications.
Sally Moyer, who was a unit chief at the Office of General Counsel, told lawmakers that only the originating agent and the supervisory special agent in the field actually look at the Woods file, which provides facts supporting the allegations made in a FISA application during its preparation.
Trisha Anderson, the principal deputy general counsel for the FBI and head of the bureau’s National Security and Cyber Law Branch, testified that each day the director might receive 15 to 20 FISAs to sign, with each containing large amounts of documentation. Anderson testified that the director was allotted 20 minutes to review the entirety of the day’s FISA applications—not 20 minutes per FISA.
Anderson also told investigators that the Page FISA “was handled a little bit differently in that sense, in that it received very high-level review and approvals—informal, oral approvals—before it ever came to me for signature.”
The unusual preliminary review and approval, which came from then-Deputy FBI Director Andrew McCabe and Yates, appear to have had a substantial impact on the normal review process, leading other individuals like Anderson to believe that the Page FISA was more vetted than it really was.
Many of the newly enacted or proposed rules appear to address many of these historical deficiencies in the FISA process.
Senate Committee Inquiry for Hunter Biden Documents
Senators Grassley and Johnson on Feb. 5 sent a letter to James Murray, the Director of the U.S. Secret Service. The letter noted that the Committee on Finance and Homeland Security and Governmental Affairs is “reviewing potential conflicts of interest posed by the business activities of Hunter Biden and his associates during the Obama administration, particularly with respect to his business activities in Ukraine and China.”
The letter detailed a transaction that took place in China after Hunter Biden had traveled there aboard Air Force Two with his father, then-Vice President Joe Biden:
“In December of 2013, one month after Rosemont Seneca’ s joint venture with Bohai Capital to form BHR, Hunter Biden reportedly flew aboard Air Force Two with then-Vice President Biden to China. While in China, he helped arrange for Jonathan Li, CEO of Bohai Capital, to ‘shake hands’ with Vice President Biden. Afterward, Hunter Biden met with Li for reportedly a ‘social meeting.’ After the China trip, BHR’s business license was approved. Then, in 2015, BHR joined with Aviation Industry Corporation of China (AVIC) to acquire Henniges, which was the ‘biggest Chinese investment into US automotive manufacturing assets to date.'”
The letter asked for any information regarding Hunter Biden’s use of “government-sponsored travel to help conduct private business, to include his work for Rosemont Seneca and related entities in China and Ukraine.”
The letter stated that in order “to help the committees better understand Hunter Biden’s travel arrangements to conduct business related to his dealings in Ukraine and China, among other countries, while he received a protective detail, please provide the following information no later than February 19, 2020:
- Please describe the protective detail that Hunter Biden received while his father was Vice President.
- Please provide a list of all dates and locations of travel, international and domestic, for Hunter Biden while he received a protective detail. In your response, please note whether his travel was on Air Force One or Two, or other government aircraft, as applicable and whether additional family members were present for each trip.”
Hunter Biden’s board seat with Burisma, one of the largest natural gas companies in Ukraine, along with Joe Biden’s involvement in the politics of Ukraine, has received significant public attention. So far, less is known publicly about Hunter Biden’s involvement in transactions with China which constitute the larger thrust of the Grassley-Johnson letter.
This is not the first request made by Johnson and Grassley. In November 2019, the Senators sent two separate letters regarding the activities of Hunter Biden.
A Nov. 6 letter was sent to Secretary of State Mike Pompeo and noted reports that “Hunter Biden’s work for Burisma prompted concerns among State Department officials at the time that the connection could complicate Vice President Biden’s diplomacy in Ukraine.”
The letter touched on Hunter Biden’s above-average compensation from Burisma and also discussed Joe Biden’s role in the dismissal of Ukrainian prosecutor Viktor Shokin through the threat of withholding $1 billion in loan guarantees.
The letter also noted that “emails recently obtained and made public through a Freedom of Information Act request indicate that Burisma’s consulting firm used Hunter Biden’s role on Burisma’s board to gain access and potentially influence matters at the State Department.”
The Nov. 6 letter asked “what actions, if any, the Obama administration took to ensure that policy decisions relating to Ukraine and Burisma were not improperly influenced by the employment and financial interests of family members,” and included a series of specific questions for Pompeo to answer. It also requested all State Department records relating to Hunter Biden, Devon Archer, Christopher Heinz and Karen Tramontano along with various corporate entities that were affiliated with Hunter Biden.
The final and seventh question of the Grassley-Johnson letter asked the following:
“Has the State Department requested that the Office of the Legal Adviser or the Office of Inspector General review potential concerns and conflicts of interest related to Hunter Biden’s work for Burisma while Vice President Biden reportedly acted as the United States’ top official in Ukraine? If not, why not?”
Approximately one week later, Grassley and Johnson sent another letter on Nov. 15, this time to Ken Blanco, the Director of the Financial Crimes Enforcement Network. The letter noted that “the Senate Finance Committee and Homeland Security and Governmental Affairs Committee are conducting an investigation into potentially improper actions by the Obama administration with respect to Burisma Holdings (Burisma) and Ukraine.”
The letter noted that Burisma’s consulting firm, Blue Star Strategies, “used Hunter Biden’s board membership to gain access to Obama administration officials at the State Department and potentially influence matters before government officials on behalf of Burisma. Grassley and Johnson noted that their committees had “jurisdiction over the taxpayer-funded operations of the State Department and the Financial Crimes Enforcement Network (FinCEN).”
The Nov. 15 letter asked Blanco for all Suspicious Activity Reports (SARs) and related documents that had been filed “regarding the following individuals or entities”:
- Hunter Biden
- Devon Archer
- Christopher Heinz (stepson of former Secretary of State John Kerry)
- Karen Tramontano (CEO – Blue Star Strategies)
- Sally Painter (COO – Blue Star Strategies)
- Burisma Holdings
- Rosemont Seneca Partners
- Rosemont Seneca Bohaii LLC
- Rosemont Capital
- Bohai Harvest RST
- Blue Star Strategies
Yahoo News reported on Feb. 6 that the Treasury Department “has complied with Republican senators’ requests for highly sensitive and closely held financial records about Hunter Biden and his associates and has turned over ‘”evidence”‘ of questionable origin’ to them.”
Because of the one-day proximity to the Feb. 5 letter sent by Grassley and Johnson to James Murray, the Director of the U.S. Secret Service, there has been some confusion, with many concluding that the Yahoo News report was referring to this most recent letter.
In fact, the response of the Treasury Department refers to the Nov. 15 letter that was sent to Ken Blanco, the Director of the Financial Crimes Enforcement Network (FinCEN), that was discussed directly above.
As previously noted, the committees led by Grassley and Johnson have “jurisdiction over the taxpayer-funded operations of the State Department and the Financial Crimes Enforcement Network (FinCEN).”
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