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On the Two ECs Opening the Investigation into Mike Flynn

A number of people have pointed me to this opinion piece, written by former top FBI guy, Kevin Brock, arguing that the Electronic Communication opening the Crossfire Hurricane investigation proves that the Trump campaign was investigated without justification. It bases that claim on several complaints:

  • It doesn’t fit what Brock deems to be a normal EC because:
    • It doesn’t have a “To” line
    • Peter Strzok both opened and approved it
    • It redacts the names of people who, Brock says, should be more senior than Strzok
  • It opened (Brock says) as a FARA investigation, without explaining why subjects of the investigation are subjects
  • Strzok justified the investigation by saying it served to determine if Trump’s people wittingly or unwittingly were working with Russia, without justifying a FARA investigation

From there, Brock claims that because there’s no articulation tying the evidence to those being investigated, the EC is proof the entire investigation was made up.

Ultimately, there was no attempt by Strzok to articulate any factors that address the elements of FARA. He couldn’t, because there are none. Instead, there was a weak attempt to allege some kind of cooperation with Russians by unknown individuals affiliated with the Trump campaign, again, with no supporting facts listed.

What this FBI document clearly establishes is that Crossfire Hurricane was an illicit, made-up investigation lacking a shred of justifying predication, sprung from the mind of someone who despised Donald Trump, and then blessed by inexperienced leadership at the highest levels who harbored their own now well-established biases.

The piece is more worthwhile than most pieces on the investigation. But there are several problems with it.

First, Brock doesn’t mention what is apparent when reading this document in context (but is not if you’re unfamiliar with the context and ignore the redactions). When you combine the document with what Bill Priestap says the Australian tip included, the document makes clear that George Papadopoulos specifically tied the campaign’s own plans to win the election by using dirt on Hillary Clinton to Russia’s offer to help in the process of using dirt on Hillary to win the election.

Papadopoulos said Trump would win because they had dirt on Hillary and then suggested Russia could “assist this process” — that is, using dirt to win the election — by anonymously releasing information damaging to Hillary.

The “this process” hidden behind the redaction is “using dirt to win the election.” The antecedent of “this process” must be (because that description does not and could not appear anywhere else), using dirt to win the election.

It is, perhaps, a subtle thing. But in context as the FBI received it, Papadopoulos tied Russia anonymously dropping dirt on Hillary to the centrality of dirt on Hillary in the Trump campaign’s plan to win.

Of course, to know that, you’d have to read the DOJ IG Report on Carter Page, which explains how the investigation got opened and specifically addresses some of the items that Brock raises. For example, the report cites multiple people putting the Australian tip in context with the ongoing investigation into the DNC hacks.

According to Priestap, he authorized opening the Crossfire Hurricane counterintelligence investigation on July 31, 2016, based upon these discussions. He told us that the FFG information was provided by a trusted source-the FFGand he therefore felt it “wise to open an investigation to look into” whether someone associated with the Trump campaign may have accepted the reported offer from the Russians. Priestap also told us that the combination of the FFG information and the FBI’s ongoing cyber intrusion investigation of the DNC hacks created a counterintelligence concern that the FBI was “obligated” to investigate.

The report also describes several people involved in the decision whose names remain redacted — the Intel Section Chief and the OGC Unit Chief — who might be the redacted names (as well as Bill Priestap).

It describes why Strzok, and not any case agent, opened the investigation.

After Priestap authorized the opening of Crossfire Hurricane, Strzok, with input from the OGC Unit Chief, drafted and approved the opening EC. 175 Strzok told us that the case agent normally drafts the opening EC for an investigation, but that Strzok did so for Crossfire Hurricane because a case agent was not yet assigned and there was an immediate need to travel to the European city to interview the FFG officials who had met with Papadopoulos.

It explains why the EC didn’t have a subject or subjects.

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.” As the predicating information did not indicate a specific individual, the opening EC did not include a specific subject or subjects. 

Finally, it explains how, with counterintelligence investigations, you might name crimes even when the investigation was into a national security threat.

Crossfire Hurricane was opened by CD and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), 22 U.S.C. § 611, et seq., and 18 U.S.C. § 951 (Agents of Foreign Governments). 170 As described in Chapter Two, the AG Guidelines recognize that activities subject to investigation as “threats to the national security” may also involve violations or potential violations of federal criminal laws, or may serve important purposes outside the ambit of normal criminal investigation and prosecution by informing national security decisions. Given such potential overlap in subject matter, neither the AG Guidelines nor the DIOG require the FBI to differently label its activities as criminal investigations, national security investigations, or foreign intelligence collections.

Note, too, that DOJ IG, after reviewing all this, said the predication of the investigation fell within guidelines for Full Investigations. John Durham — Bill Barr’s designated investigator — did not, but he did say that the predication met the standards of a Preliminary Investigation (which would not have changed any available tools). So in making the argument about this redacted document, Brock is disagreeing not only with DOJ’s IG, but also with Barr’s designated investigator, both of whom have access to unredacted documents.

What’s stranger still is that this piece, dated May 27, doesn’t bother to discuss the opening EC for the Flynn investigation, which was made public on May 7. Consulting it shows, among other things, that DOJ releases documents to Judicial Watch with fewer redactions than they release in their own cases.

It shows that that EC, also, did not include a “To” line.

But it also shows how the individual EC did some of the things Brock claimed had not been done with regards to articulating the investigation, including describing why Flynn was investigated.

The FBI is opening a full investigation based on the articulable factual basis that reasonably indicates that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security. The FBI is predicating the investigation on predetermined criteria set forth by the CROSSFIRE HURRICANE investigative team based on an assessment of reliable lead information received during the course of the investigation. Specifically, CR has been cited as an adviser to the Trump team on foreign policy issues February 2016; he has ties to various state-affiliated entities of the Russian Federation, as reported by open source information; and he traveled to Russia in December 2015, as reported by open source information. Additionally, CR has an active TS/SCI clearance.

The details describe how Flynn accepted multiple paid gigs with Russian quasi-state entities, including a junket to Moscow in December 2015 paid for by one of Russia’s propaganda outlets where he sat next to Vladimir Putin, then months later joined the Trump campaign, all while renewing his security clearance. The Crossfire Hurricane EC laid out the question: Whom would Russia have told they planned to help Trump win the election by dropping dirt on Hillary by providing their own dirt? And the hypothesis in the Crossfire Razor EC is that they might have told that to the guy Russia paid to meet Putin months before he joined the Trump campaign.

In addition, Flynn’s individual EC explains what the FARA designation on the original one, which Brock found so suspicious, means.

The goal of the investigation is to determine whether the captioned subject, associated with the Trump Team, is being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national security and/or possibly a violation of the Foreign Agents Registration Act, 18 U.S.C section 951 et seq, or other related statutes.

That is, the goal wasn’t just busting Flynn in a FARA trap. It also — as virtually every Flynn defender likes to ignore — aimed to make sure he wasn’t secretly working for Russia (which is what it looks like when the incoming National Security Advisor calls up Russia and undermines the punishment imposed on Russia for tampering in the election and then lies about doing so to others in the Administration).

Most importantly, however, one of the goals was to see whether Russia was somehow controlling Flynn. It wasn’t (just) about Flynn. It was about potential harm to the US.

For some reason, Flynn’s defenders never want to talk about the damage it does to the United States when someone conducting an attack on the country gives one side advance notice of it.

There may still be reasons to question how the paperwork in this case was handled — though DOJ IG did not, in this specific case. And I find Brock’s questions more useful than the typical Flynn apology that directly contradicts the public record. But if you’re going to question the paperwork, at least consult all of the paperwork that has been made public.

In a Bid to Remain Relevant, PCLOB Will Treat Carter Page as a Suspected Terrorist

It takes until paragraph 19 of this story on the decision by the Privacy and Civil Liberties Oversight Board to examine Title I FISA processes before it explains why the decision is such an obvious political game.

[PCLOB Chair Adam] Klein said the board plans only to examine counterterrorism matters, which would preclude any review of wiretap applications for Page or any investigation by the FBI of the Trump campaign.

PCLOB’s mandate is limited to counterterrorism. There were efforts to expand its mandate to include counterintelligence as part of Section 215 reauthorization that failed, so Congress has expressed an intent in recent days to limit PCLOB’s mandate to counterterrorism. Which means PCLOB has no mandate to investigate the Carter Page investigation.

But in spite of that limit on PCLOB’s mandate, PCLOB’s Republicans have decided to examine what the story calls DOJ IG’s “findings.”

Adam I. Klein, the chairman of the privacy board, said that the issues Horowitz surfaced were precisely those that the board was established to examine.

“This is at the heartland of our jurisdiction,” said Klein, a lawyer and prominent researcher of FISA and other national security laws. “The IG found systemic compliance problems. At a minimum, we have a duty to inform ourselves.”

Let’s review the posture of DOJ IG’s investigations into FISA-related functions. DOJ IG did an investigation into the Carter Page FISA applications, and found significant problems, both Woods Procedure compliance problems and lack of disclosure of material facts to the court. The way in which FBI first validated and then fact-checked an informant — long cited as a problem by defense attorneys representing counterterrorism defendants — was among the most egregious problems in the Page applications.

The Page investigation is the only finished investigation. That investigation is into a counterintelligence case, and therefore well outside of PCLOB’s mandate.

