Andy Finds an Acorn: The Searches of Carter Page’s Devices

I’ve long argued that Trump opponents should include Andrew McCarthy among the right wing Trump defenders they read. That’s true, in part, because he at least feigns to be considering the public evidence (though I think he has long since gotten swept up in tribalism). Moreover, as a former prosecutor who worked on some high visibility national security cases, he knows how these things worked fifteen years ago.

His piece on the Adam Schiff memo is typical of his current work. Virtually every single point is easily refuted; most are laughable, such as when he claims the FBI’s use of his 2013 interview to prosecute some spies means his March 2016 interview was truthful.

The memo does note that “the FBI also interviewed Page multiple times about his Russian intelligence contacts.” Apparently, these interviews stretch back to 2013. The memo also lets slip that there was at least one more interview with Page in March 2016, before the counterintelligence investigation began. We must assume that Page was a truthful informant since his information was used in a prosecution against Russian spies and Page himself has never been accused of lying to the FBI.

McCarthy also adheres to the GOP propaganda line that “Democrats conveniently omit is that … the Russian spies explicitly regarded him as an ‘idiot’ (and they had not even seen him on cable TV),” which I mocked in this piece at Vice.

The Republican response to the evidence that the Trump campaign named Page a foreign policy advisor around the same time the FBI interviewed him over suspected ties with Russian spies is perhaps the most pathetic thing in here. Among other things, it complains that the Schiff memo doesn’t mention that “a Russian intelligence officer called Page ‘an idiot.’”

So the latest Memoghazi arguments might best be summarized this way: After Democrats convincingly argued Trump made a suspected Russian asset a key foreign policy advisor, Republicans insisted that doesn’t matter because the suspected Russian asset was a moron.

On one point (a point I’ve been making), however, McCarthy is right.

The Schiff memo reveals, for the first time, that DOJ obtained a FISA order covering both electronic surveillance and “physical search.” Not many people understand this, but DOJ uses physical search orders not just to authorize FBI agents to search through a person’s home, but also to search through that person’s electronic devices (and cloud providers’ cloud storage). As I explained in my post on FISA and the Space-Time Continuum, using a physical search order allows the government to search far back in time.

Domestically, there are two kinds of collection: 1805, which is the collection of data in motion — an old fashioned wiretap, and 1824, which is called a “physical search” order. The government likes to hide the fact that the collection of data at rest is accomplished with an 1824 physical search order, not 1805. So an 1824 order might be used to search a closet, or it might be used to image someone’s hard drive. Most often, 1805 and 1824 get combined, but not always (the FISC released a breakdown for these last year).

Of course (as the Gartenlaub case will show), if you image someone’s hard drive, you’re going to get data from well before the time they’ve been under a FISA order, quite possibly even from before you’ve owned your computer.

In Keith Gartenlaub’s case, a physical search order was used to conduct a black bag search of his home, during which the FBI imaged and subsequently searched the saved hard drives from the last three computers Gartenlaub had used, going back a decade, which is how FBI found child porn that hadn’t been accessed in a decade.

And, as McCarthy notes (though without explaining the electronic/physical distinction), in the case of Carter Page, depending on what minimization procedures the FISC imposed, a physical search order approved on October 21, 2016 might allow FBI to search his devices for communications he had between March and September 2016, when he was a member of the Trump campaign.

What Democrats fail to mention is that the surveillance enabled the FBI to intercept not only his forward-going communications but also any stored emails and texts he might have had. Clearly, they were hoping to find a motherlode of campaign communications. Remember, Page was merely the vehicle for surveillance; the objective was to probe Trump ties to Russia.

I’ve explained that the near-certainty that NSA obtained a 705(b) order on Page for when he traveled to Moscow, London, and the Emirates in December and January would make such backwards looking surveillance even more likely.

I’m not sure that amounts to using Page as a vehicle to surveil the Trump campaign. Depending on how you count it, FISC modified somewhere between 112 and 310 applications in 2016, easily more than they ever had before (my guess is the big spike in numbers has to do with their consideration of the Riley SCOTUS precedent as they approve more orders accessing iPhones). Modifications are how minimization procedures show up in FISA counts, and imposing limits on what the government might access from Page’s devices is the kind of thing I’d expect to see out of the FISC.

