FISC Reveals DOJ Has Withdrawn Probable Cause Assertion for Two of Carter Page Applications

The FISA Court just declassified an order — issued on January 7 — revealing that along with the previously released December 9 order listing problems with the Carter Page applications, DOJ also reassessed its previous probable cause assessment.

DOJ assesses that with respect to the applications in Docket Number 17-375 and 17-679, “if not earlier, there was insufficient predication to establish probable cause to believe that [Carter] Page was acting as an agent of a foreign power.”


The Court understands the government to have concluded, in view of the material misstatements and omissions, that the Court’s authorizations in Docket Numbers 17-375 and 17-679 were not valid. The government apparently does not take a position on the validity of the authorizations in Docket Numbers 16-1182 and 17-52, but intends to sequester information acquired pursuant to those dockets in the same manner as information acquired pursuant to the subsequent dockets.

The function of this January 7 order is to demand that FBI follow up on a previous agreement to “sequester all collection the FBI acquired pursuant to the Court’s authorizations in the above-listed four docket numbers targeting [Carter] Page pending further review of the OIG Report and the outcome of related investigations and any litigation,” to explain how it is doing so, how it has chased down all information collected pursuant to the Page orders, and why it needs to keep the data at all.

The reason it needs to keep the data, incidentally, is in case it is sued or John Durham decides to prosecute someone (including Kevin Clinesmith, who altered an email that was used as back-up to the final renewal application) or Page decides to sue. Indeed, one of the most unprecedented aspects of this order is that the docket numbers have been declassified, which will make FOIAing the records far easier.

Which is probably what the only substantive redaction remaining in the order pertains to: the possibility that someone will be held liable under FISA for illegal surveillance.

A lot of people are assuming that DOJ took this stance only because Bill Barr wanted to prove that Trump was illegally wiretapped (which would only be true if he was in direct contact with Page, which everyone has denied). That’s certainly possible!

But it’s quite possible that DOJ and FBI feel the need to be proactive on this point and FISC — particularly given the letters it has received from Congress — feels the need to look stern. Moreover, it is in everyone’s interest for DOJ to withdraw at least the last application (the one influenced by Clinesmith’s actions). It’s an important precedent, and there’s no reason Carter Page’s personal data should be floating around the FBI after discovering he was improperly surveilled. This doesn’t mean the FBI didn’t have reason to investigate Page. In a March 23, 2017 interview, after all, Carter Page was quite clear he knew he was being recruited by Russian intelligence officers and he believed the more immaterial non-public information he gives them, the better off we are.

But, first of all, he wasn’t hiding his happiness to share information with Russian spies, meaning he wasn’t acting in the clandestine matter that would merit a FISA order. And by April 2017, it was pretty clear that the Russians had lost all interest in recruiting Page.

In any case, FISC’s demand for what the government is doing with the data is not unusual. Similar things have happened virtually every other time the government did something improper.

There’s one more important lesson, though: Even from the start, people raised questions about whether the applications targeting Page were prudential. By the third application — the first one being withdrawn — there were not only real questions about whether it would yield anything more, but whether Page was central enough to their investigation to want to surveil him. Had the FBI simply not pursued surveillance it questioned whether it really needed, the worst revelations of the IG Report would have been avoided.

So one of the lessons of this whole fiasco is that the FBI would benefit from giving greater consideration about whether its most intrusive methods are necessary.

20 replies
  1. Joe F says:

    It is passing strange that the FBI is forced to tuck its tail between its legs in a case where doing so would have the maximum beneficial effect for those who incessantly shit on the law and the courts. Principles are fine but they need to be applied uniformly. I’d love for someone to give this degree of scrutiny to a random sample of FISA applications.

  2. Joe F says:

    Why, only in the last few days, the Administration has been ordered not to deport individuals, but has blithely done so anyway. So much for the “rule of law.”

  3. Ken Haylock says:

    I’m just wondering, if he tells the FBI he’s happily sharing scads of non-public information with Russian spies in plain sight but scouts honour none of it is anything to scare the horses, did they not have a legitimate interest in spying on him to find out whether the information he is sharing is, either by design or accident, not as harmless as he says it is? I know that’s not what they claimed, but had they done so for at least one of the later applications, would they have been OK for that one?

  4. bmaz says:

    What a joke. The DOJ did not need to do this. They really are scared of being sued. And overly desirous of pimping the right wing crazy line. Pathetic. Adding, this may make legal problems worse, as they no longer have the shield of probable cause findings.

    • earlofhuntingdon says:

      It is passing strange for an administration and an AG that refuses to acknowledge the simplest of mistakes – Sharpie Gate, for example – let alone wrongdoing – deporting people despite being ordered by a federal court not to do so.

      It seems unlikely that Bill Barr is interested in legal reform or better compliance with the law. Neither is in his CV. But as a once and future AG and former telecoms company GC, he knows potential legal liability when he sees it.