Based on the findings in that report, DOJ IG set out on an investigation into whether the problems evinced in the Page report are more systematic. As originally scoped, however, that review focused on whether the Woods Procedures–failures in which were not the most urgent or egregious aspect of the Carter Page problems–works. After three months, DOJ IG decided to issue a Management Advisor Memorandum to formally reveal its interim results that show that the Woods Procedures, and the National Security Division’s associated Accuracy Reviews, don’t work.

As a result of these findings, in December 2019, my office initiated an audit to examine more broadly the FBI’s execution of, and compliance with, its Woods Procedures relating to U.S. Persons covering the period from October 2014 to September 2019. As an initial step in our audit, over the past 2 months, we visited 8 FBI field offices of varying sizes and reviewed a judgmentally selected sample of 29 applications relating to U.S. Persons and involving both counterintelligence and counterterrorism investigations. This sample was selected from a dataset provided by the FBI that contained more than 700 applications relating to U.S. Persons submitted by those 8 field offices over a 5-year period. The proportion of counterintelligence and counterterrorism applications within our sample roughly models the ratio of the case types within that total of FBI FISA applications. Our initial review of these applications has consisted solely of determining whether the contents of the FBI’s Woods File supported statements of fact in the associated FISA application; our review did not seek to determine whether support existed elsewhere for the factual assertion in the FISA application (such as in the case file), or if relevant information had been omitted from the application. For all of the FISA applications that we have reviewed to date, the period of courtauthorized surveillance had been completed and no such surveillance was active at the time of our review.

[snip]

As a result of our audit work to date and as described below, we do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy.

[snip]

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.

The statistics provided in the MAM reveal that, with respect to Woods Procedures, Carter Page’s FISA applications were actually far better than all but one of the applications DOJ IG reviewed.

But the MAM is not a finished review and, aside from a passing reference to FBI’s failures to document informant reliability, hasn’t focused on issues known to be problematic in FISA applications targeting counterterrorism suspects.

Meanwhile, PCLOB plans to use its mandate to review counterterrorism programs to demand a list of prominent individuals targeted under FISA for the period of the DOJ IG review, 2015 to 2019.

The board will also request the number of investigations touching on prominent individuals in which the FBI sought an order from the surveillance court between 2015 and 2019. Those investigations, which the bureau defines as sensitive investigative matters, may include public officials or candidates for office, according to Justice Department guidelines.

As far as is public there have been zero prominent individuals known to be targeted under FISA. Carter Page — an unknown advisor with no institutional affiliation in DC — certainly didn’t qualify when he was targeted. (I can think of one person investigated as part of the Russian investigation who is a key influence peddler in DC who might have been targeted, but the person is not nationally known outside of political circles.)

There have, however, been key leaders in the Muslim community — who are virtually unknown outside of the Muslim or civil liberties community — targeted under FISA, per one of the most important reports to come out of the Snowden leaks (though before the period of PCLOB’s review).

• Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;

• Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;

• Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;

• Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;

• Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.

PCLOB probably can’t access this list because its members all have clearance, but this is where you’d start to understand the First Amendment impact of FISA on counterterrorism subjects, not by asking for a list of all the prominent people more likely to be targeted under counterintelligence.

Don’t get me wrong. If this PCLOB review were credible, I’d welcome it. If PCLOB’s mandate actually matched the scope of FISA, it could be a welcome new check on the authority.

But, as I noted in a post on some of the efforts to reform FISA legislatively, because PCLOB’s mandate does not cover some of the FISA practices of most concern, it is useless as an oversight body.

One would imagine that Carter Page, whom the Republicans think was targeted because he volunteered for the Trump campaign, would be among the people bill drafters had in mind for First Amendment protect activities.

Except he wouldn’t be included, for two reasons.

First, PCLOB’s mandate is limited to counterterrorism programs. That didn’t matter for their very good Section 215 report, because they were examining only the CDR program, which itself was limited to terrorism (and Iran).

But it did matter for the Section 702 report. In fact, PCLOB ignored some of the most problematic practices under Section 702, conducted under the guise of cybersecurity, because that’s outside their mandate! It also didn’t explore the impact of NSA’s too-broad definition of targeting under the Foreign Government certificate.

In this case, unless you expand the scope of PCLOB, then this report would only report on the targets of terrorism FISA activity, not foreign intelligence FISA activity, and so not people like Carter Page.

I was told by a key congressional negotiator that expanding PCLOB’s mandate to match FISA (that is, to include counterintelligence and foreign cyber investigations) would kill the bill. Mind you, the bill died overnight anyway, in part because Trump and his supporters want something that more directly feels like a response to the Carter Page applications.

Particularly given that FISA remains under active legislative debate, then, PCLOB would be much better served by arguing that their mandate needs to be expanded to cover all national security investigations, citing their inability to review what happened to Carter Page without overstepping their mandate.

Instead, they appear intent on overstepping their mandate.

Update: In a response to some questions from PCLOB’s press person, it appears PCLOB may misunderstand the results of DOJ IG’s interim findings. PCLOB appears to believe that DOJ IG has found material problems with the 29 files it reviewed, rather than Woods Procedures violations that it has not yet determined to be material.

As you’re aware, the most recent DoJ IG examination found problems with all 29 FISA applications it examined, many of which were for counterterrorism. Of these 29, the Board has requested only those applications that were related to counterterrorism.

The IG’s findings are troubling and suggest systematic shortcomings, with serious implications for Americans’ privacy and civil liberties.

It also appears to believe the FISA mandate to involve PCLOB would permit PCLOB to meaningfully address First Amendment issues even though it could not address many of the problems disproportionately affecting Americans.

Finally, as you may know, the House draft of the USA FREEDOM Act reauthorization bill includes a provision that directs the Board to examine whether activities protected under the First Amendment have any impact on the FISA process.  Should the bill ultimately pass Congress and be signed into law, the forum would help inform Board members on that project as well.

Barr’s Micro-Management of the Durham Investigation May Demolish the Premise of Flynn Motion to Dismiss

American Oversight FOIAed records of contacts between Bill Barr and John Durham, whom Barr has ordered to conduct an investigation to undermine the Russian investigation. While there’s no evidence that all of these meetings pertained to the investigation Barr ordered up, they span the period (but start earlier than) when Barr said he was communicating to Durham about the investigation.

People from Barr’s office met with Durham 18 times between March 25 and October 17, 2019. That doesn’t include the trip to Rome Durham and Barr took together last fall.

That is an astounding level of micro-management from an Attorney General.

That — plus records of a meeting on April 12, 2019 where Barr’s aide Seth DuCharme described for DOJ Inspector General Michael Horowitz what he and Durham were working on — may well demolish the premise of DOJ’s Motion to Dismiss the Flynn prosecution.

As I have noted, DOJ adopted a radically different view on both the legitimacy of the investigation into Flynn and the materiality of his lies in submissions filed under Bill Barr last fall and this January than what DOJ argued in the Motion to Dismiss. The only excuse provided — without any kind of declaration to substantiate the claim — was that DOJ had discovered “new” information that made it rethink its past position.

That claim was always sketchy, not least because Judge Emmet Sullivan had actually reviewed some of the most important documents released with the motion. Moreover, FBI already issued a public statement making it clear those documents were not new. In fact, the Bureau had already shared them with both Horowitz’s and Durham’s investigations.

With regard to certain documents in the Michael Flynn matter from the 2016-2017 time period that are now the subject of reporting by the press, the FBI previously produced those materials to the Inspector General and U.S. Attorney Durham,” the FBI said.

If Sullivan and his newly appointed amicus, John Gleeson, acquire information that proves, definitively, that this information was not new to the Flynn prosecution supervisors, up to and including Barr, it may mean DOJ is estopped from adopting its current position because, effectively, having had those documents already, DOJ already committed to the opposite position.

These records provide Gleeson a road map to discover precisely who in the Office of Attorney General was micro-managing Durham’s investigation, including his receipt of documents that Barr’s office now claims (almost certainly falsely) were new to them.

That is, this FOIA response provides the skeleton of the kind of proof that Gleeson can use to argue that DOJ is prohibited from adopting its current stance, because they have no excuse for flip-flopping on a position already adopted in this case.

Cross Filings: NSD Figures Out How Woods Procedures Are Supposed to Work

JustSecurity has an odd panel on FISA yesterday reviewing the DOJ IG Memo showing that Carter Page’s FISA applications were actually better than average with respect to compliance with Woods Procedures. It includes Andrew McCabe (who signed the last, most problematic, Carter Page application) and Mary McCord (who was involved in the review process for three of the applications, and even told McCabe they needed more information on Christopher Steele before the first one), but it doesn’t disclose their roles in the process. It also doesn’t include defense attorneys among its experts, who might provide more context about problems identified with FISA long before the Page investigation.

I’m particularly interested in McCord’s comments. She likens this to what happened in the wake of Brady v Maryland, and then again in the wake of Ted Stevens’ trial, as prosecutors came to a more proactive view on discovery (she doesn’t explain how prosecutors fucked up so badly on the Stevens case if any cultural change had really happened).

While I applaud McCord for taking a more skeptical view of the Page surveillance at several points (as described in the DOJ IG Report), her focus on Brady and her confidence in cultural change is misplaced, in my opinion.

As bmaz would and has been screaming, Brady isn’t actually the standard here. Franks is. He has argued that the affidavits targeting Page would never have reached the standard under Franks, and thus if Page were treated like any other defendant (of course, he was never charged), these affidavits would have passed muster.