Still, McCarthy doesn’t know that FBI used Page as a vehicle; the FBI could easily argue they were trying to protect Trump from the suspected spy the campaign’s non-existent vetting had invited into its midst. And he couldn’t know whether targeting Page allowed FBI to access campaign-related communications without knowing what kind of minimization procedures were imposed, if any.

A real oversight committee would make answering such a question a priority, because it’s the kind of question that goes to the core of the impact of the Page order on Trump’s campaign, but also because the question of how FISC orders permit FBI to access decades of information is a fairly important legal issue, not least in the Ninth Circuit in the Gartenlaub case.

Alas, HPSCI is not that real oversight committee, and so no one appears to be asking that question.

54 replies
  1. david sanger says:

    Would they not have had to take him into custody to get access to his physical devices, or had to do a physical search of his office or home?

    Or would this encompass getting past emails from internet providers (without his knowledge)

    • earlofhuntingdon says:

      There are other ways to obtain physical or digital access to Carter’s devices.  Presumably, one of their aims was to do it surreptitiously.

    • emptywheel says:

      It would at a minimum entail getting past emails.

      But I believe that in the last year or so FBI has gotten a way to access iPhones remotely under FISA>

  2. earlofhuntingdon says:


    We must assume that Page was a truthful informant since his information was used in a prosecution against Russian spies and Page himself has never been accused of lying to the FBI.

    seems to assume facts not in evidence.  That would be necessary at the beginning of a trial, but it’s not a fact, it’s not useful to a public understanding of these events, it’s not useful guide showing an investigator how to proceed.


  3. pseudonymous in nc says:

    McCarthy: “Clearly, they were hoping to find a motherlode of campaign communications.”

    Clearly, that’s not clear at all. (McCarthy also embarrassed himself last week by claiming that the EDVA indictments against Manafort and Gates superseded the DC district ones, but that’s an aside.)

    Something I think was overlooked from the Schiff memo:

    “As early as [redacted], a Russian intelligence officer [redacted] targeted Page for recruitment. Page showed [redacted].

    “Page remained on the radar of Russian intelligence and the FBI. In 2013, prosecutors indicted three other Russian spies…”

    To me, the redaction of the year and “remained” suggests that Page was first targeted well before 2013 and the Podobnyy approach, which isn’t a surprise given his work, but the details of that haven’t been disclosed.

    Anyway, Schiff did ask if Page had deleted any emails, and he said that he pruned his cloud email storage because he only had a gigabyte in quota, but his mail was still stored locally.

    • harpie says:

      Speaking of those EDVA indictments:
      Julia E. Ainsley‏Verified account @JuliaEAinsley [quote] Mueller’s office has filed to dismiss charges against Gates in EDVA as part of  his plea agreement 8:03 AM – 27 Feb 2018 [endquote]

      • Rayne says:

        Could explain Gates’ persistence about going on spring break to Boston with his kids…hmmm.

        Can’t even imagine the moxie it must take to be charged a serial bank/tax fraud and conspirator to defraud the US but imagine spring break travel is no big deal.

        • Avattoir says:

          “moxie”? Do you mean ‘choot spah’?

          Me, I think he came in already twisted, and somewhat oblivious (in Evil Ways); then was repeatedly bent, folded & stipulated (in lawful ways); and emerged straightened out,  and again somewhat oblivious (now all in the family ways).

        • bloopie2 says:

          Gates only happened to get caught because of the Russia aspect, no?  Remember, as an example, the IRS audits only a small percentage of returns, even the big and potentially fishy ones, each year.  I imagine there are lots and lots of money criminals freely walking the streets.  It’s us small fry who pay our fair share, that get screwed.

        • emptywheel says:

          Nah. I’m sure Mueller encouraged that one. He knows that the more attached Gates is to being a father the more likely he’ll get Gates on the stand with some credibility intact.

          • Rayne says:

            LOL you are so much more optimistic than I am on this point. I don’t think Gates has spent all that much time with his kids; he doesn’t work the kind of 8-to-5 job which would encourage a close-knit relationship.

            Maybe Mueller’s giving him a chance to spend a last happy vacation before Gates is on a very long business trip away from home. If Gates served even five years he’ll miss at least one kid’s graduation.

    • earlofhuntingdon says:

      Carter would have jumped in the pool of potential targets since he first worked in Moscow for Merrill, in 2005-2008.  Moving from potential to actual target would have taken a bit more work on Carter’s part.

