The Significance of the January 12 Reauthorization of Carter Page’s FISA Order
I’d like to riff on a small but significant detail revealed in the Schiff memo. This paragraph adds detail to the same general timeframe for the orders obtained against Page laid out in the Nunes memo: the first application approved on October 21, with reauthorizations in early January, early April, and late June.
Republican judges approved the Carter Page FISA orders
The passage also narrows down the judges who approved the orders, necessarily including FISC’s sole Reagan appointee Raymond Dearie and FISC’s sole Poppy appointee Anne Conway, plus two of the following W appointees:
- Rosemary Collyer (worst FISC judge ever)
- Claire Eagan (OK, she may be worse than Collyer)
- Robert Kugler
- Michael Mosman (a good one)
- Dennis Saylor (also good)
I won’t dwell on this here, but it means the conspiracy theory that Obama appointee Rudolph Contreras approved the order, and because of that recused in the Flynn case, is false.
The first reapplication came days after the dossier and a second Isikoff article came out
Back to the timing. The footnotes provide the dates for two of the other applications: June 29 (in footnotes 12, 14, 15, 16) and January 12 (footnote 31), meaning the third must date between April 1 and 12 (the latter date being 90 days after the second application).
As I laid out here, the timing of that second application is critical to the dispute about whether FBI handled Michael Isikoff’s September 23 article appropriately, because it places the reapplication either before or after two key events: the publication of the Steele dossier on January 10 and Isikoff’s publication of this story on January 11. Isikoff’s January article included a link back to his earlier piece, making it fairly clear that Steele had been his source for the earlier article. The publication of that second Isikoff piece should have tipped off the FBI that the earlier article had been based on Steele (not least because the second Isikoff piece IDs Steele as an “FBI asset,” which surely got the Bureau’s attention).
FBI didn’t respond to Isikoff in time for the second application
Now, you could say that FBI should have immediately reacted to the Isikoff piece by alerting the FISC, but that’s suggesting bureaucracies work far faster than they do. Moreover, the application would not have been drafted on January 12. Except in emergency, the FISC requires a week notice on applications. That says the original application would have been submitted on or before January 5, before the dossier and second Isikoff piece.
FBI appears to have dealt with the Isikoff article interestingly. The body of the Schiff memo explains that Isikoff’s article, along with another that might be either Josh Rogin’s or Julia Ioffe’s articles from the time period, both of which cite Isikoff (Rogin’s is the only one of the three that gets denials from Page directly), were mentioned to show that Page was denying his Moscow meetings were significant.
That redacted sentence must refer to the January 12 application, because that footnote is the only footnote citing that application and nothing else in the paragraph discusses it.
An earlier passage describes the first notice to FISC, in that same January 12 application, “that Steele told the FBI that he made his unauthorized media disclosure because of his frustration at Director Comey’s public announcement shortly before the election that the FBI reopened its investigation into candidate Clinton’s email use.”
It’s possible that redacted sentence distinguishes what Grassley and Graham did in their referral of Steele. The first application stated that, “The FBI does not believe that [Steele] directly provided this information to the press.” Whereas the January reapplication stated in a footnote that the FBI, “did not believe that Steele gave information to Yahoo News that ‘published the September 23 News Article.” Within a day or so, the FBI should have realized that was not the case.
So it’s true FBI was denying that the September Isikoff article was based off Steele reporting after the time they should have known it was, but that can probably best be explained by the application timelines and the lassitude of bureaucracy.
The submission of the preliminary second application likely coincides with the Obama briefing on the Russian threat
As noted above, the second application would have been submitted a full week earlier than it otherwise would have had to have been given the 90-day term on FISA orders targeting Americans. That means the preliminary application was probably submitted by January 5. Not only would that have been too early to incorporate the response to the dossier, most notably the second Isikoff piece, but it even preceded Trump’s briefing on the Russian tampering, which took place January 6.
It’s also interesting timing for another reason: it means FBI may have submitted its reapplication targeting Page on the same day that Jim Comey and Sally Yates briefed Obama, Susan Rice, and Joe Biden, in part, on the fact that Putin’s mild response to the election hack sanctions rolled out in late December arose in response to requests from Mike Flynn to Sergey Kislyak. As I addressed here, that briefing has become a subject of controversy again, as Chuck Grassley and Lindsey Graham tried to suggest that the Steele dossier may have contributed to the investigation of Flynn.