I would respond to bmaz that you’d never even get to a Franks hearing because no defendant has ever gotten review of their application. Now that Ric Grenell has declassified the bulk of Carter Page’s applications, it should be far easier to declassify applications going forward. Liza Goitein included providing review to defendants among her recommendations for reforms next month, but none of the other panelists did.

But all the panelists seem to have missed something that happened at the same time as the memo was released. As I noted in my own review of the MAM, NSD (which McCord led for a key period during which Page was surveilled) has been doing their reviews in such a way as to make the Woods Procedures useless. They were giving FBI Agents four weeks advance notice before conducting a review, which meant they never did what DOJ IG did — see whether the FISA file had the paperwork that under the Woods Procedure it should have.

Before any of these reviews happen, the field offices are told which applications will be reviewed, which gives the case agents a chance to pull together the documentary support for the application.

Thus, prior to the FBI CDC or NSD OI review, field offices are given advance notification of which FISA application(s) will be reviewed and are expected to compile documentary evidence to support the relevant FISA.

If the Woods Procedures were being followed, it should never be the case that the FBI needs to compile documentary evidence before the review; the entire point of it is it ensure the documentary evidence is in the file before any application gets submitted. Once you discover that all the FBI and OI reviews get advance notice, you’re not really reviewing Woods Procedures, it seems to me, you’re reviewing paperwork accuracy.

[snip]

To check the accuracy of the Woods Files, they should with no notice obtain a subset of them, as DOJ IG just did, and see whether the claims in the report are documented in the Woods File, and only after that do their onsite reviews (with notice, to see if there was documentation somewhere that had not been included in the file). That might actually be a better way of identifying where there might be other kinds of problems with the application.

It turns out, on the same day that DOJ IG released their MAM, NSD submitted a FISA filing updating James Boasberg on what they’re doing with reviews.

The panel deals with the DOJ IG Management Advisory Memorandum showing that Carter Page’s applications were in no way unique, with regards to Woods Procedure violations; in fact, his application had fewer Woods Procedure violations, on average, than the 29 applications DOJ IG reviewed. Much of the discussion focuses on

The results (rightly) look really stinky for the FBI. But in fact, the MAM revealed that NSD — McCord’s old department, which thus far had (possibly for jurisdictional reasons) avoided most criticism for FISA — was conducting reviews that made the Woods Files largely useless as an oversight tool (and therefore as a guarantee of accuracy). That’s because Office of Intelligence has been giving FBI Field Offices four weeks advance warning about which files they’re going to review.

DOJ IG describes its finding that these results aren’t being used in better fashion.

(4) FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

At least given their description, however, I think they’ve found something else. They’ve confirmed that — contrary to DOJ’s description to FISC that,

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.

OI is actually only doing the latter part, measuring the accuracy of the facts in an applicable FISA application. To check the accuracy of the Woods Files, they should with no notice obtain a subset of them, as DOJ IG just did, and see whether the claims in the report are documented in the Woods File, and only after that do their onsite reviews (with notice, to see if there was documentation somewhere that had not been included in the file).

As I lay out in a timeline below, DOJ was submitting a response to the FISA Court on April 3, even as DOJ IG was releasing its MAM. In that response (therefore three days before my post), they said they’d stop giving advance notice for the accuracy reviews, which will make Woods Procedures newly useful.

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. Agents will still be given the opportunity to gather such documentation during or after the accuracy review, so that NSD can assess if the application contains any inaccuracies with respect to the application’s content. NSD will include these additional findings in its summaries of accuracy reviews (discussed herein) and also will include such findings in its biannual reports to the Court regarding its accuracy and completeness review findings. NSD assesses that by implementing this additional metric, it will encourage case agents to be more vigilant about adhering to the FBI’s accuracy· procedures.

It’s rare that a bureaucracy of any sort — much less government, much less part of government that pertains to national security — recognizes that its paperwork isn’t serving the function it is supposed to. But here, even though DOJ IG didn’t make this observation, NSD figured it out and committed to change their processes.

There are more comments about NSD’s review processes that deserve more attention. For example, I said that NSD should start reporting the results of its accuracy (and the new completeness) reviews in its Semiannual FISA Reports (which currently focus only on 702). As part of a seeming effort to rebut Amicus David Kris’ comment that DOJ has the resources to do oversight right, the filing suggested that other oversight obligations take up too much time to dedicate more time to traditional FISA reviews (though NSD did increase attorney resources in OI’s oversight section by 50%).

(U) OI’s Oversight Section, which is responsible for oversight and compliance relating to the IC’s implementation of FISA authorities, currently has approximately 20 attorneys and must rely on assistance from the Operations Section of OI to staff the existing accuracy reviews. Moreover, OI’s Oversight Section conducts oversight of other FISA authorities, including at other IC agencies, and conducts oversight of FBI’s implementation of its Attorney General’s Guidelines for Domestic FBI Operations. The latter involves conducting onsite National Security Reviews at approximately 15 FBI field offices annually. In addition, OI’s oversight and compliance responsibilities with respect to the IC’s implementation of Section 702 consumes substantial OI resources. 14 Furthermore, the Oversight Section fulfills statutorily-required reporting obligations to Congress on behalf of the Department. These reports, which describe, in detail, the Government’s use of FISA authorities and all identified compliance incidents, run hundreds of pages in the aggregate and most must be completed twice a year. As the Court is aware, the Oversight Section also investigates and reports to the Court all FISA compliance incidents involving IC agencies. Additionally, among other responsibilities, the Oversight Section prepares quarterly reports for the Court to inform the Court about certain Section 702 compliance incidents and provide updates on previously reported Section 702 compliance incidents. The Oversight Section also conducts onsite reviews at multiple IC agencies.

It seems like this process could be more streamlined, though. It also seems like you don’t need attorneys to do all these reviews. Accuracy and completeness are not legal issues, they’re reading issues.

Ultimately, the way to ensure that smart changes by NSD actually have the desired effect is to give any defendant against whom FISA information is used in prosecution review of his or her FISA file. But it remarkable to see that McCord’s successor, John Demers, is actually making the kinds of changes that could make the Woods Files function the way they’ve been supposed to for two decades.

Timeline

  • March 23: FBI Associate Deputy Director of FBI reponds to draft MAM
  • March 27: Associate Deputy Attorney General Brad Weinsheimer responds to draft MAM
  • March 30: DOJ IG completes a Management Advisory Memorandum on it efforts to clean up FISA
  • March 31: DOJ IG publicly releases the MAM
  • April 3: James Boasberg orders the government to report whether errors found in the 29 applications that DOJ IG reviewed are material
  • April 3: DOJ National Security Division submits Response to March 5 order incorporating changes to Woods Procedure reviews
  • April 6: I point out that NSD should change how they do Woods Procedure reviews

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.

Like All Else, Trump’s Inspector General Turnover Is about Pandemic

Update: I’m republishing this and bumping it, because Trump just replaced Glenn Fine as Acting Inspector General — whom Michael Horowitz had named to head the Pandemic Response Accountability Committee — with the IG for EPA. This makes him ineligible to head PRAC. Fine will remain Principle Deputy IG. 

Late last night, President Trump fired the Intelligence Community Inspector General Michael Atkinson, the Inspector General who alerted Congress of the whistleblower complaint that led to Trump’s impeachment. Trump effectively put Atkinson on administrative leave for 30 days in a move that skirts the legal requirement that an inspector general be fired for cause and Congress be notified of it.

Trump has been accused of firing Atkinson late at night on a Friday under cover of the pandemic to retaliate for the role Atkinson had — which consisted of nothing more than doing his job as carefully laid out by law — in Trump’s impeachment. It no doubt is.

But it’s also likely about the pandemic and Trump’s proactive attempts to avoid any accountability for his failures in both the pandemic response and the reconstruction from it.

There were a lot of pandemic warnings Trump ignored that he wants to avoid becoming public

I say that, first of all, because of the likelihood that Trump will need to cover up what intelligence he received, alerting him to the severity of the coming pandemic. Trump’s administration was warned by the intelligence community no later than January 3, and a month later, that’s what a majority of Trump’s intelligence briefings consisted of. But Trump didn’t want to talk about it, in part because he didn’t believe the intelligence he was getting.

At a White House briefing Friday, Health and Human Services Secretary Alex Azar said officials had been alerted to the initial reports of the virus by discussions that the director of the Centers for Disease Control and Prevention had with Chinese colleagues on Jan. 3.

The warnings from U.S. intelligence agencies increased in volume toward the end of January and into early February, said officials familiar with the reports. By then, a majority of the intelligence reporting included in daily briefing papers and digests from the Office of the Director of National Intelligence and the CIA was about covid-19, said officials who have read the reports.

[snip]

Inside the White House, Trump’s advisers struggled to get him to take the virus seriously, according to multiple officials with knowledge of meetings among those advisers and with the president.

Azar couldn’t get through to Trump to speak with him about the virus until Jan. 18, according to two senior administration officials. When he reached Trump by phone, the president interjected to ask about vaping and when flavored vaping products would be back on the market, the senior administration officials said.

On Jan. 27, White House aides huddled with then-acting chief of staff Mick Mulvaney in his office, trying to get senior officials to pay more attention to the virus, according to people briefed on the meeting. Joe Grogan, the head of the White House Domestic Policy Council, argued that the administration needed to take the virus seriously or it could cost the president his reelection, and that dealing with the virus was likely to dominate life in the United States for many months.