      • pseudonymous in nc says:

        Yeah, that’s the time period you can tease out from between the redactions. There’s a “Page showed [redacted]” for that period, and a fully-redacted footnote 8. This was also before he got the (self-funded, non-EU fee schedule) PhD at the third attempt. Having any initial approaches pre-date that period and his shift into “academia” seems relevant.

        • emptywheel says:

          Think you’re both right. In the Vice piece I allude to the in-between stuff but not the before stuff.

    • TheraP says:

      McCarthy:  “Clearly they were hoping to find…”

      Another Principle for my/our “list.” (Not sure what to call it yet):

      What most of us would entertain as a theory or conjecture, these concern trolls, assert as a fact or truth.  (Like Trump’s “Believe me… “ Or “people are saying…” – as if that proves it!)

      Would “crying wolf” fit?  Please help!

      (Re concern trolls, I have discovered another principle in the Post itself.  Will place down thread, as it is OT to this comment.)


      • pseudonymous in nc says:

        It’s one of those irregular verbs.

        As EW noted on Twitter, the presumption that the FBI’s exploited Page’s entanglements with Russian intel to keep tabs on the campaign, as opposed to protecting it from foreign influence, says a lot about McCarthy’s priorities. He’s already preparing the ground for “are Russian active measures really worse for America than the FBI?”

  4. Willis Warren says:

    It looks like Carter Page was part of the plan to obfuscate. I find it hard to believe that he was sucked into the Trump campaign’s orbit without some prodding or planning from someone. This suggests to me that the Russian’s plans with Trump went further back than Pap or June 9, even back into the primaries or before. There’s something here that Trump is very very nervous about. Maybe it’s something that even Mueller hasn’t considered yet. But his twitter bursts would suggest a man under a LOT of stress about something he knows could be discovered. Maybe it’s just Manafort, but I suspect it’s something further back. He keeps saying “no collusion” and maybe it’s because the real ‘collusion’ happened before he announced

    • earlofhuntingdon says:

      It does seem likely that there are reasons why so many people with keen Russian interests were drawn or found their way into the orbits of Trump and his campaign.  And reasons why so many were willing to do such high-level work for no direct compensation.  Page, in particular, seemed to have few resources to make such volunteering viable.

    • orionATL says:

      you can’t fairly hang a man on so little, but from my perspective this bit of trump conversation (unconscious confession) says it all as far as someone(s) in the trump campaign having talked with the russians to acquire their willing co-operation (since they had been meddling anyway):

      “… orionATLsays:

      February 26, 2018 at 6:28 pm

      the washington post’s phillip bump has an interesting article asking the famous question “what did trump know and when did he know it?” :

      some tidbits:

      – “…Trump was interviewed by Fox News’s Jeanine Pirro. She raised the question of collusion — that is, whether elements of the Trump campaign assisted the Russian effort to influence the results of the 2016 election.

      “After 18 months, not any kind of reference to any collusion,” Pirro said.

      To which Trump replied:

      “That is true, Jeanine. You have all these committees, everybody’s looking. There is no collusion. No phone calls — I had no phone calls, no meetings, no nothing. There is no collusion. I say it all the time. Anybody that asks. There is no collusion.”…”… ”

      trump: “… There is no collusion. No phone calls — I had no phone calls,… ”

      but trump knows that somebody did make phone calls.

      • Willis Warren says:

        Yeah, I thought that was interesting.  He probably specifically avoided being on the phone.  I imagine he’s been nervous about wiretaps since his days of laundering for the Italians.

        But there’s something there.  I imagine there’s a witness he’s really worried about.  I don’t think he’s nervous  about Manafort or Hope.  I suspect his latest campaign announcement takes care of a few loose ends.  I suspect something older to be coming soon.

        • pseudonymous in nc says:

          Does formally announcing Parscale as 2020 campaign manager change the legal status of any campaign data in his personal possession? I can’t see that, only that it guarantees Beardy Assangefan, the man with the “Twitter for iPhone” tweets, an income from campaign funds if he starts encountering legal difficulties.

      • earlofhuntingdon says:

        The issue is whether there was enough to justify surveilling Page.  There seemed to have been plenty.

        On a related matter, the American government, perhaps a victim of CEO-itis, is unusual in its focus on home-runs and acting from the top.  Other governments focus on repetitive singles and doubles.  They grade the importance of a diplomatic issue not by what the CEO says, but on the breadth and depth with which her bureaucracy echoes it.

