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John Durham Won’t Charge Any of Trump’s Favorite Villains

On Friday, WSJ had an article that might have been titled, “John Durham won’t charge any of Donald Trump’s favorite villains.” It reported that Durham is still considering charges against people outside of government and “lower-level FBI employees.”

Mr. Durham has been examining potential criminal charges against several lower-level Federal Bureau of Investigation employees, and people who aren’t in government, according to people familiar with the matter.

But it doesn’t note that, even if Durham does charge those involved in the dossier, it will still mean that many of Trump’s claims about the Russian investigation were investigated for longer than Mueller took, only to fall short of the crimes Trump claimed had happened.

Jim Comey was the FBI Director, not a low-level employee. In spite of Durham’s effort to prove that Comey leaked details of Trump’s efforts to protect Mike Flynn to get a Special Counsel appointed, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that Comey broke the law.

Andrew McCabe was the FBI Deputy Director, not a low-level employee. In spite of Durham’s apparent effort to insinuate that McCabe micromanaged the Russian investigation, pushing investigative steps FBI Agents didn’t support, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that McCabe broke the law.

Bill Priestap was the Assistant Director for Counterintelligence, not a low-level employee. In spite of Durham’s effort to interpret Priestap’s notes as proof that the FBI set up Mike Flynn, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that Priestap broke the law.

Peter Strzok was the Deputy Assistant Director when he opened Crossfire Hurricane, not a low-level employee. In spite of Durham’s extended efforts to suggest that Strzok sustained an investigation into Donald Trump out of some kind of animus or perhaps compensation for his role in Hillary Clinton’s defeat, in spite of Durham’s seeming efforts to suggest that Strzok pushed others to obtain legal process he refused to approve earlier in the investigation, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that Strzok broke the law.

Lisa Page was the Counselor to the Deputy Director, not a low-level employee. In spite of Durham’s efforts to suggest Page had some role in the investigation that DOJ IG already said she didn’t, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that Lisa Page broke the law.

Durham has interviewed few if any of these senior people, who’ve been targeted for years. Without even hearing their side, apparently, Durham has decided they’re not the villains Trump made them out to be.

But Trump’s chief villains aren’t the only targets that — if this report is correct — will not be charged.

The WSJ notes that Durham won’t charge anyone for concluding that Russia not only wanted to defeat Hillary, but affirmatively wanted Trump in power.

Beyond the role of outside tipsters, Mr. Durham’s investigation examined how the FBI first came to open the investigation, as well as a separate 2017 U.S. intelligence report that concluded Moscow interfered in the presidential election in part to help then-candidate Trump.

Mr. Durham’s team isn’t expected to bring any criminal charges in connection with that intelligence assessment, some of the people said.

So John Brennan won’t be getting charged either, in spite of calls for that to happen.

Then there are all the other hoaxes Republicans invented: Durham will not charge anyone for spying on Trump before the opening of the investigation, because it didn’t happen. Durham will not charge the FBI or CIA for setting Joseph Mifsud up to entrap George Papadopoulos, because it didn’t happen.

In spite of the seeming confirmation that four years of insinuations about these people were wrong, the right wing has responded to the seeming news that Peter Strzok won’t be charged with delight.

High Gaslighter Catherine Herridge posted the same partially unsealed footnote (footnote 350 discussed in this post) twice as well as a passage about what the FBI had learned by September 2017, three months after the last FISA order targeting Carter Page.

Jonathan Turley (who ignores the WSJ description that any FBI targets are low-level) claims that Durham’s current focus could “implicate some of the most powerful figures in politics” in his final report, while getting a slew of details (about Bruce and Nellie Ohr, especially) wrong.

The report in The Wall Street Journal said Durham is presenting evidence against FBI agents and possibly others in the use of false information or tips at the start of the Russia investigation in 2016. Those “others” could include a virtual who’s who of Washington politics, and even if they are not indicted, Durham could implicate some of the most powerful figures in politics in his final report, expected in the coming months.

[snip]

This cross-pollination between the campaign and the Justice Department was evident in the strange role of Bruce Ohr, a senior Justice official who was later demoted for concealing his meetings with people pushing the Steele dossier; his wife, Nellie Ohr, worked for Fusion GPS as a researcher on Trump’s purported connections to Russia. Justice Department Inspector General Michael Horowitz subsequently found that Bruce Ohr acted improperly and committed “consequential errors in judgment.”

[snip]

Durham also is reportedly looking into information concerning Alfa Bank, a privately owned commercial bank in Russia. That information led to possible access to the Trump campaign server. The Alfa Bank controversy is likely to make a number of powerful people particularly uneasy. Clinton campaign-linked figures such as Fusion GPS co-founder Glenn Simpson allegedly pushed the debunked claim that the Trump campaign had a server linked directly to the bank, which in turn was linked to Vladimir Putin and his cronies. The Alfa Bank conspiracy reportedly was pitched to the Justice Department, including in contacts with Bruce Ohr.

Glenn Greenwald, after spending years mocking the prosecutions of Trump’s Campaign and Deputy Campaign Manager, his personal lawyer, his National Security Advisor, a foreign policy advisor, and his rat-fucker — four for covering up what happened in 2016 — and after pushing the Hunter Biden laptop allegedly funneled to a different Trump personal lawyer who is currently being investigated for influence peddling with Russian assets — speaks gleefully of “already one guilty plea: seems like more criminal charges are coming.”

The pseudonymous TechnoFog[gy] highlights the claims of a Russian, Olga Galkina, who — if the dossier was indeed filled with disinformation (and I believe it was) — was the source for much of it, while complaining, in the same breath as they magnify Galkina’s claims, that Igor Danchenko might not be aware that those like Galkina who fed him garbage were doing so for Russian intelligence.

More and more, Durham appears to be chasing what an elaborate lawfare effort from the Alfa Bank oligarchs are throwing out. The effort, like the dossier itself, is transparently problematic, particularly given that FBI debunked it early. The dossier had little to do with the investigation of anyone but Carter Page; the Alfa Bank allegations were entirely a distraction from the investigation. If Durham wants to stake his report on that, it has the potential of making it an easily discredited piece of Russian propaganda.

A focus on the disinformation in the dossier and the way that some ways the Alfa Bank claim was packaged up has a real potential to backfire for Durham, because it can only shine a light on how Russia obfuscated its efforts to get Trump elected in 2016 with disinformation about efforts to get Trump elected.

The Viral Twitter Thread in Which Darrell Cooper Confesses Republicans Were Pawns of Russian Disinformation

For some reason, this Twitter thread by a guy named Darrell Cooper, purporting to explain why Trumpsters came to attack the US Capitol, went viral.

I resisted several requests to fact check it. Now, after it has gone even more viral (including on Tucker Carlson’s show), Phil Bump has done a good fact check. As Bump notes, while Cooper accurately lays out that Trump supporters have lost confidence in institutions, Cooper offers an explanation that relies on a series of false claims so as to put the blame on Democrats.

It is indisputably the case that Trump supporters accept claims about election fraud in part because of their diminished confidence in institutions such as government and the media. What is subject to dispute, though, is the cause of that lack of confidence. While Cooper suggests that it’s emergent, it isn’t. While Cooper argues that it’s a function of investigations into Trump, it’s actually a function of partisan responses — largely but not entirely on the right — driven by Trump himself. And, most important, what Cooper presents as the indisputable facts undergirding his argument are often misleading or false and a function of partisan defenses of Trump that are common in conservative media.

Bump then debunks Cooper’s claims that:

  • The FBI spied on the Trump campaign using evidence manufactured by the Clinton campaign
  • We now know that all involved knew it was fake from Day 1 (see: Brennan’s July 2016 memo, etc)
  • The Steele dossier was the sole evidence used to justify spying on the Trump campaign
  • The entire Russian investigation stemmed from the Page investigation and not George Papadopoulos and Paul Manafort
  • Protests planned in case Trump overturned the election were a plan for violence
  • There were legitimate concerns about the election

Bump is absolutely right that Cooper makes false claims to be able to blame Democrats and Bump’s fact checks are sound (and really exhausting that they’re still required). Bump is likewise correct that a false claim about the Steele dossier is central to Cooper’s story.

I’d add that Cooper doesn’t mention that his claims about the problems with the Steele dossier matter primarily to the third and fourth FISA orders against Carter Page, and so happened under the Trump Administration and in three cases, were signed by people Trump either kept (in the case of Jim Comey) or put in place (in the case of Dana Boente and Rod Rosenstein).

But according to Cooper’s logic, if the dossier hadn’t existed, a series of events that followed wouldn’t have happened, and so Republicans wouldn’t have attacked their own government. Thus far it’s a typical right wing attempt to disclaim responsibility for their own actions.

What Bump doesn’t mention, though, is that it is now almost universally agreed upon on among Trumpsters that the dossier was the product of Russian disinformation. Lindsey Graham — who conducted an investigation into the circumstances of the Carter Page FISA — thinks it is. Chuck Grassley — who led the investigation into the dossier — thinks it is. Ron Johnson — who also made a show of investigating these things — thinks it is. Chuck Ross — the chief scribe of the dossier on the right — thinks it is. The high gaslighter Catherine Herridge thinks it is. Fox News and all their favorite sources think it is. WSJ’s editorial page thinks it is. None of these people have thought through the implications of that, but they do all appear to believe that the Russians fed disinformation through the Democratic-funded dossier to the FBI.

So, even setting aside the implications of the possibility that the dossier was Russian disinformation, according to Cooper’s narrative, Trump’s supporters wouldn’t have attacked their own government if it weren’t for Russian disinformation that set off a chain of events that led them to lose confidence in American institutions.

But consider the implications of the dossier as disinformation, implications that are evident largely thanks to sources that right wing figures have made great effort to liberate.

In response to a Trey Gowdy question at an interview by a GOP-led investigation into the dossier, Bruce Ohr explained that on July 30, 2016, Christopher Steele shared three pieces of information with him (later in his interview he would add a fourth, Russian doping): Two details from what we now know to be the dossier, as well as a third — that Oleg Deripaska’s attorney had information about Paul Manafort stealing money from Deripaska.

And then the third item he mentioned was that Paul Hauser, who was an attorney working for Oleg Deripaska, had information about Paul Manafort, that Paul Manafort had entered into some kind of business deal with Oleg Deripaska, had stolen a large amount of money from Oleg Deripaska, and that Paul Hauser was trying to gather information that would show that, you know, or give more detail about what Paul Manafort had done with respect to Deripaska.

Byron York provided more background on Steele’s efforts to share information from Deripaska with Bruce Ohr. The IG Report done in response to GOP requests provided still more. For example, the IG Report revealed that Steele had set up a meeting between Ohr and Oligarch 1, whom we know to be Deripaska, in September 2015 (these claims are consistent with the heavily redacted Ohr 302s liberated by Judicial Watch).

Handling Agent 1 told the OIG that Steele facilitated meetings in a European city that included Handling Agent 1, Ohr, an attorney of Russian Oligarch 1, and a representative of another Russian oligarch. 209 Russian Oligarch 1 subsequently met with Ohr as well as other representatives of the U.S. government at a different location.

[snip]

Ohr and Steele also communicated frequently over the years regarding Russian Oligarch 1, including in 2016 during the time period before and after Steele was closed as an FBI CHS.409 Steele told us his communications with Ohr concerning Russian Oligarch 1 were the result of an outreach effort started in 2014 with Ohr and Handling Agent 1, to approach oligarchs about cooperating with the U.S. government. Ohr confirmed that he and Handling Agent 1 asked Steele to contact Russian oligarchs for this purpose. This effort resulted in Ohr meeting with Russian Oligarch 1 and an FBI agent in September 2015.

The IG Report also revealed that in September 23 (around the same time Deripaska was interviewed by the FBI), Steele passed on a claim that Deripaska wanted to share information about Manafort.

On September 23, 2016, at Steele’s request, Steele met with Ohr in Washington, D.C. Ohr told us they spoke about various topics related to Russia, including information regarding Russian Oligarch 1 ‘s willingness to talk with the U.S. government about Manafort.

Far more consistently than using Ohr as a channel for dossier reports (and for a longer period of time), Steele used his ties with Ohr to advance Oleg Deripaska’s interests. And for the entirety of the time that Steele was feeding the FBI dossier reports, that meant Steele was feeding Ohr claims that not only presented Deripaska as a trustworthy actor, but did so in part by promising Deripaska’s cooperation in a criminal investigation of Paul Manafort. The FBI (and Mueller after that) didn’t investigate Manafort primarily for the stuff Deripaska was trying to feed the FBI, but Deripaska was making great efforts to ensure that the FBI would investigate Manafort. In the aftermath of all this, Trump and Manafort blamed Democrats for all this, but in fact, Deripaska was at least as responsible.

According to footnotes that Graham, Grassley, and Johnson had declassified, before Deripaska first started offering to help DOJ criminally investigate Manafort — before that July 30, 2016 meeting between Steele and Ohr — a Deripaska associate likely learned about the dossier project (the same declassification revealed that two Russian intelligence officers had learned of the project before that meeting which, given the belief that several of Deripaska’s associates were Russian intelligence officers, may be the same report).

Ohr told the OIG that, based on information that Steele told him about Russian Oligarch 1, such as when Russian Oligarch 1 would be visiting the United States or applying for a visa, and based on Steele at times seeming to be speaking on Russian Oligarch l’s behalf, Ohr said he had the impression that Russian Oligarch 1 was a client of Steele. 210 We asked Steele about whether he had a relationship with Russian Oligarch 1. Steele stated that he did not have a relationship and indicated that he had met Russian Oligarch 1 one time. He explained that he worked for Russian Oligarch l’s attorney on litigation matters that involved Russian Oligarch 1 but that he could not provide “specifics” about them for confidentiality reasons. Steele stated that Russian Oligarch 1 had no influence on the substance of his election reporting and no contact with any of his sources. He also stated that he was not aware of any information indicating that Russian Oligarch 1 knew of his investigation relating to the 2016 U.S. elections. 211

210 As we discuss in Chapter Six, members of the Crossfire Hurricane team were unaware of Steele’s connections to Russian Oligarch 1. [redacted]

211 Sensitive source reporting from June 2017 indicated that a [person affiliated] to Russian Oligarch 1 was [possibly aware] of Steele’s election investigation as of early July 2016.

In fact, the IG Report completed in response to Republicans’ requests makes it clear: if the dossier was disinformation, that disinformation most likely involved Oleg Deripaska, with whom Manafort was using his position on the Trump campaign in an attempt to patch up financial and legal relations.

Priestap told us that the FBI “didn’t have any indication whatsoever” by May 2017 that the Russians were running a disinformation campaign through the Steele election reporting. Priestap explained, however, that if the Russians, in fact, were attempting to funnel disinformation through Steele to the FBI using Russian Oligarch 1, he did not understand the goal. Priestap told us that

what he has tried to explain to anybody who will listen is if that’s the theory [that Russian Oligarch 1 ran a disinformation campaign through [Steele] to the FBI], then I’m struggling with what the goal was. So, because, obviously, what [Steele] reported was not helpful, you could argue, to then [candidate] Trump. And if you guys recall, nobody thought then candidate Trump was going to win the election. Why the Russians, and [Russian Oligarch 1] is supposed to be close, very close to the Kremlin, why the Russians would try to denigrate an opponent that the intel community later said they were in favor of who didn’t really have a chance at winning, I’m struggling, with, when you know the Russians, and this I know from my Intelligence Community work: they favored Trump, they’re trying to denigrate Clinton, and they wanted to sow chaos. I don’t know why you’d run a disinformation campaign to denigrate Trump on the side. [brackets original]

Of course, for months before Deripaska first started offering (through Steele) to cooperate with the FBI against Manafort, Manafort had been trying to exploit his position on Trump’s campaign to ingratiate himself with (among others) Deripaska, in part in hopes to paper over precisely the financial dispute that Deripaska was, through Steele, trying to use to increase Manafort’s legal exposure. Weeks before the July 30 Steele-Ohr meeting, for example, Manafort had offered to brief Deripaska on the Trump campaign.

Immediately upon joining the Campaign, Manafort directed Gates to prepare for his review separate memoranda addressed to Deripaska, Akhmetov, Serhiy Lyovochkin, and Boris Kolesnikov,879 the last three being Ukrainian oligarchs who were senior Opposition Bloc officials. 880 The memoranda described Manafort’ s appointment to the Trump Campaign and indicated his willingness to consult on Ukrainian politics in the future. On March 30, 2016, Gates emailed the memoranda and a press release announcing Manafort’ s appointment to Kilimnik for translation and dissemination.881 Manafort later followed up with Kilimnik to ensure his messages had been delivered, emailing on April 11, 2016 to ask whether Kilimnik had shown “our friends” the media coverage of his new role. 882 Kilimnik replied, “Absolutely. Every article.” Manafort further asked: “How do we use to get whole. Has Ovd [Oleg Vladimirovich Deripaska] operation seen?” Kilimnik wrote back the same day, “Yes, I have been sending everything to Victor [Boyarkin, Deripaska’s deputy], who has been forwarding the coverage directly to OVD.”883

[snip]

The Office also obtained contemporaneous emails that shed light on the purpose of the communications with Deripaska and that are consistent with Gates’s account. For example, in response to a July 7, 20 I 6, email from a Ukrainian reporter about Manafort’ s failed Deripaskabacked investment, Manafort asked Kilimnik whether there had been any movement on “this issue with our friend.”897 Gates stated that “our friend” likely referred to Deripaska,898 and Manafort told the Office that the “issue” (and “our biggest interest,” as stated below) was a solution to the Deripaska-Pericles issue.899 Kilimnik replied:

I am carefully optimistic on the question of our biggest interest. Our friend [Boyarkin] said there is lately significantly more attention to the campaign in his boss’ [Deripaska’s] mind, and he will be most likely looking for ways to reach out to you pretty soon, understanding all the time sensitivity. I am more than sure that it will be resolved and we will get back to the original relationship with V. ‘s boss [Deripaska].900

Eight minutes later, Manafort replied that Kilimnik should tell Boyarkin’s “boss,” a reference to Deripaska, “that if he needs private briefings we can accommodate.”901

That is, per both Rick Gates and Manafort himself, how Manafort came to meet with Deripaska aide Konstantin Kilimnik on August 2, just three days after Deripaska tried to increase Manafort’s legal exposure via Steele. That’s how — and why! — he provided a briefing on campaign strategy amid a discussion of resolving the debt to Deripaska (as well as a plan to carve up Ukraine), as described by the SSCI Report completed under Chairs Richard Burr and Marco Rubio.