Mulvaney then began convening more regular meetings. In early briefings, however, officials said Trump was dismissive because he did not believe that the virus had spread widely throughout the United States.

In that same period, Trump was demanding Department of Health and Human Service Secretary Alex Azar treat coronavirus briefings as classified.

The officials said that dozens of classified discussions about such topics as the scope of infections, quarantines and travel restrictions have been held since mid-January in a high-security meeting room at the Department of Health & Human Services (HHS), a key player in the fight against the coronavirus.

Staffers without security clearances, including government experts, were excluded from the interagency meetings, which included video conference calls, the sources said.

“We had some very critical people who did not have security clearances who could not go,” one official said. “These should not be classified meetings. It was unnecessary.”

The sources said the National Security Council (NSC), which advises the president on security issues, ordered the classification.”This came directly from the White House,” one official said.

Now, it could be that this information was legitimately classified. But if so, it means Trump had even more — and higher quality — warning of the impending pandemic than we know. If not, then it was an abuse of the classification process in an attempt to avoid having to deal with it. Either one of those possibilities further condemns Trump’s response.

Also in this same period, then Director of National Intelligence Joseph Maguire was asking not to hold a public Worldwide Threats hearing because doing so would amount to publicly reporting on facts that the President was in denial about.

The U.S. intelligence community is trying to persuade House and Senate lawmakers to drop the public portion of an annual briefing on the globe’s greatest security threats — a move compelled by last year’s session that provoked an angry outburst from President Donald Trump, multiple sources told POLITICO.

Officials from the Office of the Director of National Intelligence, on behalf of the larger clandestine community, don’t want agency chiefs to be seen on-camera as disagreeing with the president on big issues such as Iran, Russia or North Korea, according to three people familiar with preliminary negotiations over what’s known as the Worldwide Threats hearing.

The request, which is unlikely to be approved, has been made through initial, informal conversations at the staff level between Capitol Hill and the clandestine community, the people said.

Not only did that hearing never happened, but neither has a report been released.

Among the things then Director of National Intelligence Dan Coats warned of in last year’s hearing was the threat of a pandemic.

We assess that the United States and the world will remain vulnerable to the next flu pandemic or large-scale outbreak of a contagious disease that could lead to massive rates of death and disability, severely affect the world economy, strain international resources, and increase calls on the United States for support. Although the international community has made tenuous improvements to global health security, these gains may be inadequate to address the challenge of what we anticipate will be more frequent outbreaks of infectious diseases because of rapid unplanned urbanization, prolonged humanitarian crises, human incursion into previously unsettled land, expansion of international travel and trade, and regional climate change.

So to some degree, Trump has to make sure there’s no accountability in the intelligence community because if there is, his failure to prepare for the pandemic will become all the more obvious.

Richard Burr is incapable of defending the Intelligence Community right now

But it’s also the case that the pandemic — and the treatment of early warnings about it — may have created an opportunity to retaliate against Atkinson when he might not have otherwise been able to. Even beyond offering cover under the distraction of thousands of preventable deaths, the pandemic, and Senate Intelligence Committee Chair Richard Burr’s success at profiting off it, means that the only Republican who might have pushed back against this action is stymied.

On Sunday, multiple outlets reported that DOJ is investigating a series of stock trades before most people understood how bad the pandemic would be. Burr is represented by former Criminal Division head Alice Fisher — certainly the kind of lawyer whose connections and past white collar work would come in handy for someone trying to get away with corruption.

The Justice Department has started to probe a series of stock transactions made by lawmakers ahead of the sharp market downturn stemming from the spread of coronavirus, according to two people familiar with the matter.

The inquiry, which is still in its early stages and being done in coordination with the Securities and Exchange Commission, has so far included outreach from the FBI to at least one lawmaker, Sen. Richard Burr, seeking information about the trades, according to one of the sources.

[snip]

Burr, the North Carolina Republican who heads the Senate Intelligence Committee, has previously said that he relied only on public news reports as he decided to sell between $628,000 and $1.7 million in stocks on February 13. Earlier this month, he asked the Senate Ethics Committee to review the trades given “the assumption many could make in hindsight,” he said at the time.

There’s no indication that any of the sales, including Burr’s, broke any laws or ran afoul of Senate rules. But the sales have come under fire after senators received closed-door briefings about the virus over the past several weeks — before the market began trending downward. It is routine for the FBI and SEC to review stock trades when there is public question about their propriety.

In a statement Sunday to CNN, Alice Fisher, a lawyer for Burr, said that the senator “welcomes a thorough review of the facts in this matter, which will establish that his actions were appropriate.”

“The law is clear that any American — including a Senator — may participate in the stock market based on public information, as Senator Burr did. When this issue arose, Senator Burr immediately asked the Senate Ethics Committee to conduct a complete review, and he will cooperate with that review as well as any other appropriate inquiry,” said Fisher, who led the Justice Department’s criminal division under former President George W. Bush.

In spite of Fisher’s bravado, Burr is by far the most legally vulnerable of the senators who dumped a lot of stock in the period. That’s partly because he had access to two streams of non-public reporting on the crisis, the most classified on SSCI (which Senator Feinstein also would have had), but also on the Health, Education, Labor, and Pensions committee. And unlike the other senators, Burr admitted that he made these trades himself.

Again, in spite of Fisher’s claims, Burr will be forced to affirmatively show that he didn’t rely on this non-public information when dumping an inordinate amount of stock.

All of which is to say that Burr may be hoping that Fisher can talk him out of any legal exposure, which will require placating the thoroughly corrupt Bill Barr.

I had already thought that Trump might use this leverage to influence the findings or timing of the remaining parts of SSCI’s Russian investigation. That’s all the more true of Atkinson’s firing. Thus far, Burr has remained silent on what is obviously a legally inappropriate firing.

Even as he fired Atkinson, Trump undermined any oversight of his pandemic recovery efforts

A week before firing Atkinson, Trump made it clear he had no intention of being bound by Inspectors General in his signing statement for the “CARES Act” recovery bill. In addition to stating that Steve Mnuchin could reallocate spending without prior notice to Congress (as required by the bill and the Constitution), Trump also undercut both oversight mechanisms in the law. He did so by suggesting that the Chairperson of Council of the Inspectors General on Integrity and Efficiency (who is DOJ’s Inspector General Michael Horowitz) should not be required to consult with Congress about who he should make Director and Deputy Director of the Pandemic Response Accountability Committee.

Section 15010(c)(3)(B) of Division B of the Act purports to require the Chairperson of the Council of the Inspectors General on Integrity and Efficiency to consult with members of the Congress regarding the selection of the Executive Director and Deputy Executive Director for the newly formed Pandemic Response Accountability Committee. The Committee is an executive branch entity charged with conducting and coordinating oversight of the Federal Government’s response to the coronavirus outbreak. I anticipate that the Chairperson will be able to consult with members of the Congress with respect to these hiring decisions and will welcome their input. But a requirement to consult with the Congress regarding executive decision-making, including with respect to the President’s Article II authority to oversee executive branch operations, violates the separation of powers by intruding upon the President’s power and duty to supervise the staffing of the executive branch under Article II, section 1 (vesting the President with the “executive Power”) and Article II, section 3 (instructing the President to “take Care” that the laws are faithfully executed). Accordingly, my Administration will treat this provision as hortatory but not mandatory.

On Monday, Horowitz named DOD Acting Inspector General Glenn Fine Director of PRAC.

In appointing Mr. Fine to Chair the PRAC, Mr. Horowitz stated, “Mr. Fine is uniquely qualified to lead the Pandemic Response Accountability Committee, given his more than 15 years of experience as an Inspector General overseeing large organizations — 11 years as the Department of Justice Inspector General and the last 4 years performing the duties of the Department of Defense Inspector General. The Inspector General Community recognizes the need for transparency surrounding, and strong and effective independent oversight of, the federal government’s spending in response to this public health crisis. Through our individual offices, as well as through CIGIE and the Committee led by Mr. Fine, the Inspectors General will carry out this critical mission on behalf of American taxpayers, families, businesses, patients, and health care providers.”

Last night, however, after years of leaving DOD’s IG position vacant, Trump nominated someone who has never managed the an office like DOD’s Inspector General, which oversees a budget larger than that of many nation-states, and who is currently at the hyper-politicized Customs and Border Patrol.

Jason Abend of Virginia, to be Inspector General, Department of Defense.

Mr. Abend currently serves as Senior Policy Advisor, United States Customs and Border Protection.

Prior to his current role, Mr. Abend served in the Federal Housing Finance Agency’s Office of Inspector General as a Special Agent. Before that, he served as a Special Agent in the Department of Housing and Urban Development’s Office of Inspector General, where he led a team investigating complex Federal Housing Administration mortgage and reverse mortgage fraud, civil fraud, public housing assistance fraud, and internal agency personnel cases.

Mr. Abend was also the Founder and CEO of the Public Safety Media Group, LLC, a professional services firm that provided strategic and operational human resources consulting, training, and advertising to Federal, State, and local public safety agencies, the United States Military, and Intelligence agencies.

Earlier in his career, Mr. Abend worked as a Special Agent at the United States Secret Service and as an Intelligence Research Specialist at the Federal Bureau of Investigation.

Mr. Abend received his bachelor’s degree from American University and has received master’s degrees from both American University and George Washington University.