        Something mentioned only by the CEO is assumed to be for domestic political consumption and not something of diplomatic importance.  Something repeated by the bureaucracy in an orchestrated fashion from top to bottom is assumed to be an important issue that requires a prompt response.

        There are echoes of that in spy work.  Inserting a single agent or conduit would not be evidence of a serious effort.  It would be more of a monitoring function.  Kim Philby was one of many agents the Russians inserted into the British (and American) spy establishment.   Inserting multiple conduits and several agents, at different times and levels, would be evidence of a serious effort.  The effort with Trump looks serious.

        The questions, “What did the president know and when did he know it,” were originally posed in order to protect Nixon by giving him deniability, on the assumption that the crimes committed on his behalf were not known to or authorized by him.  As it turned out, he orchestrated some and knew that he benefited from others.

        The questions are valid of Trump today.  Given his limited intellect and more limited curiosity, better questions might be what did Trump do or have others do and for what purpose.

        • TheraP says:

          Yup! Trump is not self-reflective enough to necessarily do more than act on impulse and see any situation in terms of his own self-involvement or needs or resentments, etc. (what we’d feel as fear or anxiety, he likely experiences as rage and sadistic desire)

          Whatever Trump “knows” or “feels” or is “impelled by” at any point in time does not necessarily relate to past or future knowing/feeling/impulse. I’ve never figured out if he’s delusional or lying or both. But probably one of these three at any point in time.

          But I think of him as a deluded sociopath. (Sociopathy has narcissism at its core but takes it the nth degree – no moral compass, no empathy, using awareness of the emotions of others to manipulate them.)

  5. Raj says:

    I may be showing my ignorance of legal matters here.

    The whole argument about the Nunes Memo is that FBI relied extensively on Steele Dossier to get a FISA warrant on Carter Page. Why not the committee simply ask the FISA judges what prompted them to approve the FBI petition? Can’t they do that?

    • earlofhuntingdon says:

      The short answer regarding the FISA judges is No.

      It is also questionable whether the FBI relied on the Steele Dossier to get any of their FISA warrants or renewals.  It’s not necessarily the only or sole source for verifiable information contained in it.  But at some point it became a well-known or public document, which makes it easier to use without disclosing sources and methods.

  6. TheraP says:

    So many Concern Trolls out there. So few to recognize them. Marcy’s post gives rise to another in my list (after “The dog that didn’t bark.)

    So here’s a principle. Or at least yellow flag. (Could be red, but you have to decide after yellow. Could be Not Red.)

    People whose comment begins with: “I’m a lifelong [fill in the blank], but …”.

    I’m always wary of such comments. They could be very legit. But so many concern trolls try that ploy, I find.

    Let’s call it “The Greeks Bearing Gifts” Principle: Many Trojan Horses lurking…

  7. earlofhuntingdon says:

    Breaking News:  Sarah Sanders denounces Democrats for delaying Senate confirmation of presidential nominees.  Paging Mr. Garland, Paging Merrick Garland.

    I can’t decide whether Mitch McConnell or Sara Sanders should win the liar, liar, pants on fire award.  I think it’s Ms. Sanders.

    • TheraP says:

      She also declared: “We do not discuss security clearances.”

      Press Corps: Keep Asking! Point out those times when White House folk DID discuss security clearances.

      Websites can also institute a little “counter” for # of Days Jarod has lacked a security clearance. It’s close to 400 right now!

      • earlofhuntingdon says:

        The White House and West Wing are operating with over 120 interim security clearances among their staff, including Jared’s, Ivanka’s and Don McGahn’s (and Rob Porter’s).  Trump himself would never get one.  Where would Sanders stop discussing them if she ever started?

        Sarah lies more often than Donald Trump, which puts her in a class by herself.

  8. cfost says:

    Me, I think:

    There are many Manchurians in the Trump retinue, all of whom have travelled in the Russian sphere, or are easily handled by Russian operatives. Rohrabacher, Tillerson, Page, Papa, Gates, a few others. Nunes?

    The Russians are brilliantly hitching a ride on the knee-jerk party-before-country tribalism in the US. Thus, today’s misdirect by McCarthy. Or the myriad other ones in days past, by the others in the GOP. The Steele memo has been a particularly effective speed bump. And don’t forget: Hillary!