(U) At the meeting, Manafort walked Kilimnik through the internal polling data from Fabrizio in detail.453 According to Gates, Kilimnik wanted to know how Trump could win.454 Manafort explained his strategy in the battleground states and told Kilimnik about polls that identified voter bases in blue-collar, democratic-leaning states which Trump could swing.455 Manafort said these voters could be reached by Trump on issues like economics, but the Campaign needed to implement a ground game.456 Gates recalled that Manafort further discussed the “battleground” states of Michigan, Wisconsin, Pennsylvania, and Minnesota.457 (U) The Committee sought to determine with specificity what information Kilimnik actually gleaned from Manafort on August 2, 2016. Information suggests Kilimnik understood that some of the polling data showed that Clinton’s negatives were particularly high; that Manafort’s plan for victory called for focusing on Clinton’s negatives as much as possible; and that given Clinton’s high negatives, there was a chance that Trump could win. (U) Patten’s debriefing with the SCO provides the most granular account of what information Kilimnik obtained at the August 2, 2016 meeting:

Kilimnik told Patten that at the New York cigar bar meeting, Manafort stated that they have a plan to beat Hillary Clinton which included Manafort bringing discipline and an organized strategy to the campaign. Moreover, because Clinton’s negatives were so low [sic]-if they could focus on her negatives they could win the election. Manafort discussed the Fabrizio internal Trump polling data with Kilimnik, and explained that Fabrizio ‘s polling numbers showed that the Clinton negatives, referred to as a ‘therm poll,’ were high. Thus, based on this polling there was a chance Trump could win. 458

(U) Patten relayed similar information to the Committee. In particular, he told the Committee that Kilimnik mentioned Manafort’s belief that “because or Clinton’s high negatives, there was a chance, only because her negatives were so astronomically high, that it was possible . to win.”459

[snip]

(U) In addition to Campaign strategy involving polling data and the Ukraine plan, Manafort and Kilimnik also discussed two financial disputes and debts at the meeting. (U) The first dispute involved Deripaska and Pericles.477 Gates recalled that Kilimnik relayed at the meeting that Deripaska’s lawsuit ha’d been dismissed.478 Gates also recalled that Kilimnik was trying to obtain documentation showing the dismissal.479

In short, even without confirmation the dossier was disinformation, it’s clear that Deripaska was playing a vicious double game, using Steele as a channel to increase Manafort’s legal exposure even while using that legal exposure as a way to get an inside track to Trump’s campaign. But if the dossier is disinformation (as Trumpsters seem to universally agree now), it might help explain the dodgy content of the dossier in ways that aren’t important to this post (for example, it might explain why Steele’s sources falsely claimed that Carter Page was Manafort’s liaison with Russia in the same days when Kilimnik flew to the US to offer a pitch to Manafort on Ukraine involving senior Russians).

Now consider one more detail, given that Trumpsters seem to universally agree the dossier was disinformation and the IG Report’s suggestion that the most likely architect of that disinformation was Oleg Deripaska.

On January 8, 2017, Manafort flew to Madrid to meet with a different Deripaska deputy, Georgiy Oganov. As the SSCI Report explained, while Manafort told investigators they discussed the Pericles lawsuit — the same lawsuit Deripaska was using to make Manafort legally insecure — they also discussed stuff that remains almost entirely redacted, but stuff that includes recreating their “old friendship” which (also per the SSCI Report) involved Manafort conducting influence campaigns for Deripaska.

On January 8, 2017, hours after returning to the United States from a trip to ~ to Madrid, Spain.598 Manafort met with Oganov in Madrid during what he claimed was a one-hour breakfast meeting.599 Manafort told the FBI that, at the meeting, Oganov told him that he needed to meet with Deripaska in person to resolve the Pericles matter.600 Manafort agreed but said he would not travel to Ukraine or Russia for the meeting.601

(U) Manafort provided false and misleading information about the purpose, content, and follow-up to the meeting with Oganov to both the Committee and the SCO. In particular, Manafort told the Committee in a written response through counsel that he attended a meeting on or around January 17, 2017, in Madrid with “Georgy Organov.”602 The written response claimed that the meeting was “regarding a private litigation matter involving Oleg Deripaska.”603 Despite admitting his attendance at the meeting to the Committee in May 2017, Manafort initially denied attending the meeting in his interviews with the SCO in the fall of 2018.604 He eventually admitted to attending the meeting with Oganov, and then repeated what he described in his letter to the Committee-that the meeting had been arranged by his lawyers and concerned only the Pericles lawsuit.605

Manafort’s claims about the meeting were false. As the above messages show, the meeting was not designed to be about Pericles, but was also about recreating the “old friendship” and “global politics.”

Manafort returned to the US on January 12 and, three days later, tried to set up an in-person meeting with KT McFarland.

She checked with Mike Flynn, who told her that the “perception” of meeting with Manafort, “especially now” (this was after Flynn’s own back channels with Russia were beginning to become public) would not be good, so to hold off until they were in the hot seats.

Manafort didn’t meet with Trump’s national security team, but around the same time, per reporting from Ken Vogel, he reached out to Reince Priebus and suggested the errors in the dossier not only discredited it, but also the FBI investigation.

It was about a week before Trump’s inauguration, and Manafort wanted to brief Trump’s team on alleged inaccuracies in a recently released dossier of memos written by a former British spy for Trump’s opponents that alleged compromising ties among Russia, Trump and Trump’s associates, including Manafort.

“On the day that the dossier came out in the press, Paul called Reince, as a responsible ally of the president would do, and said this story about me is garbage, and a bunch of the other stuff in there seems implausible,” said a person close to Manafort.

[snip]

According to a GOP operative familiar with Manafort’s conversation with Priebus, Manafort suggested the errors in the dossier discredited it, as well as the FBI investigation, since the bureau had reached a tentative (but later aborted) agreement to pay the former British spy to continue his research and had briefed both Trump and then-President Barack Obama on the dossier.

Manafort told Priebus that the dossier was tainted by inaccuracies and by the motivations of the people who initiated it, whom he alleged were Democratic activists and donors working in cahoots with Ukrainian government officials, according to the operative. [my emphasis]

According to Rick Gates, at some point Manafort asked Kilimnik to obtain more information from his sources about it, including from Deripaska.

Since that suggestion to Priebus — which he made days after his return from a meeting with Deripaska’s associate — Trump has pursued precisely the strategy laid out by Manafort, using the errors in the dossier — the dossier that all Trumpsters now seem to believe was filled with errors by Russian intelligence and possibly by Deripaska associates — to discredit it and with it, the Russian investigation.

That’s the strategy that led Tucker Carlson’s Daily Caller to report on the dossier full time — including forcing the opinion editor at the time to publish a Deripaska column attacking the dossier.

Fusion GPS’s Simpson, in a New York Times op-ed describing his own Judiciary Committee testimony, claimed a neoconservative website “and the Clinton campaign” were “the Republican and Democratic funders of our Trump research.” The Judiciary Committee’s Sen. Dianne Feinstein (D-Calif.) then unilaterally released, over the objection of committee chairman Sen. Chuck Grassley (R-Iowa), Simpson’s testimony to “set the record straight.” Fusion GPS “commended Senator Feinstein for her courage.”

Yet on March 16, 2017, Daniel Jones — himself a team member of Fusion GPS, self-described former FBI agent and, as we now know from the media, an ex-Feinstein staffer — met with my lawyer, Adam Waldman, and described Fusion as a “shadow media organization helping the government,” funded by a “group of Silicon Valley billionaires and George Soros.” My lawyer testified these facts to the Senate Intelligence Committee on Nov. 3. Mr. Soros is, not coincidentally, also the funder of two “ethics watchdog” NGOs (Democracy 21 and CREW) attacking Rep. Nunes’ committee memo.

A former Obama State Department official, Nuland, has been recently outed as another shadow player, reviewing and disseminating Fusion’s dossier, and reportedly, hundreds of other dossiers over a period of years. “Deep State-proud loyalists” apparently was a Freudian slip, not a joke.

Invented narratives — not “of the people, by the people, for the people,” but rather just from a couple of people, cloaked in the very same hypocritical rhetoric of “freedom” and “democracy” that those are actively undermining — impede internationally shared efforts on the world’s most pressing, real issues, like global health, climate change and the future of energy. My own “Mother Russia” has many problems and challenges, and my country is still in transition from the Soviet regime — a transition some clearly wish us to remain in indefinitely.

And that’s the strategy that led Chuck Grassley, Lindsey Graham, and Ron Johnson to spend their time discrediting the dossier rather than conducting oversight of Donald Trump.

That’s the strategy that led Darrell Cooper to believe (or claim to believe) several false claims about the dossier and then use those false claims to excuse the way Trumpsters lost faith in institutions and so attacked the Capitol. In short, the likelihood that the dossier is disinformation — indeed, the likelihood that the guy twisting the nuts of Trump’s campaign manager fed the dossier full of disinformation even while using that pressure to obtain his cooperation — means that (at least if you believe Cooper’s narrative) that disinformation led, through a series of steps, Americans to attack the American Capitol.

Trumpsters appear to love Cooper’s narrative, I guess because it doesn’t hold them responsible for their own gullibility or betrayal of the country. There are other problems with it (including the replication of other claims that Republicans have agreed is Russian disinformation). But ultimately, even with Cooper’s errors, what his narrative amounts to (at least for all the Trumpsters who believe the dossier was disinformation) is a claim that Russia’s 2016 disinformation campaign led Trump supporters to attack the US Capitol.

Update: After I posted some folks in the thread questioned what the point of the disinformation would be. This post lays out a possible logic to it all.

You Cannot Discuss Disinformation and the Steele Dossier without Discussing Oleg Deripaska

The New York Times’ Barry Meier is the latest person to become part of the disinformation project associated with the Steele dossier, while claiming to critique it.

Before I explain why, let me lay out some very basic facts about the Steele dossier about which anyone deigning to comment on it at this point should be expected to exhibit basic awareness.

It is a fact that, starting in 2014 and continuing at least through at least February 2017, Christopher Steele used his relationship with DOJ’s Organized Crime expert, Bruce Ohr, to encourage ties between Oleg Deripaska and the US government. That included brokering a meeting between Ohr and Deripaska in 2015, and several communications in 2016 before Fusion GPS hired Christopher Steele to investigate Trump. It included Steele’s meeting with Ohr on July 30, 2016, at which Steele provided Ohr information on Russian doping, details from his reporting for the DNC, and news about Deripaska’s lawsuit against Paul Manafort. On December 7, 2016 — the day before Deripaska associate Konstantin Kilimnik would renew his pitch to Paul Manafort on a plan to carve up Ukraine — Ohr even suggested that Deripaska would be a useful source to reveal Manafort and Trump’s corruption. Just as Steele was working with the DNC via an attorney client, Steele was working with Deripaska via one or more attorney client. Like Manafort, Steele was under financial pressure in this period, and so was eager to keep Deripaska’s attorneys as a client. This post and this post provide a summary of their exchanges over that year.

It is a fact that Steele’s primary subsource, Igor Danchenko, described that in March 2016, Steele tasked Danchenko to find out what he could learn about Paul Manafort’s corruption and his ties to Ukraine (though Danchenko had little success). When asked about the client for this work, Danchenko, “had no inclinations as to why, or for whom, Steele was asking about Manafort.”

It is a fact that the DOJ Inspector General Report on Carter Page provided evidence to suggest an associate of Oleg Deripaska — and so we should assume Oleg Deripaska himself — learned of Steele’s dossier on Donald Trump by early July 2016, which would have been after just the first report had been completed.

Ohr told the OIG that, based on information that Steele told him about Russian Oligarch 1, such as when Russian Oligarch 1 would be visiting the United States or applying for a visa, and based on Steele at times seeming to be speaking on Russian Oligarch l’s behalf, Ohr said he had the impression that Russian Oligarch 1 was a client of Steele. 210 We asked Steele about whether he had a relationship with Russian Oligarch 1. Steele stated that he did not have a relationship and indicated that he had met Russian Oligarch 1 one time. He explained that he worked for Russian Oligarch l’s attorney on litigation matters that involved Russian Oligarch 1 but that he could not provide “specifics” about them for confidentiality reasons. Steele stated that Russian Oligarch 1 had no influence on the substance of his election reporting and no contact with any of his sources. He also stated that he was not aware of any information indicating that Russian Oligarch 1 knew of his investigation relating to the 2016 U.S. elections. 211

210 As we discuss in Chapter Six, members of the Crossfire Hurricane team were unaware of Steele’s connections to Russian Oligarch 1. [redacted]

211 Sensitive source reporting from June 2017 indicated that a [person affiliated] to Russian Oligarch 1 was [possibly aware] of Steele’s election investigation as of early July 2016.

This means that Deripaska’s associate probably learned of the dossier project before Steele met with Ohr on July 30 to share — along with information on Russian doping — information about Deripaska’s lawsuit against Manafort and the first tidbits from Steele’s dossier reporting.

It is a fact that in the same month, early June 2017, that the Intelligence Community found evidence that an Oleg Deripaska associate had learned of the dossier project, the Intelligence Community found evidence that two people with ties to Russian intelligence learned of the dossier project.

According to the Supervisory Intel Analyst, the cause for the discrepancies between the election reporting and explanations later provided to the FBI by Steele’s Primary Sub-source and sub-sources about the reporting was difficult to discern and could be attributed to a number of factors. These included miscommunications between Steele and the Primary Sub-source, exaggerations or misrepresentations by Steele about the information he obtained, or misrepresentations by the Primary Sub-source and/or sub-sources when questioned by the FBI about the information they conveyed to Steele or the Primary Sub-source. 342

342 In late January 2017, a member of the Crossfire Hurricane team received information [redacted] that RIS [may have targeted Orbis; redacted] and research all publicly available information about it. [redacted] However, an early June 2017 USIC report indicated that two persons affiliated with RIS were aware of Steele’s election investigation in early [sic] 2016. The Supervisory Intel Analyst told us he was aware of these reports, but that he had no information as of June 2017 that Steele’s election reporting source network had been penetrated or compromised.

The Intelligence Community has identified two associates of Deripaska — Konstantin Kilimnik and Victor Boyarkin (through both of whom Manafort’s reports on the Trump campaign were funneled) — who have ties to Russian intelligence, so it’s possible that this early June 2017 intelligence is actually the same report, showing that a Manafort associate who had ties to Russian intelligence had learned of the dossier.

It is also a fact that Natalia Veselnitskaya, who because she was also a Fusion GPS client, was by far the most likely person to learn of a project conducted by Fusion GPS (possibly through Ed Baumgartner, who was working both the Fusion project with Veselnitskaya and the one with the DNC), also has ties to Russian intelligence.

It is a fact that when DOJ’s Inspector General entertained with the Crossfire Hurricane team the possibility that the Steele dossier had been injected with disinformation, DOJ IG envisioned Oleg Deripaska running that effort.

Priestap told us that the FBI “didn’t have any indication whatsoever” by May 2017 that the Russians were running a disinformation campaign through the Steele election reporting. Priestap explained, however, that if the Russians, in fact, were attempting to funnel disinformation through Steele to the FBI using Russian Oligarch 1, he did not understand the goal. Priestap told us that

what he has tried to explain to anybody who will listen is if that’s the theory [that Russian Oligarch 1 ran a disinformation campaign through [Steele] to the FBI], then I’m struggling with what the goal was. So, because, obviously, what [Steele] reported was not helpful, you could argue, to then [candidate] Trump. And if you guys recall, nobody thought then candidate Trump was going to win the election. Why the Russians, and [Russian Oligarch 1] is supposed to be close, very close to the Kremlin, why the Russians would try to denigrate an opponent that the intel community later said they were in favor of who didn’t really have a chance at winning, I’m struggling, with, when you know the Russians, and this I know from my Intelligence Community work: they favored Trump, they’re trying to denigrate Clinton, and they wanted to sow chaos. I don’t know why you’d run a disinformation campaign to denigrate Trump on the side. [brackets original]

I have laid out the evidence that Oleg Deripaska was playing both sides in 2016, taking steps to make Manafort more vulnerable legally and financially even as his deputy Kilimnik was using Manafort’s vulnerability to swap campaign information for a plan to carve up Ukraine and financial salvation. The same post shows how every single report in the dossier could serve key Russian purposes, both associated with the 2016 operation and more generally (though I’m not arguing the entire dossier was disinformation). If the dossier was disinformation, it would taint a great number of anti-Russian experts, from Steele to the FBI to others in the US government.

If you’re going to write about the Steele dossier at all in 2021, you should exhibit some familiarity with these facts. All the more so if you’re going to talk about whether it was disinformation.

But NYT’s Barry Meier doesn’t do that. Last week, Meier published an excerpt from his book on private intelligence services. The entire excerpt uses the Steele dossier as the exemplar of what can go wrong when private intelligence services sell information collection to clients and also share that information with journalists. I don’t disagree that the dossier was a shit-show, but then I’ve been warning about that for four years now.

As part of Meier’s proof of the shoddy product in the dossier, Meier astoundingly quotes Natalia Veselnitskaya, without clearly explaining that when he says Veselnitskaya “worked alongside” Glenn Simpson, he meant she thought highly enough of his services to employ him.

Over dinner in Moscow in 2019, Natalia Veselnitskaya, a Russian lawyer who met with Donald Trump Jr. at Trump Tower during the 2016 campaign, offered her take on the matter. Ms. Veselnitskaya had worked alongside Mr. Simpson when she represented a Russian-owned real estate firm called Prevezon Holdings and said she regarded him as a skilled investigator. As for Mr. Steele and the dossier, she had nothing but contempt.

“If you take this fake stuff for real, then you just have to be brave enough to believe, to completely dismiss all your special services, all your intelligence staff,” she said rapidly through an interpreter. She suggested how odd it was that all those people and agencies “were never able to find out what that talented person found out without ever leaving his room.”

Ms. Veselnitskaya was embroiled in her own legal drama. The Justice Department had indicted her in connection with her work for Prevezon, a charge she denied. Still, she raised an issue that reporters who embraced the dossier had blown past: How did Christopher Steele know more about Donald Trump and Russia than the C.I.A. or MI6?

One basic piece of evidence that the dossier had been compromised was that neither Simpson nor Steele ever figured out Veselnitskaya had floated a quid pro quo directly to Trump’s son — sanctions relief for dirt — with Manafort in attendance. But Meier apparently doesn’t think that Veselnitskaya was the proof that she said Steele missed. That is, he apparently doesn’t even understand — perhaps because he knows so little about what the Mueller investigation actually revealed? — that he’s being trolled by Veselnitskaya and that troll is offered up as proof that Christopher Steele is uniquely vulnerable to getting fooled by spooked up Russians.