Abend seems totally unqualified for the DOD job alone, but if he is confirmed, he would also make Fine ineligible to head PRAC.

Horowitz issued a statement on Atkinson’s firing today that emphasized that Atkinson had acted appropriately with the Ukraine investigation, as well as his intent to conduct rigorous oversight, including — perhaps especially — PRAC.

Inspector General Atkinson is known throughout the Inspector General community for his integrity, professionalism, and commitment to the rule of law and independent oversight. That includes his actions in handling the Ukraine whistleblower complaint, which the then Acting Director of National Intelligence stated in congressional testimony was done “by the book” and consistent with the law. The Inspector General Community will continue to conduct aggressive, independent oversight of the agencies that we oversee. This includes CIGIE’s Pandemic Response Accountability Committee and its efforts on behalf of American taxpayers, families, businesses, patients, and health care providers to ensure that over $2 trillion dollars in emergency federal spending is being used consistently with the law’s mandate.

Also in last week’s signing statement, Trump said he would not permit an Inspector General appointed to oversee the financial side of the recovery to report to Congress when Treasury refuses to share information.

Section 4018 of Division A of the Act establishes a new Special Inspector General for Pandemic Recovery (SIGPR) within the Department of the Treasury to manage audits and investigations of loans and investments made by the Secretary of the Treasury under the Act. Section 4018(e)(4)(B) of the Act authorizes the SIGPR to request information from other government agencies and requires the SIGPR to report to the Congress “without delay” any refusal of such a request that “in the judgment of the Special Inspector General” is unreasonable. I do not understand, and my Administration will not treat, this provision as permitting the SIGPR to issue reports to the Congress without the presidential supervision required by the Take Care Clause, Article II, section 3.

That may not matter now, because Trump just nominated one of the lawyers who just helped him navigate impeachment for that SIGPR role.

Brian D. Miller of Virginia, to be Special Inspector General for Pandemic Recovery, Department of the Treasury.

Mr. Miller currently serves as Special Assistant to the President and Senior Associate Counsel in the Office of White House Counsel. Prior to his current role, Mr. Miller served as an independent corporate monitor and an expert witness. He also practiced law in the areas of ethics and compliance, government contracts, internal investigations, white collar, and suspension and debarment. Mr. Miller has successfully represented clients in government investigations and audits, suspension and debarment proceedings, False Claims Act, and criminal cases.

Mr. Miller served as the Senate-confirmed Inspector General for the General Services Administration for nearly a decade, where he led more than 300 auditors, special agents, attorneys, and support staff in conducting nationwide audits and investigations. As Inspector General, Mr. Miller reported on fraud, waste, and abuse, most notably with respect to excesses at a GSA conference in Las Vegas.

Mr. Miller also served in high-level positions within the Department of Justice, including as Senior Counsel to the Deputy Attorney General and as Special Counsel on Healthcare Fraud. He also served as an Assistant United States Attorney in the Eastern District of Virginia, where he handled civil fraud, False Claims Act, criminal, and appellate cases.

Mr. Miller received his bachelor’s degree from Temple University, his juris doctorate from the University of Texas, and his Master of Arts from Westminster Theological Seminary.

To be fair, unlike Abend, Miller is absolutely qualified for the SIGPR position (which means he’ll be harder to block in the Senate). But by picking someone who has already demonstrated his willingness to put loyalty ahead of the Constitution, Trump has provided Mnuchin one more assurance that he can loot the bailout with almost no oversight.

The Scope of DOJ IG’s FISA Review

A seeming millennium ago, last Tuesday, DOJ’s Inspector General released a Management Advisory Memo describing the interim results of its effort to assess whether problems identified in Carter Page’s FISA application were unique, or reflected a more general problem with FISA. Based on the results from two prongs of DOJ IG’s ongoing investigation, DOJ IG believed they needed to alert FBI right away of their preliminary results in hopes they would inform FBI’s efforts to fix this and to offer two additional recommendations on top of the ones they made in December.

Unsurprisingly, a bunch of mostly right wingers have misrepresented the MAM. I wanted to use this post to explore what the MAM shows about the two prongs of investigation, the significance of the results, and the review of FISA generally. As a bonus track, I’ll talk about what role Intelligence Community Inspector General Michael Atkinson, who was fired on Friday, did not have in the FISA application reviews discussed in the MAM, contrary to what a bunch of wingnuts are claiming to justify his firing.

The universe of FISA

Before getting into what the review showed, some background on the universe of FISA may be helpful.

Both prongs of DOJ IG’s investigation examine probable cause FISA applications from 8 FBI offices submitted over the 5 year period ending last September (the end of Fiscal Year 2019).

The last three years’ transparency reports from the Office of Director of National Intelligence have broken down how many of the probable cause FISA applications were known to target US persons. While there’s been some flux in the number of total probable cause applications, the ones targeting US persons have been going down (perhaps not coincidentally, as scrutiny of the process has increased), from 336 in CY 2016 to 232 in CY 2018.

Using 300 applications targeting US persons as an estimate, that says for the 5-year period DOJ IG is examining, there would have been roughly 1,500 that targeted US persons. The MAM says that the 8 offices included in the review thus far submitted more than 700 FISA applications “relating to U.S. Persons.”

The FBI has 56 field offices. Some states (CA, TX, FL, NY, PA) have multiple FBI offices. Some offices cover multiple states.

In any given year, National Security Division’s Office of Intelligence only does FISA reviews in a fraction of the FBI offices — 25-30, per a recent court filing (FISA 702 reviews covered a smaller number of offices during the early years of the 5-year period, but it’s unclear whether NSD does the reviews at the same time). A James Boasberg opinion on 702 reauthorization from last year confirmed that, “OI understandably devotes more resources to offices that use FISA authorities more frequently.”  That would presumably include DC, NY, and LA (all of which are big enough to be led by an Assistant Director). Cities with large numbers of Chinese-Americans (like SF) or Muslims (like Minneapolis and Detroit) likely do disproportionately more FISA than other large city offices, and I assume offices in TX and FL do a lot as well.

Prong One: Reviewing Woods Files

DOJ IG described that one prong of their review — their own review of Woods Files — involved visiting those 8 field offices “of varying sizes” and reviewing “judgmentally selected sample” of 29 applications to review.

over the past 2 months, we visited 8 FBI field offices of varying sizes and reviewed a judgmentally selected sample of 29 applications relating to U.S. Persons and involving both counterintelligence and counterterrorism investigations. This sample was selected from a dataset provided by the FBI that contained more than 700 applications relating to U.S. Persons submitted by those 8 field offices over a 5-year period.

Between them, those 8 field offices submitted 700 applications in the 5-year period studied, which says that even with some smaller offices included, the field offices still submitted almost half of the US person applications in the period (meaning DOJ IG likely included at least a few of the biggest offices).

This review is ongoing. But thus far, assuming my 1,500 estimate is fair, DOJ IG reviewed around 2% of the applications submitted by the FBI, or 4% of those submitted by these offices. By definition, those 29 files could not have included an application from each office for each year.

For each of these 29 applications, DOJ IG reviewed the Woods File associated with the application to see if there was, as intended, back-up for each of the factual claims in the application; that’s all they’ve done so far. This prong of the review was a strictly paperwork review: DOJ IG did not review whether the claims in the application could be backed up elsewhere, or if there were things in the case file targeting a person that should have been included in the application (which was actually the far bigger problem in the Carter Page applications).

[I]nitial review of these applications has consisted solely of determining whether the contents of the FBI’s Woods File supported statements of fact in the associated FISA application; our review did not seek to determine whether support existed elsewhere for the factual assertion in the FISA application (such as in the case file), or if relevant information had been omitted from the application.

But they didn’t have to keep reviewing to conclude that Woods Files are not functioning like they’re supposed to. Not only was there not a Woods File for 4 of the applications, but the remaining 25 all had problems.

(1) we could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has not been able to locate them and, in 3 of these instances, did not know if they ever existed; (2) our testing of FISA applications to the associated Woods Files identified apparent errors or inadequately supported facts in all of the 25 applications we reviewed, and interviews to date with available agents or supervisors in field offices generally have confirmed the issues we identified;

[snip]

[F]or all 25 FISA applications with Woods Files that we have reviewed to date, we 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. While our review of these issues and follow-up with case agents is still ongoing—and we have not made materiality judgments for these or other errors or concerns we identified—at this time we have identified an average of about 20 issues per application reviewed, with a high of approximately 65 issues in one application and less than 5 issues in another application.

By comparison, DOJ IG found just 8 Woods File errors in the first Carter Page application and 16 in last two, most problematic, renewals (see PDF 460-465). So the applications DOJ IG reviewed were, on average, worse than the Page application with respect to the Woods compliance.

These applications also didn’t all have the required paperwork from an informant’s handling agent — though in some cases, the agent was the same.

About half of the applications we reviewed contained facts attributed to CHSs, and for many of them we found that the Woods File lacked documentation attesting to these two requirements. For some of these applications, the case agent preparing the FISA application was also the handling agent of the CHS referenced in the application, and therefore would have been familiar with the information in CHS files.

It’s actually somewhat notable that just half of this very small sample of applications included information from an informant. And only some of these files were lacking the required paperwork for informants. That suggests, to the degree that the FISA application might hide problems with informants that otherwise might have been found in a criminal warrant affidavit (though even there, FBI has a lot of ways to protect these details), that may not be as big of a problem as defense attorneys have suspected (though that’s an area where I’d expect bigger problems on the CT side than the CI one).