But contrary to what the Republican Senators claimed in their letter to Rice on the subject, Rice claims the Steele dossier and the counterintelligence investigation never came up.
The memorandum to file drafted by Ambassador Rice memorialized an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn. In light of concerning communications between members of the Trump team and Russian officials, before and after the election, President Obama, on behalf of his national security team, appropriately sought the FBI and the Department of Justice’s guidance on this subject. In the conversation Ambassador Rice documented, there was no discussion of Christopher Steele or the Steele dossier, contrary to the suggestion in your letter.
Given the importance and sensitivity of the subject matter, and upon the advice of the White House Counsel’s Office, Ambassador Rice created a permanent record of the discussion. Ambassador Rice memorialized the discussion on January 20, because that was the first opportunity she had to do so, given the particularly intense responsibilities of the National Security Advisor during the remaining days of the Administration and transition. Ambassador Rice memorialized the discussion in an email sent to herself during the morning of January 20, 2017. The time stamp reflected on the email is not accurate, as Ambassador Rice departed the White House shortly before noon on January 20. While serving as National Security Advisor, Ambassador Rice was not briefed on the existence of any FBI investigation into allegations of collusion between Mr. Trump’s associates and Russia, and she later learned of the fact of this investigation from Director Comey’s subsequent public testimony. Ambassador Rice was not informed of any FISA applications sought by the FBI in its investigation, and she only learned of them from press reports after leaving office.
Grassley and Graham appear to have confused the IC investigation with the counterintelligence investigation, only the latter of which incorporated the Steele dossier.
In any case, one reason the apparent coincidence between the January 5 briefing and the reapplication process is important is it suggests it was also pushed through a week early to provide room for error with the inauguration. If a FISA order on January 19 goes awry, it might not get approved under President Trump. But if anything happened to that application submitted around January 5, it’d be approved with plenty of time before the new Administration took over.
Intelligence from Page’s FISA collection helped support the government’s high confidence that Russia attempted to influence the election
Here’s one of the most interesting details in the Schiff memo, however. This passage describes that the wiretap on Page obtained important intelligence, though it won’t tell us what it is.
That redacted footnote, number 14, describes that the redacted intelligence is part of what gave the Intelligence Community “high confidence”
Admittedly, this footnote, with its citation to the October and June applications, is uncertain on this point. But for the wiretap on Page to have supported the December ICA assessment of the Russian tampering, then it would have had to have involved collection from that first period.
If that’s right, then it suggests the reason the Obama Administration may have applied for the order renewal early, the same day Comey and Yates briefed Obama on the ICA and Flynn, is because something from that order (possibly targeting Page’s December trip to Moscow) added to the IC’s certainty that the Russians had pulled off an election operation.
This also brings us back to the timeframe for Papadopoulos. He was doing campaign-related stuff late in the year, and according to his fiancée (though they weren’t dating at the time) was working for Flynn during the transition. He spoke alongside Priebus at an event with the Greek defence minister on inauguration day, and with a group of Israeli settlers two days later. His first FBI interview was on January 27th, two days after the FBI spoke to Flynn, and the criminal part of that investigation only moved into high gear afterwards.
Isikoff’s story in late September led Jason Miller to say Page had “never been a part of our campaign” which in turn gave the FBI more political space to take the FISA route. Papadopoulos was never declared out of the campaign’s orbit, though he didn’t get an appointment out of the transition.
The transition part of the narrative tends to focus on Flynn and Crown Prince Jared, but that’s because we don’t have much detail on what Papadopoulos and Page were doing, and nobody’s sharing.
And yes, given access to the underlying materials in the January renewal, there may be aspects of Page’s testimony about his December travels that don’t hold up, but can’t be disclosed because of sources & methods.
Curiouser and curiouser.
Many thanks.
an impressive piece of extended reasoning.
on another tack, it may be that the june 9 meeting was not an “intiating activity” meeting at all, but the climactic part of a web of meetings which began much earlier and involved papadoupolous and page and who knows who else.
Applying for that renewal on the same day as that briefing suggests to me that (a) Comey and Yates saw something urgent, and brought it to the attention of the boss, who then told them to run, not walk, to make sure they could keep following this, or (b) in the course of briefing Obama they described whatever they had seen to date via Page, and were encouraged to run, not walk, etc. Either way, I don’t think it is simply coincidence that they filed the application the same day as this briefing.
The clerk of the FISC maintains an itemized log of all materials filed with the court, including the filing date. It would be utterly trivial for the staff of each of Nunes’ committee & Grassley’s committee to check that log.