That’s Meier’s one piece of primary evidence against the dossier. Otherwise, Meier explains, investigative journalists like himself rely on primary sources.

Investigative journalists normally rely on court records, corporate documents and other tangible pieces of evidence.

But he recites the kind of understanding of Igor Danchenko you’d get from reading right wing propaganda about him, rather than the Danchenko’s interview itself which showed ways that the DOJ IG Report did not faithfully report on the Danchenko interview (and indeed, had to make a significant correction), or, frankly, all the other problems with the DOJ IG Report.

Meier relies on a series that Erik Wemple did, for which he says, “most journalists [Wemple] contacted either defended their work or ignored his inquiries.” Meier doesn’t mention that not only did I not ignore Wemple, but I told him (twice, I think, both for an early inquiry about Chuck Ross’ reporting on the dossier and for his later series) that to the extent the dossier was disinformation, Ross and Wemple had become part of that effort. That is, Meier may not know, but Wemple himself is guilty of what Meier accuses others of, ignoring inconvenient details that undermine his narrative.

Craziest still, Meier relies on the claims of Matt Taibbi, who has harbored outright conspiracy theories about 2016, and whose own “reporting” on the Russian investigation consistently relies on, and usually misrepresents, secondary sources rather than the primary texts.

In an article for Rolling Stone, Matt Taibbi cast the media’s handling of the dossier as a replay of a press disaster: the reporting before the Persian Gulf war, which claimed that Saddam Hussein had weapons of mass destruction. “The W.M.D. affair showed what happened when we don’t require sources to show us evidence, when we let political actors use the press to ‘confirm’ their own assertions,” Mr. Taibbi wrote. “Are we never going to own up to this one?”

On its own, Meier’s piece is a performance of the problems he complains about: relying on unreliable sources and apparent ignorance of the public record.

But it gets crazier still once you consider the response Glenn Simpson and Peter Fritsch posted to Meier’s work. Along with pointing to some inaccuracies in Meier’s attacks on them and some disclosures Meier should have made, they reveal that Fusion GPS played a bit part in the August 2016 NYT story on Manafort that led to his ouster from the Trump campaign.

By the time of the Democratic National Convention in July, we had been researching Trump for some 10 months — work that began for Republicans and was later continued for Democrats. On July 25, 2016, we met on the sidelines of the convention in Philadelphia with two ofthe Times’ top editors, Dean Baquet and Matt Purdy, to share information about our Trump-Russia research.

Among the topics we discussed was Paul Manafort’s prior work for Ukrainians backed by Putin. The next day, at Purdy’s request, we sent the Times a pile of public record documents that supported a conclusion that Manafort was in a compromised position in relation to Moscow, including records that showed he owed millions of dollars to Deripaska.

Purdy connected us with two of his top reporters. Barry Meier was also assigned to the story. He was having a hard time locating the Virginia court records we’d mentioned to Purdy and Baquet and reached out to Simpson and a colleague for help.

Fusion helped Meier find the records, and they featured prominently in the Times story published two weeks later, proving a vital link connecting Manafort and Deripaska:

After that story, Meier even went back to Fusion for any information they had on Deripaska.

The most important takeaway from the dossier is the way it served as a tool in Oleg Deripaska’s two-sided game that turned Paul Manafort into an easy target. And it turns out that way back in 2016, Meier (and Fusion, in yet another undisclosed way) was part of this two-sided game.

Update: The partially sealed documents in Manafort’s docket are being released today. This Rick Gates 302 shows how closely the August 2 meeting tied Deripaska’s efforts to increase Manafort’s legal and financial woes — the lawsuit — with the delivery of detailed information about how to win the campaign.

After Trump Spent Four Years Inviting Russia to Hack the US, Russia Allegedly Did Just That

Yesterday, Reuters revealed that the same vulnerability used to steal FireEye’s Red Team tools was also used to spy on Treasury and Commerce’s National Telecommunications and Information Administration, which administers the Internet. Then WaPo revealed that Russia’s APT 29 hacking group is believed to be behind the compromise. Multiple outlets — including FireEye itself — revealed that the hack had used a vulnerability in SolarWinds IT monitoring software identified in the spring. FireEye explains the hack has targeted, “government, consulting, technology, telecom and extractive entities in North America, Europe, Asia and the Middle East,” (presumably reflecting what they’ve seen in their clients as they respond to their own compromise). And CISA issued an emergency directive aiming to stem the damage in agencies beyond just Treasury and NTIA (among SolarWinds’ other US government clients are DOJ and two nuclear labs, as well as Booz Allen, which might as well be US government). Later today, Reuters confirmed that DHS had also been targeted. State, NIH, and parts of the Pentagon have also been targeted.

Let me make clear before I start that thus far, this is nation-state spying, without the kind of sabotage we’ve seen from Russia in the past (if it is indeed Russia). Russia would do what they did with this vulnerability with or without Trump in office (indeed, I have a suspicion their overt hacks of the US will go up under President Biden, mostly because Trump didn’t need any help damaging the US government). While the full scope of the victims is not yet known, it’s quite clear that hackers targeted a slew of entities, governmental and not, with this campaign. So having Trump in office in no way created this campaign nor chose the target.

Nevertheless, it is the case that the President of the United States, as a policy matter, has gone to great lengths to make it easier for Russia to minimize the costs of hacking the US.

Almost four years ago, Mike Flynn called up the Russian Ambassador and asked him not to box the Trump Administration in in the wake of President Obama’s effort to hold Russia accountable for interfering in our elections, in part by hacking multiple participants in it, from both parties. Vladimir Putin complied with Flynn’s request, taking no steps in response. Not only did Sergey Kislyak make sure Flynn knew that his request had played a key role in Putin’s decision, but he told Flynn that the Trump Administration and Russia were on the same side, targeted by sanctions aiming to incur a cost for Russia’s actions. “I just wanted to tell you that we found that these actions have targeted not only against Russia, but also against the president elect.”

Well before Kislyak had suggested to the 30-year intelligence veteran that Russia and Trump were on the same side against establishment America, Flynn had already taken steps to hide his actions, perhaps because some Transition members, like Marshall Billingslea, objected to the pre-inauguration outreach to Russia.

When the whole thing got leaked to the public, Flynn lied even to the Vice President-Elect about his outreach.

But Trump appears to have been in on the secret. “The boss is aware” of Kislyak’s earlier requests of the Administration, Flynn told Kislyak on December 31, 2016. Indeed, Flynn made the first call that he would later lie about from Mar-a-Lago, while Flynn, “worked all day with trump from Mara lago,” as KT McFarland bragged in real time.

When the FBI interviewed Flynn about those calls a month later, he lied about the requests he had made of Russia. But he appears to have told a remarkable truth about one thing. “With regard to the scope of the Russians who were expelled,” from the US in retaliation for interfering in a US election, the FBI agents who interviewed him wrote, “FLYNN said he did not understand it. FLYNN stated he could understand one [diplomat expelled as a persona non-grata], but not thirty-five.” General Flynn, a thirty year veteran, thought an appropriate response to a systematic assault on American democracy was to kick out one suspected spy.

Months later (though this would not be revealed until years later), the newly installed President would make it clear he agreed with his short-lived National Security Advisor. In his first face-to-face meeting with representatives from Russia as President on May 10, 2017, President Trump told Foreign Minister Sergey Lavrov that he was unconcerned about Russian interference in the election that had made him President, because the US had historically done the same in other countries. Trump’s officials would take efforts to hide the most embarrassing aspects of that meeting (including that Trump shared highly sensitive Israeli intelligence with the Russians), first by altering the MemCon of the meeting and then having Trump’s new National Security Advisor, HR McMaster, give, “a misleading account of what happened during TRUMP’s meeting with LAVROV.” And Russia would have known that Trump and McMaster were lying.

Before Trump would tell Russia, to their face, that he didn’t much mind that Russia had hacked American democracy, he started dismantling the United State’s ability to prevent further hacks. That started with an effort to prevent the FBI from investigating why Flynn had reached out to Russia to undermine sanctions and (as a sentencing memo approved by Bill Barr’s DOJ would later explain) who ordered him to do so. The day Trump learned the FBI had interviewed Flynn, he asked FBI Director James Comey for loyalty. Then, after Trump fired Flynn — ostensibly for lying to the Vice President — he then privately asked the FBI Director to, “let[] this thing go, to let[] Flynn go.” After Comey testified publicly to Congress about the investigation, Trump fired him.

A long line of people would follow Comey out the door, many of them experts on Russia or counterintelligence or cybersecurity. Trump invented reasons in most cases (reasons that, as with Comey, sharply conflicted with his own views about Hillary Clinton). The obvious real reason had to do with retaliation for investigating him. But in those firings and resignations, Trump got rid of numerous people who had long fought Russian organized crime (like Andrew McCabe and Bruce Ohr), and counterintelligence experts like Peter Strzok. Before and after his impeachment, he got rid of other Russian experts like Marie Yovanovitch and Alexander Vindman. Even those who left of their own accord, like Fiona Hill, were demonized for their true testimony under subpoena.

The most remarkable moment came in July 2018, shortly after the Mueller team indicted Russia’s hackers for their attack on our democracy, when Trump met Putin in Helsinki.

Days before the meeting — though possibly after he had been warned the indictment was coming — Trump announced that he and Putin were talking about cybersecurity cooperation.

Then at the actual summit, with Putin displaying Trump like a soggy trophy, Trump sided with Putin’s denials over the US intelligence community in part because of conspiracy theories about the DNC server.

My people came to me, Dan Coats, came to me and some others, they said they think it’s Russia. I have President Putin. He just said it’s not Russia.

I will say this: I don’t see any reason why it would be. But I really do want to see the server but I have confidence in both parties.

I really believe that this will probably go on for a while, but I don’t think it can go on without finding out what happened to the server. What happened to the servers of the Pakistani gentleman that worked on the DNC?

Where are those servers? They’re missing. Where are they? What happened to Hillary Clinton’s emails? 33,000 emails gone, just gone. I think in Russia they wouldn’t be gone so easily.

I think it’s a disgrace that we can’t get Hillary Clinton’s 33,000 emails.

I have great confidence in my intelligence people, but I will tell you that President Putin was extremely strong and powerful in his denial today and what he did is an incredible offer.

He offered to have the people working on the case come and work with their investigators, with respect to the 12 people. I think that’s an incredible offer. Okay? Thank you.

That is, after a lengthy meeting with Putin, Trump simply decided — perhaps because he had to decide — that Russia had not attacked the US at all. His solution, per Putin’s suggestion, was to send people who had been investigating Russian crimes to Russia, something that has gotten people killed in the past.

Meanwhile, Trump started dismantling the cybersecurity defenses built up during the Obama Administration. The first day John Bolton started as Trump’s third National Security Advisor, experienced cybersecurity guy Tom Bossert was fired as Homeland Security czar.

President Donald Trump’s homeland security adviser, Tom Bossert, was fired Tuesday as the president’s new national security adviser, John Bolton, consolidates power in the White House.

On Monday night, Bossert was socializing with current and former U.S. Intelligence officials at a conference in Sea Island, Georgia, and a source close to him told NBC News that the adviser was unaware of any intention at the White House to seek his resignation, and that he had no plans to quit.

“New team,” the source said, without further explanation.

Bossert was called in to Bolton’s office early Tuesday morning and told that he was being fired, according to a source with direct knowledge.

Trump’s associates may have figured out that Bossert had provided key details about the events at Mar a Lago in December 2016; he also appears to have provided emails to Mueller’s team that helped them to get those of others like Jared Kushner and Steve Bannon.

Rob Joyce, a top NSA expert, was moved back to the Agency a few months after Bossert left. So even as Bolton was downgrading the pandemic expertise within NSC, he was also eliminating top cybersecurity talent.

That was done because Bolton is a power hungry asshole. But Trump continued eliminating cybersecurity expertise (even beyond that ensuring secure elections) in a fit of pique after the election. At a time when this hack would have already started, Trump fired the head of CISA, Chris Krebs, along with a deputy because they refused to back his conspiracy theories about the election. Politico reported that, in Krebs’ absence, “There is ‘massive frustration with CISA on a sluggish response to agency breaches.'”

Cybersecurity was one area where Trump’s team really was every bit the match of Obama’s — if not better. But Trump fired or removed key people one after another.

Similarly, also in a fit of pique, Trump put one after another unqualified flunky in charge of the entire Intelligence Community, first Twitter troll Ric Grenell and then resume fluffer John Ratcliffe. He did so, in substantial part, because they would ensure that Congress would not get briefed on threats from Russia. He also did so to ensure documents that purportedly undermined the case that he had been elected with Russian help would be released to the public. Under the two men, the government released documents that might have revealed key details about sources and methods to the Russians, both on how they collected on the Russian Embassy and on how quickly the CIA picked up certain pieces of intelligence in summer 2016.

Finally, things have come full circle. After Flynn blew up a perfectly good plea agreement (I’ll show in a few days he still would have been better off with that) largely in the service of making unsubstantiated claims of abuse refuted even by Barr’s DOJ along the way, Barr needed to help him out of the legal pickle and jail time his shitty defense attorney Sidney Powell got him into. As part of that effort, the Attorney General of the United States moved to dismiss the prosecution based off a claim (one that conflicted with a filing submitted by his own DOJ months earlier) that Flynn did nothing wrong by calling up Russia to undermine sanctions imposed, in part, to punish them for a hack. The case was so weak, the team trying to invent excuses for why Flynn shouldn’t be prosecuted for lying to hide his attempts to undermine sanctions on Russia altered documents. And that still didn’t work.

And so, along with a Thanksgiving turkey, Trump pardoned Mike Flynn, his first act of lame duck clemency, for Flynn’s service in protecting Trump from accountability for, himself, undermining those sanctions. Trump came into office telling Russia not to worry about hacking the United States. Trump told them explicitly, to their face, not to worry about hacking the United States. And in pardoning Mike Flynn, Trump made it clear that Russia should not worry — about Trump at least — about hacking the Untied States.

We will presumably get more certainty in days ahead about whether Russia did this hack, as well as the many key targets of it. The real question, however, will be whether Trump will be held accountable for inviting it to happen.

Update: The NYT describes analysis pointing out that Trump continues to sow conspiracy theories about voter fraud while remaining silent about getting pwned by his buddy Putin.

Analysts said it was hard to know which was worse: that the federal government was blindsided again by Russian intelligence agencies, or that when it was evident what was happening, White House officials said nothing.

But this much is clear: While President Trump was complaining about the hack that wasn’t — the supposed manipulation of votes in an election he had clearly and fairly lost — he was silent on the fact that Russians were hacking the building next door to him: the United States Treasury.

Updated with link to Politico and expanded list of targets.

Update: Richard Blumenthal, after attending a classified briefing on this compromise, has repeatedly attributed it to Russia.

Mike Pompeo has similarly stated, as fact, that Russia did it.

Horowitz

DOJ’s Accounting of Its FISA Errors Cannot Be Compared to the Carter Page Report

Last year, Bill Barr adopted the stance that Inspector General Michael Horowitz’s assessment of FISA — in the report on the Carter Page FISA applications — wasn’t strict enough, because it found no evidence that the errors in the applications arose from political bias. Last week, Bill Barr’s DOJ adopted the opposite stance, that DOJ IG was too critical of FISA, finding errors in the FBI process where there were none.

It did so in the second of two filings reviewing the errors that DOJ IG had found in 29 other FISA applications. When DOJ IG released an interim report (MAM) describing those errors in March, it appeared to suggest that the level of error in the Carter Page applications — at least with respect to the Woods Files — was actually lower than what DOJ IG had found in the 25 applications.

Now, DOJ appears to be trying to claim — without basis — that that’s not the case.

Ahead of the release of the actual filing, DOJ and FBI orchestrated a press release last week, announcing that they would tell the court none of the errors identified by DOJ IG invalidated the probable cause finding for the 29 files. Predictably, both the responsible press and the frothy right (in stories that misunderstood the findings of either DOJ IG report and at times made errors about the FISA process), concluded that this review shows that Page’s application was uniquely bad.

Only after the press had jumped on that conclusion did DOJ release the filing (here’s the earlier one and here’s AAG John Demers’ statement in conjunction with last week’s release).

The filing makes it clear that it is impossible to draw any comparison between these findings about the earlier Carter Page ones (or even to declare — as many in the press have — that this filing proves DOJ’s FISA problems aren’t as bad as DOJ IG suggested).

That’s true for three reasons:

  • DOJ IG has not finished the kind of review on any of the 29 files it did for Page, and DOJ is not claiming it did either
  • DOJ used a dramatically different methodology for this Woods review than DOJ IG did for the Page review
  • DOJ effectively disagreed with DOJ IG’s findings for roughly 46% of the errors DOJ IG identified — and it’s not clear they explained to the FISA Court why they did so

Before I explain these, there’s a more important takeaway.

In giving itself a clean bill of health, DOJ judged that it doesn’t matter that a 2016 FISA application claimed that one of their sources accused a person of sympathizing with a particular terrorist organization when in fact the source said the person had become sympathetic to radical Muslim causes. For the purposes of FISA, this is a huge distinction, because a terrorist organization counts as a foreign power for the sake of FISA, but radical Muslim causes do not. It’s the difference between targeting someone as a suspected agent of a foreign power and targeting them for First Amendment protected activities. DOJ said this error didn’t matter because there was so much other derogatory information against the target; whether that’s true or not, it remains the case that DOJ’s self-congratulation nevertheless admits to a key First Amendment problem in one of the applications.

Woods violations are different from significant inaccuracies are different from material inaccuracies are different from probable cause

As I explained in this post, the IG Report on Carter Page found two types of problems: 17 “significant inaccuracies” that were mostly errors of omission (see PDF 12 and 14-15 for a list), and Woods file errors (PDF 460ff) for which an assertion made in the application did not have or match the back-up in the accuracy file that is supposed to prove it. The “significant inaccuracies” are the more serious of the two, but a number of those were overblown and in a few cases, dubious, in the DOJ IG Report.