The findings on the third problem identified in the Carter Page applications — that the Woods File did not get a fresh review with each application — are less definitive.

based on the results of our review of two renewal files, as well as our discussions with FBI agents, it appears that the FBI is not consistently re-verifying the original statements of fact within renewal applications. In one instance, we observed that errors or unsupported information in the statements of fact that we identified in the initial application had been carried over to each of the renewal applications. In other instances, we were told by the case agents who prepared the renewal applications that they only verified newly added statements of fact in renewal applications because they had already verified the original statements of fact when submitting the initial application.

This could represent as few as 3 of the 25 files for which there were Woods Files.

In any case, the larger point seems to be the more important one: the FBI has not been using Woods Files like they’re supposed to, making sure that the paperwork to back up any claim made in a FISA application actually reflects the underlying documentation and thereby making sure the claims they make to the FISC are valid.

Presiding FISA Judge James Boasberg issued an order today, requiring the government to figure out whether any of the problems identified in this review were material, with an emphasis on the 4 applications for which there was no Woods File.

Reviewing Accuracy Reviews

As noted, the FBI has not been using Woods Files like they’re intended to be used. But neither is DOJ’s National Security Division.

The other part of DOJ IG’s audit involved reviewing the Accuracy Reviews done by the FBI and NSD as part of the existing FISA oversight process.

There are two kinds of Accuracy Reviews done as part of FISA oversight. First, the FBI requires that lawyers in its field offices review at least one application a year.

FBI requires its Chief Division Counsel (CDC) in each FBI field office to perform each year an accuracy review of at least one FISA application from that field office.

As noted below, these are sent to FBI OGC. NSD’s Office of Intelligence doesn’t get them.

In addition, NSD OI does their own reviews for a subset of offices.

Similarly, NSD’s Office of Intelligence (OI) conducts its own accuracy review each year of at least 1 FISA application originating from each of approximately 25 to 30 different FBI field offices.

Remember there are 56 field offices and roughly 300 US person applications. So in practice, IO could review as few as 8% of the applications in a given year (though it’s probably more than that).

Here’s how DOJ described the OI reviews to FISC in December.

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 of FISA 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).

(U) 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. 6

5 (U) 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. See 2009 Memorandum at 3.

6 (U) If production of redacted documents from the confidential human source sub-file would be unduly burdensome, compromise the identity of the source, or otherwise violate the Attorney General Guidelines for Confidential Human Sources or the FBI’s Confidential Human Source Manual, FBI personnel may request that the attorney use a human source sub-file request form. Upon receipt of that form, the relevant FBI confidential human source coordinator will verify the accuracy of the source’s reliability and background that was used in the application, and transmit the results of that review to the reviewing or attorney.

So in December, DOJ claimed that these reviews served to “ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application.” They claimed that “OI attorneys verify that every factual statement in the categories of review described in footnote 5” — pertaining to 1) facts establishing probable cause 2) the target actually uses the targeted facilities 3) the target is a US person and 4) the criminal investigative techniques are accurately described —  are “supported by a copy of the most authoritative document that exists or, in enumerated exceptions, by an appropriate alternate document.” In theory, the easiest way to verify bullet point 1 (the case for probable cause) would be for the OI lawyers to check whether the Woods Files were complete.

Before I get into results, a word about the numbers.

Altogether, DOJ IG reviewed 34 FBI CDC and NSD OI reports and those reports covered 42 US person FISA applications.

Specifically, in addition to interviewing FBI and NSD officials, we reviewed 34 FBI and NSD accuracy review reports covering the period from October 2014 to September 2019—which originated from the 8 field offices we have visited to date and addressed a total of 42 U.S. Person FISA applications, only one of which was also included among the 29 FISA applications that we reviewed.

These numbers are bit confusing. For starters, the base number of accuracy reports, 34, is less than 40 (what it would be if there were a review for all 8 field offices for each of 5 years, which is supposed to be mandated for each FBI office). DOJ IG did not review one application per year per FBI office. I asked DOJ IG why that was; they said only “there may be many reasons why this is the case,” emphasizing multiple times that this audit is in its earliest phases (I’ve got requests for comment in with both NSD and FBI). Some of those many reasons might be:

  • Smaller offices reviewed don’t submit a FISA application every year, so for some offices there was none to review
  • OI doesn’t review most FBI offices every year, so for less frequently reviewed offices, there won’t be a review every year (but there should be an FBI one if the office did any FISA applications)
  • DOJ IG was only interested in US person FISA applications; some of the ones that FBI and OI reviewed would likely not target US persons
  • Only applications for which FISA coverage had ended were reviewed; for the later applications, FISA coverage might be ongoing and therefore excluded from the DOJ IG review
  • DOJ IG may not have finished its review of all these Accuracy Reviews reviews yet, so didn’t include them in the MAM

Additionally, the references to this part of review seems to suggest that the NSD reviews the same FISA application that each FBI field office reviews each year, as well as any problematic ones or ones being used in a prosecution, though that’s something I’m trying to get clarity on. Likewise, I’m trying to figure out whether FBI and OI similarly try to pick a “judgmentally selected sample” to ensure both the counterterrorism and counterintelligence functions are reviewed.

One detail makes this process a really bad measure of Woods File compliance (which is different from whether they measure the accuracy of the application effectively). Before any of these reviews happen, the field offices are told which applications will be reviewed, which gives the case agents a chance to pull together the documentary support for the application.

Thus, prior to the FBI CDC or NSD OI review, field offices are given advance notification of which FISA application(s) will be reviewed and are expected to compile documentary evidence to support the relevant FISA.

If the Woods Procedures were being followed, it should never be the case that the FBI needs to compile documentary evidence before the review; the entire point of it is it ensure the documentary evidence is in the file before any application gets submitted. Once you discover that all the FBI and OI reviews get advance notice, you’re not really reviewing Woods Procedures, it seems to me, you’re reviewing paperwork accuracy.

Nevertheless, even with the advance notice, the 93% of the 42 applications DOJ IG reviewed included problems.

[T]hese oversight mechanisms routinely identified deficiencies in documentation supporting FISA applications similar to those that, as described in more detail below, we have observed during our audit to date. Although reports related to 3 of the 42 FISA applications did not identify any deficiencies, the reports covering the remaining 39 applications identified a total of about 390 issues, including unverified, inaccurate, or inadequately supported facts, as well as typographical errors. At this stage in our audit, we have not yet reviewed these oversight reports in detail.

Keep in mind, OI is reviewing for four things — whether there’s paperwork present to support  that the application shows 1) facts establishing probable cause 2) the target actually uses the targeted facilities 3) the target is a US person (or, for applications targeting under the lower foreign power standard, that the target is not a US person, but that shouldn’t be relevant here) and 4) the criminal investigative techniques used already are accurately described. The second bullet point is actually at least as important as the probable cause, because if the wrong person is wiretapped, then a completely innocent person ends up compromised. That’s the kind of thing where typographical errors (say, transposing 2 digits in a phone number) have had serious ramifications in the past.

The lack of clarity regarding numbers makes one other point unclear. The memo setting up this process envisions NSD’s involvement in assessing whether problems with FISA applications are material. But in practice, the FBI doesn’t consult with them. And in the set of applications that DOJ IG Reviewed (again, it’s unclear whether OI reviewed all the FBI files, along with a select few more, or not), FBI found more problems than OI did, 250 as compared to 140 (for a total of 390 problems).

The 2009 joint FBI-NSD policy memorandum states that “OI determines, in consultation with the FBI, whether a misstatement or omission of fact identified during an accuracy review is material.” The 34 reports that we reviewed indicate that none of the approximately 390 identified issues were deemed to be material. However, we were told by NSD OI personnel that the FBI had not asked NSD OI to weigh in on materiality determinations nor had NSD OI formally received FBI CDC accuracy review results, which accounted for about 250 of the total issues in the reports we reviewed.

[snip]

FBI CDC and NSD OI accuracy review reports had not been used in a comprehensive, strategic fashion by FBI Headquarters to assess the performance of individuals involved in and accountable for FISA applications, to identify trends in results of the reviews, or to contribute to an evaluation of the efficacy of quality assurance mechanisms intended to ensure that FISA applications were “scrupulously accurate.” That is, the accuracy reviews were not being used by the FBI as a tool to help assess the FBI’s compliance with its Woods Procedures.

This is one of the complaints and recommendations in the MAM: it complains that the FBI reviews are basically going into a file somewhere, without a lessons learned process. It recommends that change. It also recommends that OSD get FBI’s reports, so they can integrate them into their own “trends reports” that they do based on their own reviews.

DOJ IG describes its finding that these results aren’t being used in better fashion.

(4) FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

At least given their description, however, I think they’ve found something else. They’ve confirmed that — contrary to DOJ’s description to FISC that,

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.

OI is actually only doing the latter part, measuring the accuracy of the facts in an applicable FISA application. To check the accuracy of the Woods Files, they should with no notice obtain a subset of them, as DOJ IG just did, and see whether the claims in the report are documented in the Woods File, and only after that do their onsite reviews (with notice, to see if there was documentation somewhere that had not been included in the file). That might actually be a better way of identifying where there might be other kinds of problems with the application.