      • P J Evans says:

        I wonder if Barr sees himself as the Power Behind the Throne, the person who can make or break lower officials and hinder the ruler if he starts getting too big for his already-capacious britches.

      • bmaz says:

        Exactly. The only person that can sue them is Page. He is goofy and cannot sue the federal government under §1983, he could only bring a Bivens suit, and they are basically impossible to win, and especially so if there is classified information in play. Maybe just wanting to throw bones at the right wing howlers.

  5. orionATL says:

    how timely of the fisa court. how very, very timely.

    the court (was it dear rosemary on her way out?) just released an assertion by the dept of justice, which happens to be run by attorney general wm. barr, our president’s principle legal defender in government, that there was no reason for the doj/fbi to have ever been concerned about carter page’s multiple contacts with the russian national with ties to putin despite the evident fact in hindsight that the president and his campaign colluded with the russian government and members of putin’s rich-guy paramilitary to win the american presidency.

    isn’t it wonderful that, just when an extraordinarily mendacious american president who willfully breaks laws and political customs for his personal benefit is being held to a congressional public accounting by an impeachment trial, doj officials, who have never given a rat’s as about this 1978 law’s ability to intrude surveillance on american lives, suddenly decide to do a mea culpa.

    surely this was never intended as a distraction from the impeachment trial in the senate? surely.

    and by the way, one of the fundamental statements in ig horowitz’s report is that he would not make any judgement on the appropriateness of the fbi’s decision to undertake a counterintelligence investigation. and carter was part of that counter-intelligence investigation. so this would seem to be a.g. barr’s effort at disrupting the trial.

    this is just the doj pissing in its pants while licking trump’s boots.

    • orionATL says:

      the central problem for fairness in american law with regard to the fis court is not the carter page application, one of probably hundreds of doj misfires since 1978 which merely presented an opportunity for defenders of a president engaged in criminal and collusive behavior to distract concerned citizens watching the impeachment trial and for our mainstream media to practice fair-and- balanced.

      the central problem is the existence of the court and in particular, the fact that it does not have to release information to defense attorneys or the public when the time comes to know who did what to whom. thus the court itself and its rules presents the central problem. was that, noted in the court’s release of the doj/fbi mea culpa? my understanding is that defendants trying to counter government prosecutors’ arguments cannot get access to thei surveillance data (or from dea, or nsa, or cia).

      but guess which single, unique defendant in this country – the only one out of 320 mill – can get ready access to that data? why it’s our president, who illegally withheld congressionally mandated military aid money from ukraine.

      the excessive and excessively self-protecting powers of the president, which the congress has permitted to explode in the last 60 years, is one of the two most dangerous realities threatening the american democracy. there is every reason to believe that hyper-wealthy corporate scions like trump, bloomberg or strayer will turn our government into a perpetual plutocracy with an inevitable autocratic tenor.

  6. Vicks says:

    While we were living through what many considered shameful antics by Nunes, Page & Co. I couldn’t help but wonder what if this was actually about team Trump’s desire to disappear whatever was picked up the surveillance.
    When I read this odd “press release” and saw that it included an announcement about sequestering (forever) what was picked up, my first response was “mission accomplished!”
    I freely admit my bias, these people lost any benefit of the doubt long ago, and I don’t think I am wrong to continue to question their every move.
    I also know that the FBI can share my suspicions, but we all must fight to maintain the line that protects us all from abuse by those in power.
    To clarify;
    If anything of value was actually picked up during Page’s surveillance, that information would have gone on the applications for extensions and the FBI wouldn’t be in this jam?
    How does it work if there is useful information but it doesn’t implicate Page but others?
    A gossipy chat with Steve Bannon for example?
    While I’m sure it would be of interest (and harmful to team Trump) would that justify monitoring Page?

    • orionATL says:

      if you read between the lines in news reports and analyses involving the actions of carter page and george papapoupolos you might have come away with the thought that they certainly seemed to have absorbed a lot of campaign gossip during their labors for the campaign and even afterwards.

      in fact had i been interrogating or doing discovery on either one, I would have cast a wide net involving not just specific interactions with russian operatives, but what they had picked up about trump campaign activities from other campaigners at all levels of command.

      even though p&p have been transformed from energetic, self-activating trump campaign operatives into the trump defense teams’ poster boys for fbi fis court sneakiness and interference in domestic politics, their engagement was surely not without their having an understanding of the cheating game the trump team was playing.

    • orionATL says:

      a comment i made made in response to vicks maybe somewhere around 10:30 to 10:45 disappeared due to “moderation”, aka, emptywheel surveillance. it seemed uncontroversial enough. wha’ hoppened?

  7. bmaz says:

    Heh, …I believe we have discovered the only reason why DOJ would affirmatively withdraw the claim of probable cause for the last two Page warrants. You are watching that sole reason right now with Sekulow’s horse manure in the Senate. It is a lie. Both warrants would have withstood a Franks inspection. This is Bill Barr bullshit.

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