Both of those categories are different from material misstatements, of which DOJ admitted to a number by the time they withdrew the probable cause claim from the third and fourth, but not the first two, Page applications. Before the conclusion of the DOJ IG Report they had told the court of the following material misstatements:

  • July 12, 2018: Cover stories Papadopoulos gave to informants that FBI accurately assessed in real time as false, statements Bruce Ohr made that (in the slightly misrepresented form included in the DOJ IG Report) call into question Christopher Steele’s motives, admissions that Steele himself had spoken to the press
  • October 25, 2019 and November 27, 2019: Details about the actions of Kevin Clinesmith — first not disclosing and then altering a document to hide Page’s relationship with the CIA that covered some but not all of his willful sharing of non-public information with known Russian intelligence officers

It’s not clear the government specified which aspects of the DOJ IG Report it submitted to Rosemary Collyer in December 2019 it deemed material, but she focused on:

  • Statements made by Steele’s primary sub-source that undermined key claims about Page
  • Page’s denials (some proven true, some of still undetermined veracity) of details in the Steele dossier
  • Steele’s derogatory comments about Sergei Millian

On the scale of severity, the material misstatements are the ones that matter, because they’re the ones that will affect whether someone gets wiretapped or not. But the Woods file errors in the Carter Page report identified by DOJ IG describe just four (arguably, three) details even related to things ultimately deemed material which, in turn, led to the withdrawal of two of the applications. None directly described the core issues that led to the withdrawal of the two applications (though the Page denials in conjunction with the sub-source comments did).

Indeed, one key conclusion of this entire process — one that DOJ, DOJ IG, and FISC have all agreed with — is that the Woods files process is not very useful at finding the more important errors of omission of the kind that were the most serious problems in the Page application.

And that’s important because all three of these reports — the March DOJ IG MAM and the June and July responses to FISA — stem from, and only explicitly claim to address, Woods file errors. In its MAM, DOJ IG described what it called its “initial” review this way:

During this initial review, we have not made judgments about whether the errors or concerns we identified were material. Also, we do not speculate as to whether the potential errors would have influenced the decision to file the application or the FISC’s decision to approve the FISA application. In addition, our review was limited to assessing the FBI’s execution of its Woods Procedures, which are not focused on affirming the completeness of the information in FISA applications.

For its part, DOJ calls DOJ IG’s report “preliminary” (seemingly ignoring that the IG claimed in that MAM and claims on its website to be continuing this part of what it calls a preliminary part of a larger review of FISA). DOJ’s Office of Intelligence did do materiality reviews of both the errors DOJ IG found and some that it found in the process of compiling these reports (in addition to the CT material misstatement described above, it found what sounds like the omission of exculpatory statements in a CI case).

But all this amounts to the more basic of the two kinds of reviews that DOJ IG did in the Carter Page case.

For these reports, DOJ continued to use the accuracy review methodology it now agrees is inadequate

As noted, all parties now agree that the Woods procedure wasn’t doing what it was supposed to do. One reason it wasn’t is because the FBI has always given agents a few weeks notice before they review one of their Woods files, allowing them to scramble to fill out the accuracy file.

But DOJ IG (perfectly reasonably) didn’t give the Crossfire Hurricane team or any of the people involved in the 29 FISA applications it reviewed here that same notice. It conducted its Woods file assessment on what was actually in the accuracy file. In the case of the Carter Page review, they found a placeholder for a 302 that said exactly what DOJ IG faulted FBI for not having evidence for, an observation about how much Stefan Halper has been paid, and publicly available details about Gazprombank, among other true claims that were nevertheless not backed up in the Woods file. It would have been child’s play — but take some work — to get proof of those and most other claims in the file. The Woods file review that DOJ IG did in the Page case — and almost certainly, the review of the 29 files — tested whether the Woods procedures were being adhered to at all, not whether the Woods procedure effectively ensured only documented claims made it into a FISA application.

If you’re going to rely on the Woods procedure as an accuracy tool, that’s what reviews need to do, because otherwise they’re doing nothing to test the accuracy of the reports.

And DOJ now agrees. In its June filing, DOJ committed to changing how it does accuracy reviews starting in September (maybe). Starting then, agents will get no notice of a review before it happens, and the accuracy rate of that no-notice review will be tracked along with the accuracy once an agent is given time to chase down the documentation he didn’t include the first time.

NSD has determined that commencing with accuracy reviews starting after September 30, 2020, it will not inform the FBI field offices undergoing NSD oversight reviews which applications will be subjected to accuracy reviews in advance of those reviews. This date is subject to current operational limitations the coronavirus outbreak is imposing. NSD would not apply this change in practice to accuracy reviews conducted in response to a request to use FISA information in a criminal proceeding, given the need to identify particular information from particular collections that is subject to use. NSD also would not apply this change in practice to completeness reviews ( discussed further below); because of the pre-review coordination that is contemplated for those reviews.

NSD will expect that the relevant FBI field offices have ready, upon NSD’s arrival, the accuracy sub-files for the most recent applications for all FISAs seeking electronic surveillance or physical search. NSD will then, on its arrival, inform the FBI field office of the application(s) that will be subject to an accuracy review. If the case will also be subject to a completeness review, pre-coordination, as detailed below, will be necessary. The Government assesses that implementing this change in practice will encourage case agents in all FISA matters to be more vigilant about applying the accuracy procedures in their day-to-day work.

In addition, although NSD’s accuracy reviews allow NSD to assess individual compliance with the accuracy procedures, NSD’s historical practice has been to allow agents to obtain documentation during a review that may be missing from the accuracy sub-file. NSD only assesses the errors or omissions identified once the agent has been given the opportunity to gather any additional required documentation. While the Government believes that, in order to appropriately assess the accuracy of an application’s content, it should continue to allow agents to gather additional documentation during the accuracy review, it assesses that this historical practice has not allowed for the evaluation of how effective agents have been at complying with the requirement to maintain an accuracy sub-file, complete with all required documentation.

As a result, NSD will tally and report as a part of its accuracy review process all facts for which any documentation, or appropriate documentation, was not a part of the accuracy sub-file at the time the accuracy review commenced.

That said, that’s not how DOJ did these reviews. In fact, John Demers emphasized this fact in his statement claiming victory over these reviews.

In addition, when the OIG found a fact unsupported by a document in the Woods file, the OIG did not give the FBI the opportunity to locate a supporting document for the fact outside the file.

Indeed, that’s not the only thing that DOJ did to help DOJ clean up DOJ’s shitty performance on DOJ IG’s review of their work. After FBI Field Office lawyers got the DOJ IG assessment, they pulled together the existing documentation, then DOJ’s OI worked with agents to fill in what wasn’t there. In fact, DOJ even got an extension on the second report because DOJ and FBI agents were still working through the files, suggesting it took up to three months of work to get the files to where DOJ was willing to tell FISC about them.

In other words, whereas the Crossfire Hurricane team got judged — by Bill Barr’s DOJ — on what was in the Woods file when DOJ IG found it, Bill Barr’s DOJ is judging Bill Barr’s DOJ on what might be in a Woods file after agents have up to three months to look for paperwork to support claims they made as long as six years ago.

DOJ disagreed with DOJ IG’s finding of error about 46% of the time

Finally, DOJ and DOJ IG did not use the same categories of information to track errors on the Woods file reviews, and one of the most common ways they dismissed the import of an error was by saying that DOJ IG was wrong.

The MAM divides the errors it found into three categories: claims not supported by any documentation, claims not corroborated by the supposed back-up, and claims that were inconsistent with the supporting documentation.

[W]e identified facts stated in the FISA application that were: (a) not supported by any documentation in the Woods File, (b) not clearly corroborated by the supporting documentation in the Woods File, or (c) inconsistent with the supporting documentation in the Woods File.

In addition to the two material errors they found, DOJ claims the errors they found fall into five categories (described starting on page 10):

  • Non-material date errors
  • Non-material typographical errors
  • Non-material deviations from the source documentation
  • Non-material misidentified sources of information
  • Non-material facts lacking supporting documentation

But to get to that number, DOJ also weeded out a number of other problems identified by DOJ IG via three other categories of determination reflected in the up to three month back and forth with OI:

  • Claims made that were substantiated by documents added to the file after DOJ IG’s review
  • Claims that, after reviewing additional information, OI “determined that the application accurately stated or described the supporting documentation, or accurately summarized other assertions in the application that were supported by the accuracy subfile”
  • Claims not backed by any document, but for which “the supporting documentation taken as a whole provided support for the fact in the application”

DOJ doesn’t count those instances in its overview — as distinct from individual narratives — of the report (indeed, the scope of added documentation is not qualified at all). And while the DOJ fillings say FBI described that it added documentation to the file in the redacted FBI declaration for FISC, it’s not clear whether it told FISC what it added and how much and where and when it came from (FBI has been known to write 302s long after the fact to document events not otherwise documented in real time).

Here’s what all this looks like in one table (FBI did what is probably a similar table, but it’s classified). Note that DOJ IG used still different categories for the Carter Page review: “Supporting document does not state this fact,” which is probably the same as their “not clearly corroborated” category. In my table, I’ve counted that as a “lacking documentation error.”

There are several takeaways from this table.

First, the numerical discrepancy provides some idea of how many errors DOJ IG found that DOJ made go away either by finding documentation for them, or by deciding that DOJ IG was wrong. DOJ IG said it found an average of 20 errors in the 25 applications it was able to review, or 500 total. DOJ says it found 63 errors in the June report and 138 errors in the July Report, over a total of 29 applications (they did a review of the four files for which DOJ IG was provided with no Woods file, so had 4 more files than DOJ IG).

My numbers are off by 3 from theirs, which might be partly accounted for recurrent errors in a reauthorized application or lack of clarity on DOJ’s narrative. Or maybe like DOJ, I subtracted 48 from 138 and got 91.

Approximately 48 of these 138 non-material errors reflect typographical errors or date discrepancies between an assertion in an application and a source document. Of the remaining 91 non-material errors or unsupported facts, four involve nonmaterial factual assertions that may be accurate, but for which a supporting document could not be located in the FBI’s files; 73 involve non-material deviations between a source document and an application; and 13 involve errors in which the source of an otherwise accurate factual assertion was misidentified.

But my count shows that DOJ simply declared DOJ IG to be wrong 151 times in its assessment that something was an error, with an amazing 35 examples of that in one application, and of which 14 across all applications were instances where DOJ couldn’t find a document to support a claim (not even with three months to look), but instead said the totality of the application supported a claim.

Claiming that the totality of an application supports a claim, while being unable to find documentation for a discrete fact, sure sounds like confirmation bias.

And in the up to three months of review, FBI found documentation to support upwards of 130 claims that originally were not supported in the Woods file. In other words, these weren’t errors of fact — they were just instances of FBI not following the Woods procedure.

We know that if the Crossfire Hurricane team had been measured by the standard DOJ did in these filings, it would have done better than most of these applications (again, only with respect to the Woods file). That’s because, aside from the four claims that rely on intercepted information (which is not public), there is public documentation to support every claim deemed unsupported in the report but three: the one claiming that James Clapper had said that Russia was providing money in addition to the disinformation to help Trump.

The DNI commented that this influence included providing money to particular candidates or providing disinformation.

And the two claiming that Christopher Steele’s reporting had been corroborated, something the DOJ IG Report lays out at length was not true in the terms FBI normally measured. Except, even there, Steele handler Mike Gaeta’s sworn testimony actually said it had been. He described jumping when Steele told him he had information because he was a professional,

And at that time there were a number of instances when his information had borne out, had been corroborated by other sources.

He also provided a perfectly reasonable explanation for why Steele’s reporting was not corroborated in the way DOJ IG measured it in the report: because you could never put Steele on a stand, so his testimony would never be used to prosecute people.

From a criminal perspective and a criminal investigative kind of framework, you know, Christopher Steele and [redacted] were never individuals who were going to be on a witness stand.

In other words, while it appears that DOJ cleaned up many of the errors identified by DOJ IG by finding the documentation to back it over the course of months, the public record makes it clear that Crossfire Hurricane would have been able to clear up even more of the Page Woods file.

The exceptions prove the rule. There are, as my table notes, two or three claims that do not accurately describe what the underlying document says, claiming:

  • That Page never refuted the claims against him (he had, and in many cases, was telling the truth in his refutations)
  • That Steele told the FBI he never shared information with anyone outside his “business associate” [Fusion] and the FBI (he also shared it with State, as other parts of FBI had been told)
  • That in his first FBI interviews Papadopoulos admitted he had met with Australian officials but not that he discussed Russia during those meetings (it’s unclear how accurate this claim is)

Assume the last bullet (used just once) reflects the redacted parts of Papadopoulos’ 302s even though it does match his current statements, that nevertheless leaves you with an error rate on arguably the worst category — misrepresenting your evidence — of 2 or 3 per application. The first two of these are the Woods file errors that turned out to have a tie (a significant one in the first bullet) with the material reasons why some of the files were withdrawn. They’re the two errors in the Woods file that most directly tied to omitted evidence in the application that would lead to their withdrawal.

Of the 29 applications reviewed by DOJ, 12 of them have 3 or more “deviations from the source” material. One has 14 and another has 15.

So on the worst measure that this review actually did measure, the one that on Page’s application tied most directly to reasons to withdraw the application, Page’s application actually was within the norm.

It may well be that when all the reviews are done, DOJ will have proof that Carter Page’s application was an exceptionally bad application. Certainly, the material misstatements may end up being worse.

But the only thing this apples to oranges comparison of the Page methodology and the traditional DOJ methodology has proven is that — as a matter of the Woods file reviews — Bill Barr has used a different standard for Bill Barr’s DOJ than he has with Crossfire Hurricane. And that if the Page file had been treated as all the others were, from a Woods file perspective, it actually wouldn’t look that bad.

It also shows that when Bill Barr’s DOJ wants to continue spying on Americans who don’t happen to be associated with Donald Trump, he’s happy to argue that Michael Horowitz’s very legalistic reviews of the sort that did Andrew McCabe in are wrong.

Updated for clarity.

The Nuances of the Carter Page Application

I’ve now finished a close read of the last Carter Page FISA application. I think the contents bring a lot more nuance to the discussion of it over the last three years. This post will try to lay out some of that nuance.

Hot and cold running Carter Page descriptions

In most ways, the declassified application tracks the DOJ IG Report and shows how the problems with the application in practice. One newly declassified example conservatives have pointed to shows that FBI Agents believed that Page’s media appearances in spring 2017 were just an attempt to get a book contract.

The FBI also notes that Page continues to be active in meeting with media outlets to promote his theories of how U.S. foreign policy should be adjusted with regard to Russia and also to refute claims of his involvement with Russian Government efforts to influence the 2016 U.S. Presidential election. [redacted–sensitive information] The believes this approach is important because, from the Russian Government’s point-of-view, it continues to keep the controversy of the election in the front of the American and world media, which has the effect of undermining the integrity of the U.S. electoral process and weakening the effectiveness of the current U.S. Administration. The FBI believes Page also may be seeking media attention in order to maintain momentum for potential book contracts. (57)

Even if Page were doing media to get a book contract, short of being charged and put under a court authorized gag, there’s nothing that prevents him from telling his story. He’s perfectly entitled to overtly criticize US foreign policy. And as so often happens when intelligence analysis sees any denials as a formal Denial and Deception strategy, the FBI allowed no consideration to the possibility that some of his denials were true.

Julian Sanchez argued when the IG Report came out that FBI’s biases were probably confirmation bias, not anti-Trump bias, and this is one of the many examples that supports that.

One specific Page denial that turned out to be true — that he was not involved in the Ukraine platform issue — is even more infuriating reading in declassified form. As the IG Report noted, by the time FBI filed this last application, there were several piece of evidence that JD Gordan was responsible for preventing any platform change.

An FBI March 20, 2017 Intelligence Memorandum titled “Overview of Trump Campaign Advisor Jeff D. [J.D.] Gordon” again attributed the change in the Republican Platform Committee’s Ukraine provision to Gordon and an unnamed campaign staffer. The updated memorandum did not include any reference to Carter Page working with Gordon or communicating with the Republican Platform Committee. On May 5, 2017, the Counterintelligence Division updated this Intelligence Memorandum to include open source reporting on the intervention of Trump campaign members during the Republican platform discussions at the Convention to include Gordon’s public comments on his role. This memorandum still made no reference to involvement by Carter Page with the Republican Platform Committee or with the provision on Ukraine.

On June 7, 2017, the FBI interviewed a Republican Platform Committee member. This interview occurred three weeks before Renewal Application No. 3 was filed. According to the FBI FD-302 documenting the interview, this individual told the FBI that J.D. Gordon was the Trump campaign official that flagged the Ukrainian amendment, and that another person (not Carter Page) was the second campaign staffer present at the July 11 meeting of the National Security and Defense Platform Subcommittee meeting when the issue was tabled.

Although the FBI did not develop any information that Carter Page was involved in the Republican Platform Committee’s change regarding assistance to Ukraine, and the FBI developed evidence that Gordon and another campaign official were responsible for the change, the FBI did not alter its assessment of Page’s involvement in the FISA applications. Case Agent 6 told us that when Carter Page denied any involvement with the Republican Platform Committee’s provision on Ukraine, Case Agent 6 “did not take that statement at face value.” He told us that at the time of the renewals, he did not believe Carter Page’s denial and it was the team’s “belief” that Carter Page had been involved with the platform change.

But the application’s treatment of this issue doesn’t just leave out that information. The utterly illogical explanation of why the FBI believed he had a role in the platform — which was quoted in the IG Report — appears worse in context.

During these March 2017 interviews, the FBI also questioned Page about the above-referenced reports from August 2016 that Candidate #1’s campaign worked to make sure Political Party #1’s platform would not call for giving weapons to Ukraine to fight Russian and rebel forces [this matter is discussed on pgs. 25-26]. According to Page, he had no part in the campaign’s decision. Page stated that an identified individual (who previously served as manager of Candidate #1’s campaign) more likely than not recommended the “pro-Russian” changes. As the FBI believes that Page also holds pro-Russian views and appears to still have been a member of Candidate #1’s campaign in August 2016, the FBI assesses that Page may have been downplaying his role in advocating for the change to Political Party #1’s platform. (55)

(Here’s the March 16, 2017 interview.)

It’s not just that the FBI had about five other pieces of evidence that suggested Page was not involved, but for the FBI, it was enough that he was pro-Russian to suggest Page would have had the influence and bureaucratic chops to make it happen, even in the absence of any evidence to the fact. Add in the fact that FBI obtained a pen register on Page as part of this application (as reflected by notations in the margin of redacted material), and the fact that FBI didn’t track what communications he did or did not have at any time is particularly inexcusable.

So there’s abundant evidence in the Page applications that FBI acted like they normally do, seeing in every denial yet more evidence of guilt.

That said, the application does show more to explain why the FBI suspected Page in the first place and continued to have questions about his veracity until the end. For example, here’s the full explanation of how Page came to tell a Russian minister he had been the guy that Viktor Podobnyy was recruiting.