With regards to the lessons learned problem, there seems like an obvious solution to this: Congress mandates that DOJ complete semiannual reviews of 702 practices (which includes reviews of NSA and CIA practices, as well as those of FBI), and they include precisely this kind of trend analysis. Even in spite of their heavy redaction in public form, I’ve even been able to identify problems with 702 and related authorities in the same time frame as NSA was doing so. There’s no reason that semiannual reports couldn’t be expanded (or replicated) to include probable cause targeting. At the very least it’d be a way to force OI and FBI to have this lessons learned discussion. Republican members of Congress have claimed that more oversight should be shifted to Congress (not a very good idea given that no one in Congress seemed to be conducting the close read that I had been), and this is an easy way to play a more active role.

DOJ IG has not reviewed the most important things yet

The MAM is explicit that it has not reviewed the import of the errors it found.

[W]e 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.

Nor has it reviewed FBI’s own decisions regarding the 290 errors they found in their own reviews to determine if the FBI’s judgment that they were not material was valid. If it compared its results for the one application that FBI and/or OI also reviewed, it doesn’t say so explicitly (which would seem a really important measure about the integrity of the standard reviews).

And while it’s significant that there are so many errors, regardless of the review, it still doesn’t address what the Carter Page case said was the far more important issue: what got left out. Of the 8 to 18 Woods Files errors in the Carter Page investigation, for example, just one got to the core of the problem with the application, that Page was making denials, denials that — before later applications were submitted — the FBI had reason to know were correct (another of the Woods File errors might have raised questions about Steele, but did not go to the heart of the problems with his reporting). The other problems had to do with paperwork, not veracity. And none of the Woods File problems related to CIA’s contact approval of Page for some but not all of his willful sharing of non-public information with known Russian intelligence officers.

DOJ IG says it will conduct further analysis of the problems it has thus far found.

In connection with our ongoing audit, the OIG will conduct further analysis of the deficiencies identified in our work to date and of FBI FISA renewals. In addition, we are expanding the audit’s objective to also include FISA application accuracy efforts performed within NSD. Consistent with the OIG’s usual practices, we will keep the Department and the FBI appropriately apprised of the scope of our audit, and we will prepare a formal report at the conclusion of our work.

But it’s not yet clear that this will include picking a subset of the files already reviewed to do the kind of deep dive that was done with Carter Page.

Further, at this point, DOJ IG seems not to be seeing one of the more obvious conclusions. As explained above, it recommends that the FBI and NSD use their accuracy reviews better to better do lessons learned.

We recommend that the FBI institute a requirement that it, in coordination with NSD, systematically and regularly examine the results of past and future accuracy reviews to identify patterns or trends in identified errors so that the FBI can enhance training to improve agents’ performance in completing the Woods Procedures, or improve policies to help ensure the accuracy of FISA applications.

But it specifically speaks in terms of improving performance with the Woods Procedures.

If the Woods Procedures are meant to be a tool, it would be necessary to conduct no-notice reviews of the files. Otherwise, you’re not reviewing the Woods Procedures. That would need to be a recommendation.

But it seems to be possible if not likely that fixing the problems IDed back before 2000 with a paperwork requirement that doesn’t go to the core of the issue hasn’t worked (and, as described, has never been used as a key measure for the existing OI reviews), then it seems other solutions are necessary — including that criminal defendants get some kind of review. Though even that would be inadequate to the task, given that before DOJ makes the decision to permit FISA materials to be used in a prosecution, they review whether the files would sustain a judge’s review first.

The goal here is not to placate FISC, nor is it to check some boxes as part of the application process. It’s to ensure that absent the threat of review by a defense attorney, the benefits (which already have serious limits) of adversarial review are achieved via other means. And there’s good reason to believe that absent more significant changes in the oversight process, the Woods Procedures are never going to achieve that result.

The Michael Atkinson conspiracy theory

As I was already writing this, it became clear that the frothy right was using this report, released on Tuesday, to provide a non-corrupt excuse for Trump’s firing of Intelligence Community Inspector General Michael Atkinson late on Friday night.

The basis for such a claim is not entirely clear to me. Frothers in my Twitter timeline at first seemed to confuse Atkinson with DOJ’s IG, Michael Horowitz, or believed that the ICIG had a central role in FISA. Then they seized on the fact that, for the two years before he became ICIG, Atkinson was at National Security Division, which both oversees some cases likely to have a FISA component and oversees the submission of applications and then conducts the oversight reviews.

Atkinson’s confirmation materials provide some exactitude for what he did at DOJ when:

September 2002 to March 2006: Trial Attorney for DOJ’s Fraud Section

March 2006 to March 2016: AUSA in DC USAO working on Fraud (including in oversight positions)

March 2016 to June 2016: Acting DAAG, National Asset Protection at NSD

July 2016 to May 2018: Senior Counsel to AAG for NSD

There would be little imaginable reason for a fraud prosecutor, as Atkinson was for the majority of his DOJ career, to use FISA (two of the highest profile cases he worked on were the prosecution of Democratic Congressmen William Jefferson and Jesse Jackson Jr), though he said he worked on some espionage, sanctions, and FARA cases. As Acting DAAG, he worked in a different part of NSD than the unit that handles FISA applications and oversight.

As he described it in his confirmation materials, he would have been a consumer of FISA information, but not the person doing the reviews.

As Senior Counsel to the AAG (serving under John Carlin, Mary McCord, Dana Boente, and John Demers), he might have visibility into review processes on FISAs, though at that level, managers assumed the Woods Procedure worked as required (meaning, Atkinson would not have known of these problems).

In his confirmation materials, however, Atkinson suggested he spent far more time as Senior Counsel overseeing the response to unauthorized disclosures, which likely still included Snowden when he started in 2016, added Shadow Brokers that year, and would have focused closely on Vault 7 in 2017 and 2018.

My experience in helping to coordinate the responses to unauthorized disclosures while serving as the Senior Counsel to the Assistant Attorney General, U.S. Department of Justice, National Security Division (NSD), should assist me in serving effectively as the IC IG. As part of this position, I have assisted in coordinating the Department’s efforts to investigate and prosecute unauthorized disclosures across the IC enterprise. This experience has reinforced for me the important role that fair, impartial, and effective whistleblower protection processes play in maximizing the IC’s effectiveness and minimizing the risks of unauthorized disclosures and harm to our national security. As part of this experience, I have also been a consumer and user of intelligence from multiple intelligence sources, and I have seen first-hand the benefits to our country when there is a unity of effort by the Intelligence Community to address national security needs.

For Vault 7, at least, the investigation into Joshua Schulte — who was always the prime suspect — used criminal process from the very start (though it’s possible that the increased surveillance of Julian Assange involved FISA). And while there are less spectacular cases of unauthorized disclosure that might involve some nexus with a foreign country, raising FISA issues, many of these leaks cases were criminal cases, seemingly not reliant on FISA. Which would mean some of the most sensitive cases Atkinson worked on didn’t involve FISA.

Though the frothy right may think Atkinson had a central role because the title of the person at FBI field offices who must conduct a review is “Chief [Division] Counsel,” and they confused both the agency and the location.

In any case, there’s one more piece missing from this: while I happen to think DOJ IG has not focused closely enough on what NSD should be doing in its oversight role, thus far, DOJ IG has not investigated it. And so there’s actually no allegation of wrong-doing from anyone at NSD in either of these two reports, not even the NSD people who actually work on FISA. On the contrary, DOJ IG simply describes OI doing reviews where they identified problems and wrote them up. Yes, OI likely should have been more involved in determining whether the errors FBI found were material. Given that Boasberg has mandated materiality reviews of the 29 files reviewed by DOJ IG, now would be a good time to implement that practice.

Still, compliance or not with Woods Files remains a distraction from a deeper review of whether these files included all pertinent information. And if FISA is going to remain viable, that’s the examination that needs to happen.

Horowitz

It Turns Out Carter Page Was Not Special

DOJ’s IG released a Management Advisory Memorandum reporting on its results to date of the Woods File review promised in the wake of the DOJ IG Report that found (in part) that 8 (in the first) and 16 (in the last) claims made over the course of four FISA applications to surveil Carter Page were not backed by the Woods file meant to ensure the integrity of FISA applications. (The table starting on PDF 460 lists these errors.)

I’ll have more on its methodology and findings, but the key takeaway is that Carter Page was not special, nor specially targeted by a Deep State intent on taking down the President.

Of 29 FISA applications DOJ IG selected for review, the Woods File was missing for four applications.

And for the 25 Woods Files there were able to review, there were an average of 20 issues identified per application, a higher rate than that found in the Carter Page review.

Although all 29 FISA applications that we selected for review were required by FBI policy to have Woods Files created by the case agent and reviewed by the supervisory special agent, we have identified 4 applications for which, as of the date of this memorandum, the FBI either has been unable to locate the Woods File that was prepared at the time of the application or for which FBI personnel suggested a Woods File was not completed. We, therefore, make a recommendation below that the FBI take steps to ensure that a Woods File exists for every FISA application submitted to the FISC in all pending investigations.

Additionally, for all 25 FISA applications with Woods Files that we have reviewed to date, we 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. While our review of these issues and follow-up with case agents is still ongoing—and we have not made materiality judgments for these or other errors or concerns we identified—at this time we have identified an average of about 20 issues per application reviewed, with a high of approximately 65 issues in one application and less than 5 issues in another application.

It’s not that the Deep State was specifically targeting Page and candidate Donald Trump. It’s that the Woods Procedures weren’t working.