    Page, Papa and Gates all seem to be made from the same personality mold. Easily manipulable, a la Avattoir’s description above. Not surprising, then, if they have been on Russia’s radar for some time. I’m inclined to think that Trump has been under consideration since Ivana “emigrated “ to Canada in the 80s. So the combination of Manchurian mentality and the threat of very real physical harm explains any reticence to come clean.

    But let’s also not forget that this web extends to Lords and Sirs and Signores in Europe as well. And to some free-spending Turks and Azerbaijanis with oil and Russian and Iranian friends. Funny how a little bit of money will make a Soninlawofrupertmurdoch or a MP or a congressman from okmstxky say the darndest things. These days I wonder whether all pipelines lead to Baku. Or maybe to the “new and improved” House of Saud.

  9. earlofhuntingdon says:

    John Kelly is tired of being Donald’s straight man.  He apparently just downgraded Jared’s clearance.  Top secret/scif downgraded to secret, which is like moving from Olympic ski jumping to beginner moguls.  It ought to prevent him from doing any but the most menial tasks his father-in-law has given him to do to keep his White House functioning.   I guess Jared will have to figure out another way to refinance 666 Fifth Avenue.  No harm, he’s worked on it for a year with no results anyway.

    If Kelly means it, and isn’t doing this as a pretext to leave the WH, he needs to make similar decisions about Ivanka and Don McGahn, and about 100 other West Wingers and WH staffers.  What will Donald do with his executive time now?

    • bmaz says:

      Reportedly he did it for all similar cases. Though hard to believe there won’t be item by item exceptions made.

      • earlofhuntingdon says:

        The Politico article does seem a tad inconsistent.  The clearance downgrade was issued last Friday.  The memo issuing the downgrade was not signed by Kelly.  Hiding behind the passive voice, the article doesn’t say who signed it, if anyone, or even who issued it.

        Kushner’s lawyer, who has zero to do with clearances, claims Kushner not only did more than what was expected of him in the clearance process, but that his downgrade,  “would not affect Mr. Kushner’s ability to continue to do the very important work he has been assigned by the president.”  That’s like Mickey Mouse telling me I’ve won the lottery.  I probably shouldn’t spend it until I hear from the lottery commission.

        The issue isn’t whether Jared is “able” to be a top presidential aide.  That’s debatable but an aside.  The issue is whether Jared will be allowed to continue to act as a top aide to the president.

        If Kelly means what he says, but wouldn’t put under his signature, Jared should Not act as a top aide.  He can’t do that without reading and evaluating what he can no longer see.  The blind leading the blind is not a reliable way to avoid being run over on the motorway.

        Strangely, Kelly publicly said last week, “that Kushner would be able to continue his work in the White House unfettered.”  How to parse that?  Kelly gutted his own clearance process?  Trump granted a waiver we haven’t heard about.  Trump pixie dusted a waiver, because he can do whatever he wants without writing it down or making it public.  Kelly was lying.  Time might tell.

        More strangely still, the Politico’s Eliana Johnson and Andrew Restuccia write (emphasis mine):

        It was unclear whether Kushner would need access to top secret information to continue performing those duties — and whether Kelly was personally prepared to enact a policy that could be perceived as a jab at the president’s son-in-law.

        The second observation is a fair question, although they should have included Ivanka and McGahn.  The first is not.  Kushner goddamn well needs higher than “secret” clearance to perform his broad but undefined duties.  They include reading whatever comes across the president’s desk, and traveling the world doing whatever the Don asks him to do, not to mention chatting with his wife about her doing the same thing with no more clearance than her husband.  Maybe they should ask the White House counsel what to do.

    • harpie says:

      Matthew Miller has this reaction [emphasis added]:
      [quote] Not much you can do at a senior level with a secret clearance. Also, it is so strange that a WH staffer is consistently being represented in these stories by his criminal defense lawyer instead of the WH press office. [end quote]

    • cfost says:

      Shocker. But maybe Kelly is to be the fall guy and get himself fired, which would keep Donald in good graces with J&I. Otherwise, if J&I lose scif for real, it is time to seek cover, ‘cause the WH war then begins.

  10. Michael Keenan says:

    I am amused that Sessions has called for a FISA abuse investigation. Like to end run Nunes dribble out drama and let the public get down to business. What of the FISA was for business and what if any was used for campaign. Only full disclosure seems like that is how those issues can be settled in front of the public. Redaction used to avoid method and life. Lets have at it and not delay.

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