Based on information provided by Page during this [March 2016] interview, the FBI determined that Page’s relationship with Podobnyy was primarily unidirectional, with Page largely providing Podobnyy open source information and contact introductions. During one interview, Page told the FBI that he approached a Russian Minister, who was surrounded by Russian officials/diplomats, and “in the spirit of openness,” Page informed the group that he was “Male-1” in the Buryakov complaint. (16-17)

The FBI took this both as Page’s own confirmation that he was the person in the complaint, which in turn meant that Page knew he was being recruited, and, having learned that, sought ought well-connected Russians to identify himself as such.

As the application laid out later, Page at first denied what he had previously told the FBI about this incident and the Russians who had previously tried to recruit him in his March 2017 interviews. (This occurred in his March 16, 2017 interview.)

In a reference to the Buryakov complaint, Page stated that “nobody knows that I’m Male-1 in this report,” and also added that he never told anyone about this. As discussed above, however, during a March 2016 interview with the FBI regarding his relationship with Podobnyy, Page told the FBI he informed a group of Russian officials that he (Page) was “Male-1” in the Buryakov complaint. Thus, during the March 2017 interview, the FBI specifically asked Page if he told any colleague that he (Page) was “Male-1.” In response, Page stated that there was a conversation with a Russian Government official at the United Nations General Assembly The FBI again asked Page if he had told anyone that he was “Male-1.” Page responded that he “forgot the exact statement.”

Note, Page’s 302 quotes Page as telling the Minister, “I didn’t do anything [redacted],” but it’s unclear (given the b3 redaction) whether that relays what Page said in March 2017 or if the b3 suggests FBI learned this via other means. But the redacted bit remains one of the sketchier parts of this.

The application also describes how Page denied having a business relationship with Aleksandr Bulatov, the first presumed time Russia tried to recruit him, claiming he may have had lunch with him in New York. That Page claimed only to have had lunch with him is all the more absurd since this was the basis for his supposed cooperation with the CIA.

Having seen how Page handled his HPSCI interview and TV interviews, it’s not surprising to see he denied ties he earlier bragged about (which, in any case, undermines any claim he was operating clandestinely). But at best, Page didn’t deny the key thing he could have to avert suspicion: to admit (as George Papadopoulos readily did) that he was overselling his access in Russia to the Trump campaign, in emails the FBI presumably obtained using FISA. Nothing in the IG Report rebuts the claim that Page claimed things in communications that provided basis to believe he was lying (the actual communications are redacted in the applications because all of the FISA collection targeted at Page has been sequestered). So while the FBI did a bunch of inexcusable things with Page, there were things that Page did — and never explained — that explain the FBI’s sustained suspicion of him.

An explanation for some of the GOP’s core beliefs about the dossier and the investigation

The release of the full application also helps to explain how Republicans came to have certain beliefs about the Steele dossier and the Russian investigation. Take this passage:

Source #1 reported the information contained herein to the FBI over the course of several meetings with the FBI from in or about June 2016 through August 2016.

The passage is slightly inaccurate: Mike Gaeta first got reports from Christopher Steele in early July.

Shortly before the Fourth of July 2016, Handling Agent 1 told the OIG that he received a call from Steele requesting an in-person meeting as soon as possible. Handling Agent 1 said he departed his duty station in Europe on July 5 and met with Steele in Steele’s office that day. During their meeting, Steele provided Handling Agent 1 with a copy of Report 80 and explained that he had been hired by Fusion GPS to collect information on the relationship between candidate Trump’s businesses and Russia.

Since initial details of Steele’s reporting have been made public, the frothy right has been unable to understand that information doesn’t necessarily flow instantaneously inside of or between large bureaucracies. And having read this line, I assume Kash Patel would have told Devin Nunes and Trey Gowdy that it was proof that the FBI predicated the investigation on the Steele dossier, because “the FBI” had Steele’s reports a month before opening the investigation into Trump’s aides (though, in fact, that was months after NYFO had opened an investigation into Page). The IG Report, however, explains in detail about how there was a bit of a delay before Steele’s handler sent his reports to the NY Field Office, a delay there for a while, and a further delay after a member of the Crossfire Hurricane team asked NYFO to forward anything they had. As a result, the CH team didn’t receive the first set of Steele reports until September 19, over a month after the investigation started.

On August 25, 2016, according to a Supervisory Special Agent 1 (SSA 1) who was assigned to the Crossfire Hurricane investigation, during a briefing for then Deputy Director Andrew McCabe on the investigation, McCabe asked SSA 1 to contact NYFO about information that potentially could assist the Crossfire Hurricane investigation. 225 SSA 1 said he reached out to counterintelligence agents and analysts in NYFO within approximately 24 hours following the meeting. Instant messages show that on September 1, SSA 1 spoke with a NYFO counterintelligence supervisor, and that the counterintelligence supervisor was attempting to set up a call between SSA 1 and the ADC. On September 2, 2016, Handling Agent 1, who had been waiting for NYFO to inform him where to forward Steele’s reports, sent the following email to the ADC and counterintelligence supervisor: “Do we have a name yet? The stuff is burning a hole.” The ADC responded the same day explaining that SSA 1 had created an electronic sub-file for Handling Agent 1 in the Crossfire Hurricane case and that he

In any other world, this delay — as well as a delay in sharing derogatory information freely offered by Bruce Ohr and Kathleen Kavalec — would be a scandal about not sharing enough information. But instead, this passage about when FBI received the files likely plays a key part of an unshakeable belief that the dossier played a key role in predicating the investigation, which it does not.

Similarly, declassification of the application helps to explain why the frothy right believes that claims George Papadopoulos made to Stefan Halper and another informant in fall 2016 should have undermined the claims FBI made.

To be clear: the frothy right is claiming Papadopoulos’s denials should be treated as credible even after he admitted to a second informant that he told the story he did to Halper about Trump campaign involvement in the leaked emails because he believed if he had said anything else, Halper would have gone to the CIA about it. The FBI, however, believed the claims to be lies in real time, and on that (unlike Carter Page’s denials) the record backs them. There’s even a footnote (on page 11) that explicitly said, “the FBI believes that Papadopoulos provided misleading or incomplete information to the FBI” in his later FBI interviews.

That said, the way Papadopoulos is used in this application is totally upside down. A newly declassified part of the footnote describing Steele’s partisan funding claims that Papadopoulos corroborates Steele’s reporting (the italicized text is newly declassified).

Notwithstanding Source #1’s reason for conducting the research into Candidate #1’s ties to Russia, based on Source #1’s previous reporting history with the FBI, whereby Source #1 provided reliable information to the FBI, the FBI believes Source #1’s herein to be credible. Moreover, because of outside corroborating circumstances discussed herein, such as the reporting from a friendly foreign government that a member of Candidate #1’s team received a suggestion from Russia that Russia could assist with the release of information damaging to Candidate #2 and Russia’s believed hack and subsequent leak of the DNC e-amils, the FBI assesses that Source #1’s reporting contained herein is credible.

This is the reverse of how the IG Report describes things, which explains that the DNC emails came out, Australia decided to alert the US Embassy in London about what Papadopoulos had said three months earlier, which led the FBI to predicate four different investigations (Page, Papadopoulos, Mike Flynn, and Paul Manafort; though remember that NYFO had opened an investigation into Page in April) to see if any of the most obvious Trump campaign members could explain why Russia thought it could help the Trump campaign beat Hillary by releasing emails. The Steele dossier certainly seemed to confirm questions raised by the Australia report (which explains why the FBI was so susceptible, to the extent this was disinformation, to believing it, and why, to the extent it was disinformation, it was incredibly well-crafted). The Steele dossier seemingly confirmed the fears raised by the Australia report, not vice versa. It seems like circular logic to then use Papadopoulos to “corroborate” the Steele dossier. That has, in turn, led the right to think undermining the original Australian report does anything to undermine the investigation itself, even though by the end of October Papadopoulos had sketched out the outlines of what happened with Joseph Mifsud and discussed wanting to cash in on it, and Papadopoulos continued to pursue this Russian relationship, including a secret back channel meeting in London, well into the summer.

Finally, I’m more sympathetic, having read this full application, to complaints about the way FBI uses media accounts — though for an entirely different reason than the frothy right. The original complaint on this point misread the way the FBI used the September 23 Michael Isikoff article reporting on Page, suggesting it was included for the facts about the meeting rather than the denials from Page and the campaign presented in it. The discussion appears in a section on “Page’s denial of cooperation.”  And — as I’ve noted before — the FBI always sourced that story to the Fusion GPS effort, even if they inexcusably believed that Glenn Simpson, and not Steele, was the “well-placed Western intelligence source” cited in the article.

But with further declassification, the way the application relied on two articles about the Ukraine platform to establish what the campaign had actually done (see page 25), rather than refer to the platform itself — or, more importantly, Trump’s own comments about policy, which I’ll return to — appears more problematic (not least because FBI confused the timing of one of those reports with the actual policy change.

Steele and Sergei Millian as uniquely correct about WikiLeaks

There’s another thing about sourcing in this application (which carries over to what I’ve often seen in FBI affidavits). While there are passages discussing the larger investigation into Russia’s 2016 operation that remain redacted (and indeed, there’s a substitution of a redaction with “FBI” on page 7 which probably hides that the IC as a whole continued to investigate Russian hacking), key discussions of that investigation cite to unclassified materials, even in a FISA application that would have under normal circumstances never been shared publicly. For example, the discussion describing attribution of the operation to Russia from pages 6 to 10 largely relies on the October 7 joint statement and Obama’s sanctions statement, not even the January 2017 Intelligence Community Assessment, much less (with the exception of two redacted passages) anything more detailed.

Even ignoring secret government sources, there was a whole lot more attributing Russia and WikiLeaks’s role in the hack-and-leak, especially by June 2017. Yet the Page application doesn’t touch any of that.

And that makes the way the application uses the allegations — attributed to Sergei Millian — to make knowable information about the WikiLeaks dump tie to unsupported information in the dossier all the more problematic. As parroted in the application, this passage interlaces true, public, but not very interesting details with totally unsupported allegations:

According to information provided by Sub-Source [redacted] there was a well-developed conspiracy of co-operation between them [assessed to be individuals involved in Candidate #1’s campaign] and the Russian leadership.” Sub-Source [redacted] reported that the conspiracy was being managed by Candidate #1’s then campaign manager, who was using, among others, foreign policy advisor Carter Page as an intermediary. Sub-Source [redacted] further reported that the Russian regime had been behind the above-described disclosure of DNC e-mail messages to WikiLeaks. Sub-Source [redacted] reported that WikiLeaks was used to create “plausible deniability,” and that the operation had been conducted with the full knowledge and support of Candidate #1’s team, which the FBI assessed to include at least Page. In return, according to Sub-Source [redacted], Candidate #1’s team, which the FBI assessed to include at least Page, agreed to sideline Russian intervention in Ukraine as a campaign issue and to raise U.S.NATO defense commitments in the Baltics and Eastern Europe to deflect attention away from Ukraine.

The DOJ IG report describes how FBI responded to this report by (purportedly) examining the reliability of Steele and his sources closely.

The FISA application stated that, according to this sub-source, Carter Page was an intermediary between Russian leadership and an individual associated with the Trump campaign (Manafort) in a “well-developed conspiracy of co-operation” that led to the disclosure of hacked DNC emails by Wikileaks in exchange for the Trump campaign team’s agreement, which the FBI assessed included at least Carter Page, to sideline Russian intervention in Ukraine as a campaign issue. The application also stated that this same sub-source provided information contained in Steele’s Report 80 that the Kremlin had been feeding information to Trump’s campaign for an extended period of time and that the information had reportedly been “very helpful,” as well as information contained in Report 102 that the DNC email leak had been done, at least in part, to swing supporters from Hillary Clinton to Donald Trump. 300 Because the FBI had no independent corroboration for this information, as witnesses have mentioned, the reliability of Steele and his source network was important to the inclusion of these allegations in the FISA application.

Except there would seem to be another necessary step: to first identify how much of this report cobbled together stuff that was already public — which included Russia’s role, the purpose of using WikiLeaks, Carter Page’s trip to Russia (but not specifics of his meetings there), and — though the application got details of what happened with Ukraine in the platform wrong — the prevention of a change to the platform. On these details, Steele was not only not predictive, he was derivative. Putting aside the problems with the three different levels of unreliable narrators (Steele, his Primary Subsource, and Millian), all of whom had motives to to package this information in a certain way, the fact that these claims clearly included stuff that had been made available weeks earlier should have raised real questions (and always did for me, when I was reading this dossier). Had the FBI separated out what was unique and timely in these allegations, they would have looked significantly different (not least because they would have shown Steele’s network was following public disclosures on key issues).

This is not the kompromat you’re looking for

Which brings me to perhaps the most frustrating part of this application.

As I started arguing at least by September 2017 (and argued again and again and again), to the extent the dossier got filled with disinformation, it would have had the effect of leading Hillary’s campaign to be complacent after learning they had been hacked, because according to the dossier, the Russians planned to leak years old FSB intercepts from when Hillary visited Russia, not contemporaneous emails pertaining to her campaign and recent history. It might even have led the Democrats to dismiss the possibility that the files Guccifer 2.0 was releasing were John Podesta files, delaying any response to the leak that would eventually come in October.

To the extent the dossier was disinformation, it gave the Russian operation cover to regain surprise for their hack-and-leak operation. At least with respect to the Democrats, that largely worked.

And, even though the Australians apparently believed the DNC release may have confirmed Papadopoulos prediction that Russia would dump emails, it appears to have partly worked with the FBI, as well. This passage should never appear in an application that derived from a process leading from the DNC emails to the shared tip about Papadopoulos to a request to wiretap Page:

According to reporting from Sub-Source [redacted] this dossier had been compiled by the RIS over many years, dating back to the 1990s. Further, according to Sub-Source [redacted] his dossier was, by the direct instructions of Russian President Putin, controlled exclusively by Senior Kremlin Spokesman Dmitriy Peskov. Accordingly, the FBI assesses that Divyekin received direction by the Russian Government to disclose the nature and existence of the dossier to Page. In or about June 2016, Sub-Source [redacted] reported that the Kremlin had been feeding information to Candidate #1’s campaign for an extended period of time. Sub-Source [redacted] also reported that the Kremlin had been feeding information to Candidate #1’s campaign for an extended period of time and added that the information had reportedly been “very helpful.” The FBI assesses the information funneled by the Russians to Page was likely part of Russia’s efforts to influence the 2016 U.S. Presidential election.

Note, the FBI contemporaneously — though not after December 9, 2016 — would not have had something Hillary’s team did, the July Steele report on Russia’s claimed lack of hacking success that the FBI should have recognized as utterly wrong. Still, the earliest Steele reports they did have said the kompromat the Russians were offering was stale intercepts. At the very least, one would hope that would raise questions about why someone with purported access to top Kremlin officials didn’t know about the hack-and-leak operation. But the FBI seems to have expected there might be something more.

Trump clearly was not, but should have been, the target earlier than he was

There’s an irony about the complaints I lay out here: they suggest that Trump should have been targeted far earlier than he was.

The Page application rests on the following logic: One of the notably underqualified foreign policy advisors that Trump rolled out to great fanfare in March 2016 told someone, days later, that Russia had offered to help Trump by releasing damaging information on Hillary. The July dump of DNC emails suggested that Papadopoulos’ knowledge foreknowledge may have been real (and given Mifsud’s ties to someone with links to both the IRA and GRU people behind the operation, it probably was). The temporal coincidence of his appointment and that knowledge seemed to tie his selection as an advisor and that knowledge (and in his case, because Joseph Mifsud only showed an interest in Papadopoulos after learning he was a Trump advisor, that turned out to be true). That made the trip to Russia by another of these notably underqualified foreign policy advisors to give a speech he was even more underqualified to give, all the more interesting, especially the way the Trump people very notably reversed GOP hawkishness on Ukraine days after Page’s return.

In other words, the FBI had evidence — some of it now understood to be likely disinformation, and was trying to understand, how, after Trump shifted his focus to foreign policy, he shifted to a more pro-Russian stance in seeming conjunction with Russia delivering on their promise (shared with foreign policy advisor Papadopoulos) to help Trump by releasing the DNC emails.

It turns out the change in policy was real. And JD Gordan attributed his intervention on the RNC platform, in contravention of direction from policy director John Mashburn, to Trump’s own views.

Gordon reviewed the proposed platform changes, including Denman’s.796 Gordon stated that he flagged this amendment because of Trump’s stated position on Ukraine, which Gordon personally heard the candidate say at the March 31 foreign policy meeting-namely, that the Europeans should take primary responsibility for any assistance to Ukraine, that there should be improved U.S.-Russia relations, and that he did not want to start World War III over that region.797 Gordon told the Office that Trump’s statements on the campaign trail following the March meeting underscored those positions to the point where Gordon felt obliged to object to the proposed platform change and seek its dilution.798

[snip]

According to Denman, she spoke with Gordon and Matt Miller, and they told her that they had to clear the language and that Gordon was “talking to New York.”803 Denman told others that she was asked by the two Trump Campaign staffers to strike “lethal defense weapons” from the proposal but that she refused. 804 Demnan recalled Gordon saying that he was on the phone with candidate Trump, but she was skeptical whether that was true.805 Gordon denied having told Denman that he was on the phone with Trump, although he acknowledged it was possible that he mentioned having previously spoken to the candidate about the subject matter.806 Gordon’s phone records reveal a call to Sessions’s office in Washington that afternoon, but do not include calls directly to a number associated with Trump.807 And according to the President’s written answers to the Office’s questions, he does not recall being involved in the change in language of the platform amendment. 808

Gordon stated that he tried to reach Rick Dearborn, a senior foreign policy advisor, and Mashburn, the Campaign policy director. Gordon stated that he connected with both of them (he could not recall if by phone or in person) and apprised them of the language he took issue with in the proposed amendment. Gordon recalled no objection by either Dearborn or Mashburn and that all three Campaign advisors supported the alternative formulation (“appropriate assistance”).809 Dearborn recalled Gordon warning them about the amendment, but not weighing in because Gordon was more familiar with the Campaign’s foreign policy stance.810 Mashburn stated that Gordon reached him, and he told Gordon that Trump had not taken a stance on the issue and that the Campaign should not intervene.811

[snip]

Sam Clovis, the Campaign’s national co-chair and chief policy advisor, stated he was surprised by the change and did not believe it was in line with Trump’s stance.816 Mashburn stated that when he saw the word “appropriate assistance,” he believed that Gordon had violated Mashburn’s directive not to intervene.817

Sam Clovis would ultimately testify there had been a policy change around the time of the March 31 meeting (though Clovis’ testimony changed wildly over the course of a day and conflicted with what he told Stefan Halper).