Driving Carter Page: What the 302 Says

One of the seventeen Woods violations the DOJ IG Report cites in its list of errors in the Carter Page report involves a chauffeured car.

It involves a June 1, 2017 interview with Yuval Weber, who is the son of Shlomo Weber, the academic who invited Page to speak before the New Economic School. The IG Report seems to raise doubts about the more important allegation here — that Page was rumored to have met with Igor Sechin (which would match a claim made in the Steele dossier).

A June 2017 interview by the FBI of an individual closely tied to the President of the New Economic School in Moscow who stated that Carter Page was selected to give a commencement speech in July 2016 because he was candidate Trump’s “Russia-guy.” This individual also told the FBI that while in Russia in July 2016, Carter Page was picked up in a chauffeured car and it was rumored he met with Igor Sechin. However, the FD-302 documenting this interview, which was included in the Woods File for Renewal Application No. 3, does not contain any reference to a chauffeured car picking up Carter Page. We were unable to locate any document or information in the Woods File that supported this assertion. 371

This week’s release of Mueller 302s includes the 302 from this interview. It shows that, amid a broad discussion of the way that Russia tries to cultivate Americans (including using invitations such as the one offered to Mike Flynn), Weber described,

SA [redacted] later asked why would NES want a speaker [redacted] Weber said that it was because he was Trump’s Russia-guy. The university typically had heads of state and Nobel Laureates as commencement speakers; in fact, Weber claimed they could have any Nobel Laureate they wanted for the speech.

[redacted]

In July, when Page had traveled to give the commencement speech at NES, Weber recalled that it was rumored in Moscow that Page met with Igor Sechin. Weber said that Moscow is filled with gossip and people in Moscow were interested in Page being there. It was known that a campaign official was there.

Page may have briefly met with Arkady Dvorkovich at the commencement speech, considering Dvorkovich was on the board at NES. But Weber was not aware of any special meeting.

[redacted] was not with Page 100% of the time, he met him for dinner, attended the first public presentation, but missed the commencement speech. They had a few other interactions. Page was very busy on this trip.

The 302 notes the follow-up call (but, as the IG Report correctly notes, does not mention the chauffeured car):

On 6/06/2017, SA [redacted] and SA [redacted] conducted a brief telephone follow-up interview of Weber. Weber provided the following information:

SA [redacted] asked a question specifying Weber’s previous statement that it was rumored in Moscow in July of 2016 that Page had met with Igor Sechin, as stated above, Weber said “I think so.” Weber described that Page mentioned in July that he previously met with the Prime Minister of India Narendra Modi. Weber was surprised that Page would meet a head of state, but it made him less surprised about the rumor of Page meeting Sechin.

Weber also told the agents that if they wanted to chase the rumor that Moscow had started monitoring Trump when oligarchs started “moving” money into NY real estate, they should,

…speak to any billionaire who purchased real estate from Trump, including [redacted] and Kirill Dimitriev.

Dmitriev, of course, is the Russian who successfully reached out to the Trump Transition via Erik Prince and Rick Gerson.

Ultimately, this was still just a rumor, and the FBI accurately noted it as such in the FISA application. The detail about a chauffeured car — which in this day and age could be an Uber! — seems unnecessary to the application, but also did make it into the application in violation of Woods procedures.

Still, as always, the real problems with Page’s applications were not the Woods procedure violations; they involved the more substantive exculpatory information that didn’t make it into the application.

The Stakes and Misinformation about the Andrew McCabe Declination

Amid the other crazy events of the week, DOJ informed Andrew McCabe he would not be prosecuted as a result of the criminal referral arising from DOJ IG’s finding that he lacked candor when asked about an October 30, 2016 Devlin Barrett story.

While it’s possible the Tuesday Afternoon Massacre and Jessie Liu’s removal had some role in the timing of this notice, one thing is clear: McCabe got notice primarily because Judge Reggie Walton had imposed a deadline in a CREW FOIA to release some transcripts about the stalled decision-making process. Probably, DOJ made the decision last fall after a grand jury refused to charge McCabe, but stalled on giving McCabe notice because DOJ knew it would piss off Trump. But since the court transcripts would reveal some of that, the FOIA deadline finally forced DOJ’s hand.

In the aftermath of the McCabe news, a bunch of frothy Republicans, including Chuck Grassley, have analogized the investigation into McCabe with the investigations into Roger Stone (for conducting a two year cover-up, including making threats against a witness and a judge) and Mike Flynn (for lying multiple times to the FBI, continuing to fudge the truth in the ongoing investigation, and lying to hide that he was on Turkey’s payroll at a time when he was Trump’s top national security advisor). Even taken on their face, that’s a ridiculous comparison, one that dismisses the import of threatening judges and secretly serving as agents for frenemy governments while receiving intelligence briefings. The accusations against the men are different, with a lack of candor allegation against McCabe versus lying against the others, and egregious mitigating factors implicating national security with the others. Whereas grand jury reportedly refused to even charge McCabe, a jury found Stone guilty of every count with which he was charged.

More importantly, the comparison has treated the allegation against McCabe with a seriousness that the underlying record — as laid out in McCabe’s lawsuit against DOJ — does not merit.

And McCabe’s lawsuit may provide a partial explanation for why DOJ stalled so long before declining to prosecute the case. That’s because a key part of DOJ’s defense against McCabe’s lawsuit is that they could or even had to move so quickly to fire McCabe because there was reasonable reason to believe that McCabe had committed a crime for which he could be imprisoned.

Mr. McCabe was given seven days to provide oral and written responses to the notice of proposed removal to ADAG Schools. That response period was a departure from the 30-day response period more frequently provided for a proposed removal. But FBI policy governing the removal of Senior Executive Service (SES) employees provides that “if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment can be imposed, the advance notice may be curtailed to as little as seven days.” FBI SES Policy at 16 (attached as Ex. 2). Given the Inspector General’s findings that Mr. McCabe lacked candor under oath, findings which Assistant Director Will seconded after her independent assessment, there was reasonable cause to believe that Mr. McCabe had committed a crime for which a sentence could be imposed—and, therefore, a sound basis for affording Mr. McCabe seven days to respond.

DOJ has excused their rush to fire McCabe based on having reasonable grounds to believe he could be prosecuted for lies, but the rush to fire McCabe resulted in DOJ ignoring clear evidence that the IG Report was fundamentally flawed in a way that easily explains why a grand jury would refuse to indict. So the lawsuit, if McCabe gets discovery, is likely to show that he was rushed out the door to prevent him from building the case that he was being rushed out the door based on a case riddled with problems.

When the IG Report came out, I found it pretty compelling and therefore the criminal referral understandable (though I did not believe criminal charges would be upheld), even while noting the big push to make that happen before McCabe retired delegitimized it. But now it’s clear that the report didn’t get the normal level of pre- and post-publication review, McCabe’s OPR process was rushed to beat his retirement deadline, and had either of those processes been conducted in the normal fashion, they would have likely caught significant problems with the report.

Indeed, McCabe presented compelling evidence — even in a very rushed written response submitted to OPR hours before Jeff Sessions fired him — that he had at least colorable explanations to rebut the IG Report allegations.

As laid out, the IG Report accused McCabe of lacking candor about two kinds of things: first, whether he had told Comey he was a source for the WSJ story, and what role he and Lisa Page had in the story. Both the middle meetings — May 9, 2017, hours before Comey’s firing and his ascension to Acting Director, and July 28, 2017, in the context of a meeting about the discovery of the Page-Strzok texts — were on two of the most momentous days of McCabe’s career. The other two pertain to whether or not McCabe told Comey about his involvement in the WSJ story, which the IG Report portrayed as a difference of opinion about a casual meeting the two had, about which the IG sided with Comey’s version.

Thus, to a significant degree, the question of McCabe’s candor pivoted on whether he had really told Comey he was involved in the WSJ story.

And, as McCabe alerted OPR before he got fired, the IG Report included no mention of one of the most central players in the October 2016 WSJ story, FBI’s Assistant Director of Public Affairs Michael Kortan, with whom McCabe worked closely on the WSJ story. In other words, the IG Report suffers from the kind of egregious failure to include exculpatory information that it just took FBI to task about in the Carter Page IG Report (which also happens to be true of the Carter Page IG Report generally and its treatment of Bruce Ohr specifically). So when the IG Report sides with Comey’s version of the story because,

no other senior FBI official corroborated McCabe’s testimony that, among FBI executive leadership, “people knew generally” he had authorized the disclosure,

The Report can only make such a claim because it entirely left out the testimony of one of the most central players, Kortan. And as McCabe has made clear, in the OPR adjudication, his team did not get the exculpatory information involving Kortan until two days before the final decision.

Reports of why the grand jury refused to indict have pointed to Kortan’s testimony, and it’s clear why: because his testimony totally undermines the conclusions of the IG Report and therefore any basis to indict him.

Most importantly, McCabe submitted an email showing that he informed Comey (and some of the other senior FBI people whom the IG Report claimed didn’t know he was involved) that he was involved in the WSJ story.

With the declination of McCabe, DOJ has admitted that a key reason they claim to have relied on (a claim McCabe disputes) on rushing McCabe’s firing is false: he’s not likely to face prison time, because a grand jury won’t even indict him. And that may increase the chances that McCabe will get to prove precisely why he was rushed out the door with Trump screaming about him all the way.