Clovis perceived a shift in the Campaign’s approach toward Russia-from one of engaging with Russia through the NATO framework and taking a strong stance on Russian aggression in Ukraine.

But (as noted above), to lay this out in the Page application, the FBI sourced to secondary reporting of the policy change rather than to the platform itself. More notably, in spite of all this happening after late July 2016, there’s no mention of Trump’s press conference on July 27, 2016, where he asked Russia to go find more Hillary emails (and they almost immediately started hacking Hillary’s personal accounts), said he’d consider recognizing Russia’s annexation of Crimea and lifting sanctions, and lied about his ongoing efforts to build a tower in Russia.

Trump directed Mueller to a transcript of the press conference, I’ve put excerpts below. They’re a good reminder that at the same press conference where Trump asked Russia to find Hillary’s emails (and in seeming response to which, GRU officers targeted Hillary’s personal office just five hours later), Trump suggested any efforts to build a Trump Tower in Moscow were years in the past, not ongoing. After the press conference, Michael Cohen asked about that false denial, and Trump “told Cohen that Trump Tower Moscow was not a deal yet and said, ‘Why mention it if it is not a deal?’” He also said they’d consider recognizing Russia’s seizure of Crimea, which makes Konstantin Kilimnik’s travel — to Moscow the next day, then to New York for the August 2 meeting at which he and Paul Manafort discussed carving up Ukraine at the same meeting where they discussed how to win Michigan — all the more striking. Trump’s odd answer to whether his campaign “had any conversations with foreign leaders” to “hit the ground running” may reflect Mike Flynn’s meetings with Sergei Kislyak to do just that.

In other words, rather than citing Trump’s language itself, which in one appearance tied ongoing hacking to an even more dramatic policy change than reflected in the platform, the Carter Page application cited secondary reporting, some of it post-dating this appearance.

Mueller asked Trump directly about two of the things he said in this speech (the Russia if you’re listening comment and the assertion they’d look at recognizing Crimea) and obliquely about a third (his public disavowals of Russian business ties). Trump refused to answer part of one of these questions entirely, and demonstrably lied about another. Publicly, Mueller stated that Trump’s answers were totally inadequate. And these statements happened even as his campaign manager and Konstantin Kilimnik were plotting a clandestine meeting to talk about carving up Ukraine.

The FBI may have done this to stay way-the-fuck away from politics — though, to be clear, Trump’s call on Russia to find more Hillary emails in no way fits the bounds of normal political speech.

But by doing do, they ended up using far inferior sourcing, and distracting themselves from actions more closely implicating Trump directly — actions that remain unresolved.

The Carter Page application certainly backs the conclusions of the DOJ IG Report (though it also shows I was correct that DOJ IG did not know what crimes Page was being investigated for, and as such likely got the First Amendment analysis wrong). But it also shows that the Steele dossier, which fed the FBI’s inexcusable confirmation biases, undermined the FBI investigation into questions that have not yet been fully answered.

Bill Barr Commits the Bruce Ohr “Crime”

Far be it for me to ever underestimate the possibility of Bill Barr nefariousness (and I’ll almost certainly have to eat these words), but I’m far less concerned about what Barr said the other day about a process to ingest Ukrainian bullshit from Rudy Giuliani than virtually everyone else. That’s because in his comments from the other day, he emphasized the import of vetting information from Ukraine, whether it comes from Rudy Giuliani or anyone else.

We have to be very careful with respect to any information coming from the [sic] Ukraine. There are a lot of agendas in the [sic] Ukraine, there are a lot of cross-currents, and we can’t take anything we receive from the [sic] Ukraine at face value. And for that reason we had established an intake process in the field so that any information coming in about Ukraine could be carefully scrutinized by the department and its intelligence community partners so that we could assess its provenance and its credibility. That is true for all information that comes to the Department relating to the [sic] Ukraine including anything Mr. Giuliani might provide.

This sounds like the kind of thing you’d do to placate your boss even while ensuring DOJ doesn’t accept a bunch of disinformation manufactured by mobbed up oligarchs to mess with America.

The WaPo’s report that Barr is sending all this to the US Attorney in Pittsburgh suggests Barr neither wants this stuff in Main DOJ but also is not sending it to either of the two places — John Durham’s inquiry or the SDNY prosecution of the Ukrainian grifters — where it might be used in an ongoing investigation.

A Justice Department official said Giuliani had “recently” shared information with federal law enforcement officials through the process described by Barr. Two people familiar with the matter said the information is being routed to the U.S. attorney’s office in Pittsburgh.

[snip]

It is not clear whether Scott W. Brady, the U.S. attorney in Pittsburgh, will play a similar role, or why his office was chosen. A spokeswoman for Brady’s office declined to comment.

So while I hope (again, probably over-optimistically) that this is just a convenient way to deal with a difficult boss and his criminal subject attorney, I also worry that it’s not being shared with the people investigating such information sharing as illegal foreign influence peddling.

Plus, it strikes me as a unbelievably hypocritical for Bill Barr to continue to ingest dodgy information probably sourced to corrupt oligarchs after the entire frothy right has demonized Bruce Ohr for continuing to accept information — some but not all of it sourced to Oleg Deripaska — from Christopher Steele.

Admittedly, no one can complain about the basis for which DOJ’s Inspector General relied on to make a completely irresponsible attack on Ohr — that he didn’t inform his superiors (even though they had, in fact, been informed). Barr is the boss! He has chosen who should deal with this information, in a way that Sally Yates and Rod Rosenstein did not.

But Barr is, nevertheless, doing what the frothy right complains that Ohr did: continue to accept problematic information — deemed partisan (inaccurately in the case of Ohr, because his information sharing with Steele long preceded the DNC project and much of what he shared during and after that involved entirely unrelated topics) — after it had been discredited.

Perhaps, along with issuing orders that suggest Trump can commit any crime he wants between now and November 2020, Barr should issue an order explaining how DOJ should accept such information — including manufactured dirt from Steve Bannon — as a rule, so we can stop working under different rules for different parties.

Mike Pompeo Can Find Proof that Obama Addressed Ukrainian Corruption in Trump’s Joint Defense Agreement

Mike Pompeo had an unbelievably dickish interview with NPR’s Mary Louise Kelly this morning. In spite of the fact that Kelly alerted his staff she intended to ask about Iran and Ukraine, he complained when she turned to Ukraine. He falsely claimed he had defended everyone of his reports, including Marie Yovanovitch. And he reportedly accused Kelly of not being able to find Ukraine on a map (which she promptly did).

I was taken to the Secretary’s private living room where he was waiting and where he shouted at me for about the same amount of time as the interview itself.

He was not happy to have been questioned about Ukraine.

He asked, “do you think Americans care about Ukraine?”

He used the F-word in that sentence and many others. He asked if I could find Ukraine on a map. I said yes, and he called out for aides to bring us a map of the world with no writing. I pointed to Ukraine. He put the map away. He said, “people will hear about this.”

But the craziest thing might be Pompeo’s claim that President Obama did nothing to take down corruption in Ukraine.

Change of subject. Ukraine. Do you owe Ambassador Marie Yovanovitch an apology?

You know, I agreed to come on your show today to talk about Iran. That’s what I intend to do. I know what our Ukraine policy has been now for the three years of this administration. I’m proud of the work we’ve done. This administration delivered the capability for the Ukrainians to defend themselves. President Obama showed up with MREs (meals ready to eat.) We showed up with Javelin missiles. The previous administration did nothing to take down corruption in Ukraine. We’re working hard on that. We’re going to continue to do it. [my emphasis]

Pompeo has to say this, obviously, because a key Trump defense against impeachment is that Joe Biden was supporting, rather than combatting corruption. But a number of impeachment witnesses, including Marie Yovanovitch, explained at length the things Obama had done to combat Ukrainian corruption. It’s one of many reasons why Obama did not give lethal aid to Ukraine. Bruce Ohr, whom Trump has targeted for over a year, worked hard on the issue, too.

But the craziest part of this claim — that Obama did nothing to take down corruption in Ukraine — can be found in Trump’s own Joint Defense Agreement. There are two glaring exhibits of efforts taken under Obama to combat corruption: Dmitro Firtash, who was indicted for bribery by NDIL in 2013, is represented by Victoria Toensing and Joe DiGenova, who were consulting on Trump’s defense against the whistleblower complaint on October 8, 2019.

So, too, was Kevin Downing, Paul Manafort’s defense attorney. Manafort, of course, was ultimately found guilty of breathtaking corruption in Ukraine in an investigation that started in January 2016. Manafort lied to obstruct an investigation into what he was doing in a meeting on August 2, 2016, where he discussed how to get paid by several of his corrupt Ukrainian paymasters, shared his campaign strategy, and discussed how to carve up Ukraine to Russia’s liking; that investigation started just days later, on August 10, 2016.

In short, Obama’s DOJ opened a number of investigations into Ukrainian corruption. It just turns out that two of the most notorious defendants in those investigations are part of a Joint Defense Agreement with Pompeo’s boss.

Useful But Not Sufficient: FBI’s FISA Fix Filing

As one of her last acts as presiding FISA judge, Rosemary Collyer ordered the government to explain how it will ensure the statement of facts in future FISA applications don’t have the same kind of errors laid out in the DOJ IG Report on Carter Page.

THEREFORE, the Court ORDERS that the government shall, no later than January 10, 2020, inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application. In the event that the FBI at the time of that submission is not yet able to perform any of the planned steps described in the submission, it shall also include (a) a proposed timetable for implementing such measures and (b) an explanation of why, in the government’s view, the information in FBI applications submitted in the interim should be regarded as reliable.

DOJ and FBI submitted their response on Friday. (This post lays out new revelations about the FISA process in it.) While I think there are useful fixes, most laid out in FBI Director Chris Wray’s response to the IG Report itself, the fixes are insufficient to fix FISA.

The filing largely focuses on the institution and evolution of the current accuracy review process. It promises to review the memorandum guiding that process (though doesn’t set a deadline for doing so), and adds some forms and training to try to ensure that FBI Agents provide DOJ all the information that the lawyers should include in an application to FISA. One of those forms — pertaining to human sources — seems important though might lead to counterintelligence problems in the future. Another, requiring agents to provide all exculpatory information, may improve the process. But fundamentally, DOJ and FBI assume that the process they currently use just needs to be improved to make sure it works the way they intend it to.

They’re probably insufficient to fix the underlying problems in the Carter Page FISA application.

The FISA Fix Filing is based on faulty assumptions

I say that, first of all, because the FISA Fix Filing adopts certain assumptions from the DOJ IG Report that may not be valid. The FISA Fix Filing assumes that:

  • FBI was responsible for all the errors on the Carter Page application
  • The right people at FBI had the information they needed
  • The Carter Page application was an aberration

The IG Report ignored where DOJ’s National Security Division contributed to errors

As I note in this post, possibly because of institutional scope (DOJ IG cannot investigate DOJ’s prosecutors), possibly because of its own confirmation bias, the IG Report held the FBI responsible for all the information that was known to investigators, but not included in the Carter Page FISA applications. Yet the report showed that at least two of the things it says should have been included in the Page applications — Page’s own denials of a tie with Paul Manafort, and Steele’s own derogatory comments about Sergei Millian — were shared with DOJ’s Office of Intelligence, which writes the applications. Indeed, Rosemary Collyer even noted the latter example in her letter. It also shows DOJ’s National Security Division had confirmed a fact — that Carter Page had no role in the platform change at the RNC — before FBI had.

Because the FISA Fix Filing assumes FBI is responsible for everything mistakenly excluded from the applications, the proposed fixes shift even more responsibility to FBI, requiring agents, with FBI lawyers, to identify the information that should be in an application. But if — as the IG Report shows — sometimes FBI provides the relevant information but it’s not included by the lawyers, then ensuring they provide all the relevant information won’t be sufficient to fix the problem.

The focus on FBI to the detriment of NSD has one other effect. NSD includes few changes to their behaviors in the FISA Fix Filing (largely limited to training and inadequate accuracy reviews). And where they do consider changes, they do not — as ordered by the court — set deadlines for themselves.

The IG Report barely noted the import of the failure to share information in timely fashion

The IG Report deviates radically from almost twenty years of after-action reports that have consistently advocated for more sharing of national security information. It recommends that Bruce Ohr be disciplined for doing just that. Perhaps to sustain that bizarre conclusion, the IG Report focuses almost no attention on an issue that is critical to fixing the problems in the Carter Page applications: ensuring that the people submitting a FISA application have all the information available to the US government. The IG Report showed a 2 month delay before the Crossfire Hurricane team obtained the Steele reports, a month delay in getting feedback from State Department official Kathleen Kavalec, and delays in obtaining the full extent of Bruce Ohr’s knowledge on the dossier, all of which contributed to the delayed vetting of the dossier. But the IG Report doesn’t explore why this happened. And the FBI FISA Fix only addresses it by reminding agents to consult with other agencies.

In another of the 17 problems with the FISA applications, the people submitting the applications apparently did not learn that Christopher Steele had admitted meeting with Yahoo in court filings.

According to the Rule 13 Letter and FBI officials, although there had been open source reporting in May 2017 about Steele’s statements in the foreign litigation, the FBI did not obtain Steele’s court filings until the receipt of Senators Grassley and Graham’s January 2018 letter to DAG Rosenstein and FBI Director Christopher Wray with the filings enclosed. We found no evidence that the FBI made any attempts in May or June 2017 to obtain the filings to assist a determination of whether to change the FBI’s assessment concerning the September 23 news article in the final renewal application.

In other instance (as noted above), while NSD had affirmative knowledge that Carter Page had not been involved in the change to the RNC platform, FBI had a different view, yet this issue was not resolved to fully discount the claim in FISA applications. The IG Report also faults FBI managers (but never NSD ones) for not aggressively questioning subordinates to get a full sense of problems with the applications. All of these are information sharing problems, not errors of transparency. Making the case agent fill out forms about what he or she knows will have only limited effect on ensuring that those agents obtain all the information they need, because if they don’t know it, they won’t know to look for it.

With the Crossfire Hurricane investigation, that problem was exacerbated by the close hold of the investigation (most notably by running the investigation out of Main Justice) and, probably, by the urgency of investigating an ongoing attack while it’s happening, which likely led personnel to focus more on collecting information about the attack than exculpatory information.

The FISA Fix Filing includes a vaguely worded document describing technological improvements — including a workflow document that sounds like bureaucratic annoyance as described — that suggest FBI is considering moving some of this to the cloud.

Corrective Action #11 requires the identification and pursuit of short- and long-term technological improvements, in partnership with DOJ, that aid in consistency and accountability. I have already directed executives in the FBI’s Information Technology Branch leadership to work with our National Security Branch leadership and other relevant stakeholders to identify technological improvements that will advance these goals. To provide one example of a contemplated improvement, the FBI is considering the conversion of the revised FISA Request Form into a workflow document that would require completion of every question before it could be sent to OI. The FBI proposes to update the Court on its progress with respect to this Corrective Action in a filing made by March 27, 2020.

It’s still not clear this would fix the problem (it’s still not clear how Bruce Ohr would have shared the information he had in such a way that he wouldn’t now be threatened with firing for doing so, for example). And for a close hold investigation like this, such a cloud might not work. But it would be an improvement (if FBI could keep it secure, which is a big if).

The FISA Fix Filing does have suggests to improve information sharing. But because the scope of the problem, as defined in the IG Report, doesn’t account for information that simply doesn’t get to the people submitting the application, it’s not clear it will fix that problem.

No one knows whether the Page applications are an aberration or not

Finally, no one yet knows whether the Carter Page application was an aberration, and thus far, no one at DOJ has committed to finding out. DOJ IG has committed to doing an audit of the Woods Procedure process that failed in the Carter Page case (and the FISA Fix Filing committed to respond to any findings from that).

The Government further notes that the OIG is conducting an audit of FBI’s process for the verification of facts included in FISA applications that FBI submits to the Court, including an evaluation of whether the FBI is in compliance with its Woods Procedures requirements. The Department will work with the OIG to address any issues identified in this audit.

Yet everyone involved admits that the most serious problems with the Page applications consisted of information excluded from the application, not inaccurate information in it.

Many of the most serious issues identified by the OIG Report were … [when] relevant information is not contained in the accuracy sub-file and has not been conveyed to the OI attorney.

Doing an audit of the Woods Procedures, then, does not test the conclusion that Page’s applications are an aberration, and therefore does not test whether more substantive fixes are necessary.

DOJ IG has considered doing more — and PCLOB suggested last year they might get involved (though technically, their counterterrorism scope wouldn’t even permit them to look at counterintelligence cases like Page’s) — but thus far there’s no plan in this filing to figure out of this is a broader problem.

The existing oversight for FISA may be inadequate

There are several reasons to believe that the existing oversight regime for FISA may be inadequate.

As noted, the existing IG plan to audit the Woods Procedure is insufficient to identify whether the existing FISA Fix Filing is sufficient to fix the problem. Also as noted above, the jurisdiction of DOJ’s IG, because it cannot review the actions of prosecutors, might not (and in this case, pretty demonstrably did not) adequately review all parts of the process, because it could not subject NSD attorneys to the same scrutiny it did FBI.

Then there are shortcomings to NSD’s oversight regime — shortcomings that Judge James Boasberg — the new presiding FISA Judge and so the just now in charge of overseeing these fixes — already highlighted in an opinion on problems with Section 702 queries.

As the FISA Fix Filing describes, OI (the same office that the IG Report let off when it received information but did not include it in applications) does a certain number of oversight reviews each year. But they don’t do reviews in every FBI field office (to which FBI devolved the FISA application process some years ago), and they don’t do accuracy reviews at every office where they do an oversight review.

OI’s Oversight Section conducts oversight reviews at approximately 25-30 FBI field offices annually. During those reviews, OI assesses compliance with Court-approved minimization and querying procedures, as well as the Court orders. Pursuant to the 2009 Memorandum, OI also conducts accuracy reviews of a subset of cases as part of these oversight reviews to ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application. 5 OI may conduct more than one accuracy review at a particular field office, depending on the number ofFISA applications submitted by the office and factors such as whether there are identified cases where errors have previously been reported or where there is potential for use of FISA information in a criminal prosecution. OI has also, as a matter of general practice,_ conducted accuracy reviews of FISA applications for which the FBI has requested affirmative use of FISA-obtained or -derived information in a proceeding against an aggrieved person. See 50U.S.C. §§ 1806(c), 1825(d).

During these reviews, OI attorneys verify that every factual statement in the categories of review described in footnote 5 is supported by a copy of the most authoritative document that exists or, in enumerated exceptions, by an appropriate alternate document. With regard specifically to human source reporting included in an application, the 2009 Memorandum requires that the accuracy sub-file include the reporting that is referenced in the application and further requires that the FBI must provide the reviewing attorney with redacted documentation from the confidential human source sub-file substantiating all factual assertions regarding the source’s reliability and background.

As Boasberg noted in his 702 opinion last year, this partial review may result in problems going unaddressed for years.

Personnel from the Office of Intelligence (OI) within the Department of Justice’s National Security Division (NSD) visit about half of the FBI’s field offices for oversight purposes in a given year. Id at 35 & n 42. Moreover OI understandably devotes more resources to offices that use FISA authorities more frequently, so those offices [redacted] are visited annually, id at 35 n. 42, which necessitates that some other offices go for periods of two years or more between oversight visits. The intervals of time between oversight visits at a given location may contribute to lengthy delays in detecting querying violations and reporting them to the FISC. See, e.g., Jan. 18, 2019, Notice [redacted] had been conducting improper queries in a training context since 2011, but the practice was not discovered until 2017).

Furthermore, OI’s review of a subset of a subset of applications targeting Americans only reviews for things included in the application, not things excluded from it.

OI’s accuracy reviews cover four areas: (1) facts establishing probable cause to believe that the target is a foreign power or an agent of a foreign power; (2) the fact and manner of FBI’s verification that the target uses or is about to use each targeted facility and that property subject to search is or is about to be owned, used, possessed by, or in transit to or from the target; (3) the basis for the asserted U.S. person status of the target(s) and the means of verification; and (4) the factual accuracy of the related criminal matters section, such as types of criminal investigative techniques used (e.g., subpoenas) and dates of pertinent actions in the criminal case.

DOJ admits that this is a problem, and considers doing a check for the kind of information excluded from Carter Page’s applications, but doesn’t commit to doing so and (again, unlike FBI) doesn’t give itself a deadline to do so.

Admittedly, these accuracy reviews do not check for the completeness of the facts included in the application. That is, if additional, relevant information is not contained in the accuracy sub-file and has not been conveyed to the OI attorney, these accuracy reviews would not uncover the problem. Many of the most serious issues identified by the OIG Report were of this nature. Accordingly, OI is considering how to expand at least a subset of its existing accuracy reviews at FBI field offices to check for the completeness of the factual information contained in the application being reviewed. NSD will provide a further update to the Court on any such expansion of the existing accuracy reviews.

Improving these oversight reviews will have a salutary effect on all FISA authorities, not just individualized orders. Since Boasberg has already identified the inadequacies of the current reviews, I would hope he’d ask for at least an improved oversight regime.

Treating alleged subpoenas like they’re not subpoenas

There’s a change promised that I’m unsure about: Chris Wray’s voluntary decision to subject Section 215 and pen register orders to heightened accuracy reviews.

Currently, the accuracy of facts contained in applications for pen register and trap and trace surveillance pursuant to 50 U.S.C. § 1841 , et seq. , or applications for business records pursuant to 50 U.S. C. § 1861 , et seq. , must, prior to submission to the Court, be reviewed for accuracy by the case agent and must be verified as true and correct under penalty ofpeijury pursuant to 28 U.S.C. § 1746 by the Supervisory Special Agent or other designated federal official submitting the application. Historically, the Woods Procedures described herein have not been formally applied by the FBI to applications for pen register and trap and trace surveillance or business records. As discussed in the FBI Declaration, FBI will begin to formally apply accuracy procedures to such applications and proposes to update the Court on this action by March 27, 2020.

FBI has, for years, told the public these are mere grand jury subpoena equivalents, and so the privacy impact is not that great. That Wray thinks these need accuracy reviews suggests they’re more intrusive than that, in which case by all means FBI should add these reviews.

But as I suggested in this post, some of the problems with the Carter Page applications might have been avoided had the Crossfire Hurricane team obtained call records from both Page and George Papadopoulos early in the process, which would not only have confirmed Page’s accurate claim that Paul Manafort never returned his emails (undermining a key claim from the dossier), but it would have revealed Papadopoulos’ interactions with suspect Russian asset Joseph Mifsud, thereby pinpointing where the investigative focus should have been (and making it a lot harder for Papadopoulos to obstruct the investigation in the way he did). The IG Report doesn’t ask why this didn’t happen, but it seems an important question because if the FBI chose not to use ostensibly less intrusive legal process because existing Section 215 applications are not worth the trouble, then making the purportedly less-intrusive applications even more onerous will only lead to a rush to use full FISA, as appears to have happened here.

Further breaking the affiant-officer of the court relationship

One of the more insightful observations from the IG Report described how OI attorneys and FBI agents applying for FISA orders don’t work as closely as prosecutors and agents on a normal case.

NSD officials told us that the nature of FISA practice requires that OI rely on the FBI agents who are familiar with the investigation to provide accurate and complete information. Unlike federal prosecutors, OI attorneys are usually not involved in an investigation, or even aware of a case’s existence, unless and until OI receives a request to initiate a FISA application. Once OI receives a FISA request, OI attorneys generally interact with field offices remotely and do not have broad access to FBI case files or sensitive source files. NSD officials cautioned that even if OI received broader access to FBI case and source files, they still believe that the case agents and source handling agents are better positioned to identify all relevant information in the files.

The proposed FISA fixes seem to derive from this OI viewpoint, that because OI don’t work closely with agents they need to replace cooperation that is often inadequate on normal criminal investigations with a process that has even less cooperation for applications that are supposed to have a higher degree of candor.

The FISA Fix Filing seems to envision FBI lawyers picking up this slack, but especially since DOJ devolved the application process to Field Agents some years ago, it’s not clear, at all, why this would result in better lawyering.

Formalizing the role of FBI attorneys in the legal review process for FISA applications, to include identification of the point at which SES-level FBI OGC personnel will be involved, which positions may serve as the supervisory legal reviewer, and establishing the documentation required for the legal review;

[snip]

Corrective Action #7 requires the formalization of the role of FBI attorneys in the legal review process for FISA applications, to include identification of the point at which SES-level FBI OGC personnel will be involved, which positions may serve as the supervisory legal reviewer, and establishing the documentation required for the legal reviewer. Through this Corrective Action, the FBI seeks to encourage legal engagement throughout the FISA process, while still ensuring that case agents and field supervisors maintain ownership of their contributions.

As it is, the FISA process requires a more senior agent to be the affiant on an application, which in at least one of the Page applications, resulted in someone who had less knowledge of the case making the attestation under penalty of perjury.

It may be that these changes go in the opposite direction from where FISA should go, which would be closer to the criminal warrant model where a judge will have an FBI affiant who anticipates taking the stand at a trial (and therefore needs to retain his or her integrity to avoid damaging the case), and an office of the court signing off on applications (whom judges can sanction directly). That is, by introducing more layers and absolving OI from some of the direct responsibility for the process, these proposed changes may make FISA worse, not better.

Remarkably, the court might consider something far more effective.

On Friday, Boasberg appointed David Kris as amicus for this consideration. Kris literally wrote the book on all this, in addition to writing the 2001 OLC memo that eliminated the wall between the intelligence collected under FISA and the prosecutions that arise out of them. In a recent podcast, he mused that the way to fix all this may be to give defendants review of their applications, something always envisioned by Congress, but something no defendant has done. That — along with a more robust oversight process — seems like it has a better chance of changing the way the FBI and DOJ approach FISA applications than adding a bunch more checklists for the process.

The frothy right is in a lather over Kris’ appointment, which is a testament to how little these people (up to and especially Devin Nunes) understand FISA. But he has the institutional clout to be able to recommend real fixes to FISA, rather than a bunch of paperwork to try to make the Woods Procedure to work the way it’s supposed to.

DOJ could, voluntarily, provide review to more defendants. Alternately, Congress could mandate it in whatever bill reauthorizes Section 215 this year. Or Kris could suggest that’s the kind of thing that should happen.

Update: David Kris submitted his recommendations to Boasberg. Like me, he finds Wray’s plan useful but not sufficient. Like me he notes that the agents doing the investigation should be the ones signing off on affidavits (and he suggests the FISC review more applications until new procedures are in place). Kris also focuses on cultural changes that need to happen.

One thing he doesn’t do is review DOJ’s role (though he does argue that part of this stems from conflict between DOJ and FBI).

He also notes that DOJ has not imposed deadlines for itself.

Horowitz

DOJ IG Report on Carter Page and Related Issues: Mega Summary Post

Update, January 6: After much haranguing from bmaz, I’m updating this post with a new section discussing whether any of the problems with Carter Page’s FISA application would have mattered, had be been criminally charged. I argue that, given precedents about reviewing FISA applications and suppressing warrants, none of the problems with Page’s FISA application would have mattered were it used in a criminal prosecution. As the IG carries out further review of FBI’s FISA work — and as policy makers decide how to integrate the lessons of this IG Report — that reality needs to be part of the consideration, and, in part because Horowitz dodged the issue of these precedents, that’s missing from this discussion.

I’ve spent the last week doing a really deep dive into the DOJ IG Report on Carter Page and am finally ready to start explaining what it shows (and what it does not show or where it demonstrably commits the same kinds of errors it accuses the Crossfire Hurricane team of). This post will be a summary of what the IG Report shows about the Carter Page FISA process (with some comment on the FISA process generally).

I will do follow-up posts on — at a minimum — how the report treats “exculpatory” information and the biases of this report, what the report says about Bruce Ohr (where I think this report fails, badly), the details the Report offers on the Steele reports, and what it implies about Oleg Deripaska. I’ll probably do one more demonstrating how this IG Report radically deviates from past history on similar reports in ways that are remarkable and troubling. Eventually I’ll do some posts on what should be done to fix FISA.

This post will address the following topics:

  • The predication of the investigation
  • The errors impacting Carter Page
  • The details about whether Carter Page should have been targeted
  • Whether Page would have been able to suppress these warrants had he been charged

The predication of the investigation

The Report is quite clear: “Crossfire Hurricane,” as the investigation was called (henceforth, CH), started in response to the tip Australia provided in the wake of the release of the DNC emails on WikiLeaks.

The FBI opened Crossfire Hurricane in July 2016 following the receipt of ·certain information from a Friendly Foreign Government (FFG). According to the information provided by the FFG, in May 2016, a Trump campaign foreign policy advisor, George Papadopoulos, “suggested” to an FFG official that the Trump campaign had received “some kind of suggestion” from Russia that it could assist with the anonymous release of information that would be damaging to Hillary Clinton (Trump’s opponent in the presidential election) and President Barack Obama. At the time the FBI received the FFG information, the U.S. Intelligence Community (USIC), which includes the FBI, was aware of Russian efforts to interfere with the 2016 U.S. elections, including efforts to infiltrate servers and steal emails belongfng to the Democratic National Committee (DNC) and the Democratic Congressional Campaign Committee. The FFG shared this information with the State Department on July 26, 2016, after the internet site Wikileaks began releasing emails hacked from computers belonging to the DNC and Clinton’s campaign manager.

The WikiLeaks release made Papadopoulos’ comments to Alexander Downer (and, probably, his aide Erica Thompson, who had an earlier meeting with him in May 2016 before one she attended with Downer) look like the campaign had advance knowledge from the Russians about that release. That it did has since been confirmed with respect to Papadopoulos and — evidence in Roger Stone’s trial suggests — possibly Stone, too.

Australia provided the tip first to the US embassy in London (which may or may not have involved the CIA), which then passed it on to the Philadelphia Field Office, which passed it to the Section Chief of Cyber Counterintelligence Coordination at FBI HQ, where it arrived on July 28. People at HQ, including Peter Strzok, spent the next three days discussing what to do, after which Bill Priestap opened a full investigation to determine whether the Trump campaign was coordinating with the government of Russia.

On July 31, 2016, the FBI opened a full counterintelligence investigation under the code name Crossfire Hurricane “to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia.”

A big part of that was trying to figure out how Papadopoulos might have gotten advance notice of the email dump, which is why, over the next 16 days, the FBI opened counterintelligence investigations into the four most likely sources of that information: Papadopoulos himself, Carter Page (who was already the subject of a counterintelligence investigation opened in April 2016), Paul Manafort (who was already the subject of a money laundering investigation opened in January 2016), and Mike Flynn (who had met with Putin the previous December and had ongoing communications with the GRU).

Of the four, Page is the only one not charged with or judged to have lied to obstruct the investigation (though the FBI believed he was not telling the full truth in his March 2017 interviews). The government still has questions about what Page, Manafort, and Papadopoulos did during the campaign period. And a counterintelligence investigation into Flynn remained ongoing as of May. In other words, not only was the investigation justified, but it still is, because questions about everyone originally included remain.

The IG found no bias in the opening of the investigation, and everyone asked said the FBI would have been derelict had they not done so.

That’s worth keeping in mind as Bill Barr lies about the reasons for and results of this investigation, not least because had FBI made different decisions early in the investigation, it might have had more success in figuring out what (especially) Paul Manafort was up to.

The errors impacting Carter Page

In part because the FBI already had substantiated concerns about Page’s willingness to work with known Russian intelligence officers, it moved immediately to get a FISA order on him in August 2016. Lawyers deemed it premature. Then, days after the CH belatedly got the first Christopher Steele reports (which had been churning around FBI for two months), they moved to get a FISA order on him. By the time they applied for the order, they had additional damning information about his July 2016 trip to Russia (that he believed he had been offered an “open checkbook” to form a pro-Russian think tank in the US), but it is true that the dossier was the precipitating event that led the CH team to start the FISA process.

The decision to get a FISA order relying on an unverified tip from an existing “Confidential Human Source” was, per the report, no unusual. Not only does that happen, but Steele is a more credible informant than lots of sources for intelligence targeting. Moreover, by the time of the application, FBI had laid out who his assumed sub-sources were (including Sergei Millian, whom they knew to be interacting closely with Papadopoulos by the time the order was approved).

That said there were clear errors with Page’s applications. Those fall into three areas:

  • The FBI did not tell FISC that Page had been an approved contact for CIA until 2013
  • The FBI did not describe Steele accurately and failed to update the application as it discovered problems with the dossier
  • The FBI did not include information that the IG deemed exculpatory to either Page (correctly) or Papadopoulos (less convincingly)

Notice about Page’s past CIA contacts

Before the FBI first applied for a FISA targeting Page, and again in June 2017, it learned that Page had been approved for “operational contact” from 2008 until 2013. Per a footnote, an operational contact is someone the CIA can talk to about information he has, but not someone they can task to collect information.

According to the other U.S. government agency, “operational contact,” as that term is used in the memorandum about Page, provides “Contact Approval,” which allows the other agency to contact and discuss sensitive information with a U.S. person and to collect information from that person via “passive debriefing,” or debriefing a person of information that is within the knowledge of an individual and has been acquired through the normal course of that individual’s activities. According to the U.S. government agency, a “Contact Approval” does not allow for operational use of a U.S. person or tasking of that person.

While the details are not entirely clear, Page appears to have told CIA honestly about his contacts with the first Russian intelligence officer who recruited him after he returned to the US from Russia, but not another (probably Victor Podobnyy). His last contact with CIA was in July 2011, which seems to suggest he did not reveal his ongoing ties to Russian intelligence officers to CIA. Moreover, the FBI would come to have concerns about his earlier ties with Russian spies that would not be excused by this CIA designation, not least because after Podobnyy and his fellow Russian intelligence officers were indicted, Page told a Russian stationed at the UN and some others that he knew he was the person described in the indictment, which they discovered when preparing for trial in 2016. The FBI would come to believe Page was less than honest about Page’s comments about showing up in the indictment in 2017.

The FBI did not provide notice of the CIA designation, at all, to FISC. That’s a big problem because the FBI had included both Russian recruitment attempts in its application without explaining that Page had been candid about the first one with the CIA. Worse still, in advance of the last reauthorization in June 2017, FBI lawyer Kevin Clinesmith — who is one of the people who had sent anti-Trump texts using his FBI phone — altered an email to hide the relationship.

None of that changes that Carter Page, throughout this period, told anyone who asked that he thought it was okay to provide non-public information to people he knew to be Russian intelligence officers, nor that he enthusiastically considered taking money from Russia to set up a pro-Russian think tank. But it does raise real questions about whether Page was acting clandestinely, a key requirement for a FISA application.

Inaccurate descriptions of Steele

The IG Report also shows a number of problems with the way the FBI described Steele.

For the first application, that consisted of two problems. First, the FBI didn’t ask Steele’s handler, Mike Gaeta, for his description of Steele’s reliability. As a result, the description overstated how much of his past reporting to the FBI had been corroborated (some of it had been, but much of it was, like the Trump dossier, based on single sources in Russia who couldn’t easily be replicated), and falsely stated that his earlier reporting had been used in court cases, which would have signaled that prosecutors had found it reliable. His reporting had been key to starting the FIFA investigation, but mostly to start the investigation, not to substantiate evidence for trial. Unlike the non-notice about this CIA relationship, this is an error that would have been fixed had the FBI rigorously adhered to the Woods procedures (though the FBI Agent who did the application did have a document — an intelligence report on Steele — he relied on, just not the proper one).

The other initial problem is that the FBI claimed that Steele had not been behind a September 23 Michael Isikoff story relying on Steele’s reporting, something I’ve always found inexcusable. That said, the FBI did alert FISC to the article — they just ridiculously assumed that Glenn Simpson had been the source for the story, not Steele, and did so after initially stating that Steele was behind it. Had they attributed the story to Steele, they would have had to close him as a source weeks before they otherwise did, but it probably wouldn’t have affected the initial approval for the order.

The far more egregious error, however, came on reauthorizations (see this post for a timeline of the events laid out in the report). Starting immediately after they closed Steele as a source, the FBI started getting more details — initially from Bruce Ohr, then Steele’s former colleagues, then his primary sub-source — about his reporting. And most of the things they learned should have raised general concerns about Steele and serious concerns about the reliability of the dossier. Of the ten additional problems DOJ IG found with the applications on the renewals, six of them pertain to providing no notice of increasing reason to doubt the Steele dossier.

I’ll write about the Steele fiasco in a follow-up post. But one detail is worth noting here. There was disagreement between Steele and the FBI about his work dating back to 2013, with Steele understanding he was a contractor and the FBI treating him (partly for bureaucratic reasons) as a CHS. Then, in October 2016, when the CH team tried to task him to answer specific questions about the investigation — about the predicated subjects of the investigation, physical evidence, sub sources who might serve as cooperating witnesses — there was again a misunderstanding about whether Steele was working exclusively for the FBI or simply providing information he was providing to Fusion. As a result, Steele believed he could speak to the press about anything he wasn’t doing for FBI exclusively (which included the dossier), but the FBI considered that cause to stop using him altogether.

Failure to include exculpatory information

Finally, the FBI failed to include exculpatory information pertaining to denials from Page, Papadopoulos, and Joseph Mifsud, and reliability questions about Millian (who was himself the subject of a counterintelligence investigation).

The DOJ IG is absolutely right that FBI should have included Page’s denials in these applications, which include denials that he had ever spoken to Paul Manafort (as alleged in the dossier), had a role in the Republican platform on Ukraine (also alleged in the dossier), or had a role in the email release (the question they were supposed to be answering). All those denials are, as far as we know, absolutely correct. It also excluded his denials of meeting Igor Sechin and Igor Diveykin (as alleged in the dossier), which is probably true, though FBI obtained RUMINT supporting a Sechin meeting.

I’ll address DOJ IG’s stance on the Papadopoulos and Mifsud denials later, both of which were (and were deemed to be by the FBI) at least partly false. But it raises a key problem with a FISA application that — unlike a criminal warrant affidavit — will never be shared with the target of it. Excluding this kind of stuff is generally deemed acceptable in a normal criminal warrant. It is not (and should not be) here, because there will never be discovery. But that raises real questions about what gets counted as exculpatory, which is a topic I’ll return to.

Ultimately, the IG Report judged it should all have been noticed to DOJ which, for the most part, it was not.

Note, Julian Sanchez argues — convincingly, I think — that many of these errors come not from malice or political bias, but from confirmation bias.

Whether Carter Page should have been targeted

The errors in the Page applications are inexcusable.

But they don’t address (and the IG Report pointedly avoids addressing) whether he should have been targeted, from a Fourth Amendment, prudential, or investigative focus standpoint.

Without the full application, it’s impossible to say with certainty whether it would meet probable cause had FBI addressed the problems laid out in the IG Report. But a summary of what the IG Report says appeared in the applications (which I’ve laid out here) suggests there probably was probable cause to support the first two applications. In the first one, the derogatory evidence against Steele’s reporting was not yet known to the agents submitting the application (more on that in a follow-up), so he would have been deemed a credible informant by any measure. And by the second one, the FBI had obtained enough information on Page’s trips to Moscow that likely would have supported a probable cause finding without the dossier — though that finding would have far less to do with whether the Trump campaign had foreknowledge of the email dump, which is unsurprising given that FBI already had an investigation into Page in April 2016. The third and fourth application, however, are much closer calls.

That’s a separate question from whether it was a good idea to get a FISA order on Page, something that multiple people at DOJ raised even before the first application, including Stu Evans (the same guy who ensured there’d be a footnote clarifying that Steele likely was working for a political candidate). As the IG Report describes, everyone at FBI responded by saying they could not pull their punches because of political risk.

According to Evans, he raised on multiple occasions with the FBI, including with Strzok, Lisa Page, and later McCabe, whether seeking FISA authority targeting Carter Page was a good idea, even if the legal standard was met. He explained that he did not see a compelling “upside” to the FISA because Carter Page knew he was under FBI investigation (according to news reports) and was therefore not likely to say anything incriminating over the telephone or in email. On the other hand, Evans saw significant “downside” because the target of the FISA was politically sensitive and the Department would be criticized later if this FISA was ever disclosed publicly. He told the OIG that he thought there was no right or wrong answer to this question, which he characterized as a prudential question of risk vs. reward, but he wanted to make sure he raised the issue for the decision makers to consider. According to Evans, the reactions he received from the FBI to this prudential question were some variations of-we understand your concerns, those are valid points, but if you are telling us it’s legal, we cannot pull any punches just because there could be criticism afterward.

It’s easy to say Evans was right on this. But if you go there, it also raises the question that no Trump supporter ever wants to answer (when discussing this FISA or the use of CHSes): what should FBI have done when faced with evidence that Trump was amenable to the help from Russia and might be coordinating with them?

That’s a debate we really need to have but won’t because Barr is trying mightily to pretend the correct answer is “nothing.”

Which is a pity, because I suspect there are key policy issues that trying to answer the question would raise. For example:

  • Aside from the National Security Letters FBI had already served on Page’s providers in the spring, were there other less intrusive kinds of legal process that would have answered some of the questions about Page (and Papadopoulos) without obtaining content?
  • Given FBI’s success at gagging providers, why couldn’t it have used normal criminal process?
  • Are CHSes really as unintrusive as FBI claims, or should they be reserved for higher predication in the FBI’s Domestic Investigations and Operations Guide (though because CH was a full investigation, they would have achieved that level of predication anyway)
  • Why did FBI wait to obtain Page’s financial records — which, for someone working for “free” for the campaign didn’t implicate the campaign at all — until the spring?
  • If FBI believed — because this was clearly a counterintelligence investigation — it had to use FISA, did something prevent it from using Section 215 first to obtain more probable cause?
  • Was Page even the key person they should have been focusing on?

The last question gets into whether targeting Page with a FISA was the right question — both on the first application, and on the fourth — from an investigative standpoint.

In an effort to ensure the investigation would not leak, from its inception through December 2016, CH was done out of FBI Headquarters (for diagrams of the three different organizations used before Mueller took over, see PDF 117-119), meaning it didn’t have the investigative resources it would have had if it had left the investigations in the field offices. That may have necessitated some resource allocation questions.

Then, by the time of (at least) the second renewal, Page had not only been spun well free of the Trump Administration, but the FBI investigation into everyone but Papadopoulos had already become public.

Because it was not its job, DOJ IG only reported on questions about whether getting a FISA on Page was the right investigative choice — both focusing on him more aggressively than the others, and obtaining a FISA on him.

Start with the former question. By the time CH decided to obtain a FISA order on Page, Papadopoulos had given answers to Stefan Halper that Republicans like to claim were exculpatory but were in fact correctly identified as a cover story and — I think but am awaiting response from the IG’s office — actually could be provably shown to be a lie in real time. Had CH obtained the call records on Papadopoulos at that point rather than a full content warrant on Page, they would have identified Papadopoulos’ ties with Joseph Mifsud, someone already suspected of being a Russian asset. Papadopoulos then laid out the outlines of his interactions with Mifsud in an October conversation with an informant. Had FBI focused on this more closely, they would have known before they interviewed Papadopoulos in January that he had these ties and was lying about them, which might have led FBI to obtain enough information about Mifsud in time to detain him rather than just interview him in early 2017.

The same could be said of Paul Manafort. Had CH focused on him, they might have obtained call records reflecting his ongoing communications with Konstantin Kilimnik, who (as a foreigner overseas) could be targeted under Section 702 and EO 12333. That might have revealed Manafort’s ongoing coordination in real time, which he continues to lie about.

Perhaps they did some of this, or perhaps they could have done it all. But it’s worth asking whether, because the prior concerns about Page meant they could get a FISA on him, they chose that path rather than other less intrusive but potentially more productive approaches.

Then there’s the question of whether ongoing FISAs on Page had merit. The Report suggests the FBI believed the first and, probably, the second order were really productive (the IG only reviewed those comms that were pertinent to its study, but based on that partial review, seemed more skeptical).

But by the later applications, the FBI was not keeping up with the incoming FISA materials, something we’ve seen in FISA collections in the past. There ought to be a rule: if you can’t keep up with incoming surveillance collection, it probably means it’s not important enough to justify the impact on an American.

Although there were no recent relevant FISA collections the team found useful, we were told that the FBI was still reviewing FISA collections identified prior to Renewal Application No. 2.

Finally, by the last collections, the FBI admitted that it was no longer getting anything from the FISA (in part, they believed, because Page knew he was being surveilled).

Case Agent 6 told us, and documents reflect, that despite the ongoing investigation, the team did not expect to renew the Carter Page FISA before Renewal Application No. 2’s authority expired on June 30.  Case Agent 6 said that the FISA collection the FBI had received during the second renewal period was not yielding any new information. The OGC Attorney told us that when the FBI was considering whether to seek further FISA authority following Renewal Application No. 2, the FISA was “starting to go dark.” During one of the March 2017 interviews, Page told Case Agent 1 and Case Agent 6 that he believed he was under surveillance and the agents did not believe continued surveillance would provide any relevant information.

There’s an exchange in the Report that leads me to suspect they kept targeting Page not because he remained interesting, but because there were new facilities they had IDed in April 2017 that would be easier to target using FISA than criminal process, including encrypted communications. First, they describe finding out that he used an encrypted app.

NYFO sought compulsory legal process in April 2017 for banking and financial records for Carter Page and his company, Global Energy Capital, as well as information relating to two encrypted online applications, one of which Page utilized on his cell phone.

Then, the report describes “previously unknown locations” they could target, which led them to seek a renewal.

SSA 5 and SSA 2 said that further investigation yielded previously unknown locations that they believed could provide information of investigative value, and they decided to seek another renewal.

There’s very good reason to believe that the FBI either has techniques (probably including hacking phones to get encrypted chat texts) that are easier to conduct using FISA, or techniques they’d like to hide by using FISA.

That’s a policy question that needs to be answered. If FBI is choosing to use FISA to hide techniques, it changes the import and use of the law. But it seems clear: by the time of the fourth if not the third order on Page, they really should have stopped for investigative reasons, but may not have because it’s too easy to avoid the risk of detasking against someone who might be a risk.

Whether Page would have been able to suppress these warrants

Finally, there’s the question of whether, had Carter Page been prosecuted using information obtained under these FISA warrants, he would have gotten any of the information thrown out. As bmaz has been screaming since this IG Report became public, the standard for suppression would require Page to argue that this affidavit didn’t meet the probable cause he was an agent of a foreign power, that the FBI Agents who submitted the application knew or should have known there was a problem with the claims they made in the affidavit, and — because this was a FISA order — he’d have to get a judge to allow him to review the affidavit where no prior defendant has been able to. 

And that’s assuming Page even got notice. Often, the FBI will build criminal cases without relying on information obtained under FISA at all. In such cases (as seems to be the case with Lev Parnas and his co-defendants), the government doesn’t have to notice their use of FISA, meaning the defendant never gets the opportunity to try to challenge the FISA warrant. Given how high profile this case is, FBI likely would have tried to avoid giving notice.

Had Page gotten notice, I feel safe in saying he would not have gotten to review his FISA application, because that never has happened, not even in cases with more obviously problematic affidavits

The IG Report carefully avoids saying whether the applications against Carter Page met the threshold of probable cause, either with or without the errors it lays out. Generally, if a magistrate has found probable cause, defendants have a tough time getting those warrants suppressed; and here, four different District Court judges had approved his applications. 

In Page’s case, the way to do this would be to show that stuff in the applications was knowingly false or omitted. In this hypothetical prosecution, Page should have gotten the detail that he was an approved contact with the CIA until 2013, evidence to support his claim that he hadn’t done two of the things in the dossier (interact with Paul Manafort and change the platform), and possibly some of the evidence undermining the Steele dossier (though sometimes the FBI can withhold stuff pertaining to informants). 

As for the first, with his efforts to sustain contact with Russia after CIA’s approved contact lapsed and his interactions with a second Russian intelligence officer CIA didn’t know about, it’s not clear that’d be enough to convince a judge that the prior approvals were improper. 

As to information proving the dossier wrong, because FBI took such a conservative investigative approach prior to the election, it took some time before the FBI discovered it. The FBI first appears to have gotten evidence that would prove Carter Page wasn’t involved in changing the platform in March 2017, though it appears DOJ’s NSD had better information at the time than FBI. Had FBI taken a more aggressive approach prior to Mueller taking over, they might have developed call records to support Carter Page’s claim that Manafort never returned his emails, but it’s not sure that’s enough. The IG Report doesn’t focus as much on the Manafort exculpatory evidence, perhaps because the FBI plausibly believed Page could have been working with Manafort indirectly, as George Papadopoulos had suggested to Stefan Halper. And, as the IG Report notes but minimizes, one reason the FBI didn’t take details undermining the Steele dossier that seriously is because they believed Steele’s Sub-Informant was withholding information from them, which (given the political firestorm at the time and the claims that the Sub-Source might be in danger are quite likely, even ignoring the possibility the Sub-Source had been involved in disinformation).

Then there’s the standard that would apply to both Fourth Amendment and Franks challenges: whether the FBI affiant on the application knew or should have known their claims were wrong.

In this case, a supervisory special agent who wasn’t closely involved in the investigation was the affiant on the first application. He wouldn’t have known, personally, of any problems with the application. He said he relied on the case agent’s Woods review (though said he routinely does review Woods files). So in that first case, the FBI’s policy of having more senior FBI agents sign FISA applications actually make it harder to challenge the warrant, because it would be harder to claim he knew the application was deficient. 

The affiant on the other three applications, called SS2 in the IG Report, was more closely involved in the case. The IG Report provides two specific examples where he swore to something that the IG Report presents as knowably untrue. The first pertains to claims Steele’s Sub-Source made about Millian. But the IG Report said specifically that, “the investigators believed at the time that the Primary Sub-source was holding something back about his/her interaction with [Millian],” which actually accords with what Steele said. Which is to say, the FBI had reason (which may actually have been justified) to believe that the Sub-Source’s comments did not need to be added to the application. 

The other thing SS2 might have known by the last application is Page’s past relationship with the CIA; indeed, he made an effort to nail that down for that application. But Kevin Clinesmith’s alteration of the email that thereby hid that Page had been an approved contact for the CIA specifically prevented SS2 from learning that information. So while Clinesmith can (and is in this case) be disciplined, that doesn’t change that the affiant specifically tried to clarify Page’s relationship with the CIA, but got bad information preventing him from being able to.

And it’s not just the two affiants (though they would be the ones at issue in a suppression motion of Franks hearing). The IG Report specifically says that the agents providing that information did not believe they were withholding relevant information.

In most instances, the agents and supervisors told us that they either did not know or recall why the information was not shared with OI, that the failure to do so may have been an oversight, that they did not recognize at the time the relevance of the information to the FISA application, or that they did not believe the missing information to be significant. 

The reality is it is usually enough, in criminal prosecutions, for FBI agents to attest to such belief in the case of suppression motions, and probably would be here too, even if Carter Page had succeeded in getting the first ever review of his FISA application.

Finally, there’s the standard for Franks challenges, the means by which, on very rare occasions, defendants argue that the law enforcement officers who obtained a warrant on them were so negligent or malicious in their application so as to merit the warrant and its fruit being thrown out.

Franks challenges require the defendant to prove that false statements in a warrant application are false, were knowing, intentional, or reckless false statements, and were necessary to the finding of probable cause (as this law review article explains at length).

Franks challenges involve heavy burdens for defendants to meet, even at the earliest stages. First, the defendant must make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.”79 A defendant’s claim will fail if it only alleges innocent or negligent misrepresentation;80 it will similarly fail if the court determines that the evidence fails to demonstrate falsity.81 At this stage, the defendant must also show that “the allegedly false statement is necessary to the finding of probable cause.”82 Many Franks challenges fail at this stage because the court determines that the allegedly false statement is not important enough to affect the probable cause analysis.83 If the defendant’s “preliminary showing” clears all three of these hurdles (falsity, intent, and materiality), then the defendant is entitled to a hearing on the allegations.84 At the evidentiary hearing, the defendant has to establish by a preponderance of the evidence the same three things; only then will the evidence be suppressed “to the same extent as if probable cause was lacking on the face of the affidavit.”85 Reviewing courts presume the affidavit’s validity and require the defendant to provide specific allegations and an offer of proof.86

As noted, the IG Report itself notes that the agents believed they had submitted what was necessary for the application, so Page could not show they were knowing falsehoods, meaning he’d have to prove that such a belief was reckless, which — particularly for the matter of relying on Steele — would be hard to do, given that he’s a more credible informant than most FISA informants. 

Moreover, aside from Page’s alleged involvement in the platform, it’s not even clear Page could prove that some of the key allegations were false. The FBI did obtain evidence — weak, RUMINT, but nevertheless evidence — that Page may have met with Igor Sechin, and the fact that he met with related people would make disproving those details difficult. Ultimately, the FBI suspected Page was not entirely truthful in his March 2017 interactions with them, and Mueller found that, “Page’s activities in Russia-as described in his emails with the Campaign-were not fully explained.” 

Finally, in addition to the Trump-related allegations about Page in his application, the FBI showed that Page willingly remained a recruitment target of known Russian intelligence officers, shared non-public information (possibly deemed trade secrets) with them, and enthusiastically considered an offer of an “open checkbook” to start a pro-Russian think tank. That’s not enough to prove he was an agent under 18 USC 951, but it probably reaches probable cause in any case. 

I’m not saying any of this is the way it should be — for FISA warrants or traditional criminal warrants. But that’s the way it is. It is virtually guaranteed that if Carter Page had been prosecuted, he would never have been able to challenge his FISA applications and even if he had, he likely would not have succeeded with either a Franks challenge or a Fourth Amendment suppression motion. That suggests that the way FISA works right now raises the bar well further than it already is for criminal defendants to ensure that the searches against them were proper in the first place. 

Update: Corrected post to indicate last contact between Page and CIA was in July 2011.

OTHER POSTS ON THE DOJ IG REPORT

Overview and ancillary posts

DOJ IG Report on Carter Page and Related Issues: Mega Summary Post

The DOJ IG Report on Carter Page: Policy Considerations

Timeline of Key Events in DOJ IG Carter Page Report

Crossfire Hurricane Glossary (by bmaz)

Facts appearing in the Carter Page FISA applications

Nunes Memo v Schiff Memo: Neither Were Entirely Right

Rosemary Collyer Responds to the DOJ IG Report in Fairly Blasé Fashion

Report shortcomings

The Inspector General Report on Carter Page Fails to Meet the Standard It Applies to the FBI

“Fact Witness:” How Rod Rosenstein Got DOJ IG To Land a Plane on Bruce Ohr

Eleven Days after Releasing Their Report, DOJ IG Clarified What Crimes FBI Investigated

Factual revelations in the report

Deza: Oleg Deripaska’s Double Game

The Damning Revelations about George Papadopoulos in a DOJ IG Report Claiming Exculpatory Evidence

A Biased FBI Agent Was Running an Informant on an Oppo-Research Predicated Investigation–into Hillary–in 2016

The Carter Page IG Report Debunks a Key [Impeachment-Related] Conspiracy about Paul Manafort

The Flynn Predication

Sam Clovis Responded to a Question about Russia Interfering in the Election by Raising Voter ID