Great analysis above. I think the analysis of which judges approved the FISA warrants above is slightly wrong … I think this one below is actually right because it takes into account the changing of one judge (Feldman replaced by Kruger in May 2017). https://politipocrisy.news/2018/02/26/oops-schiff-memo-pins-carter-page-fisa-approval-on-anne-conway-florida/
There was considerable chatter about rejected FISA applications over the summer of ’16, August for at least one of them. Has there been any research or resolution on those? Were they real or chimeras? If real, the application(s) might illuminate who had what information, when, how they used it, and why the court did not like it. Might rejected applications have been revised and formed the basis of the October application?
1. Tho the application package is required to be submitted to the FISC at least a week before the prospective start date, that doesn’t mean the DoJ & FISC function in some hermetically sealed environment. It’s not uncommon for things to happen and come to the attention of the applicant & that of the court during the intervening week. When such does occur, it’s important to bear in mind that:
a) this is a WARRANT process, and
b) the protocol isn’t at all like, say, the sealing off of Burperlson AFB.
I’ve never been directly involved in (or, AFAIK, been all that close to) a FISA warrant application. But I’ve been involved with IDK other sorts of warrant applications in other settings – hundreds – and from memory of experiencing those, ways get developed to deal with (for want of a handier phrase) ‘breaking grounds’.
I’ve seen more than one judge convene a special court setting, complete with a specially-sworn court staff and reporter, to receive the breaking grounds. I’ve seen more than one judge require the attesting investigator to attend at the application to supplement the sworn material. I’ve seen judges make h/w notes on the face and back of documents in the application package to accommodate the breaking grounds. I’ve heard judges say, effectively, That’s not important or Don’t worry about that. I’ve heard judges say, I’m not rejecting this application, but I am requiring that you to go back and restart the process before I continue with it.
I personally NEVER heard any judicial officer in this sort of setting REJECT the application due to breaking grounds (Of course, I cannot account for the experiences of the many thousands of others in acting in situations analogous to mine.); but then the person in my position, the government actor, isn’t inanimate: she or he is INTENDED to act in a gatekeeper capacity.
IAE, I’m saying we cannot conclude for certain that neither the Buzzfeed article nor Isikoff’s second article in January were not somehow considered by the FISC judge.
2. Not that it should matter (as Sheldon Whitehouse observed, in language more measured if not more elegant): this is about a friggin’ SEARCH WARRANT, FCOL, not a conviction or even indictment, with the test for reviewing warrants being clear.
If we could go back in time to when this warrant was applied for, and tell the FISC judge everything that’s known now, would it still have been reasonable to grant it?
The test is NOT ‘would the application NECESSARILY have been granted if everything now known had been barfed up then’. The test is, COULD it have been granted, REASONABLY? Concepts like ‘guilt beyond reasonable doubt’ and ‘fruit of poison trees’ apply to trial proceedings, verdicts & appeals from those. At most, the latter has an extremely narrow & restricted conceptual application to warrant applications – for sound reasons consistent with the 4th amendment.
E.g. a DoJo could say to the FISC judge hearing the application, Judge, to be totally candid, this dossier just reeks of rat-fucking; but there are these 1 or 2 little bits of info, such as this one here on this page at this line, that tie in with info we’ve verified independently, so that’s why we’re including this. And that would be fine both in law & constitutionally.
3. SO WHY OH WHY, THEN… would Grassley, and not just non-attorney Sen Chuckles from Potatohead Corners, but also actually-trained attorney with court experience Sen Graham, get so all-fired-up excited about the reference and extremely narrow limited use of the Steele dossier in a quasi-judicial setting, risking looking in the long run, and to future historians, like total jackasses to folks who know what they’re talking about?
One possibility: the actual full content of the Steele dossier remaining withheld from the public, serves as a rock, to completely obscure the presence of some other tidbit within it – such as, for example:
the name of some NYC figure who received a leak out of some law enforcement agency concerning the seizure, ongoing custody of and ‘colorable’ content within a certain laptop PC seized in relation to the case against Anthony Weiner.
So, sure: the Steele dossier could indeed contain some, or much, or a large amount, or even a predominant % of hand-fed Russian rat droppings. But if it also contains just a couple of even roughly accurate pieces of actionable intel that might conceivably lead to bringing down a Republican POTUS (having nothing at all to do with Rus hookers urine-soaking a Moscow hotel bed), that sure seems to me be like something Chuck & Lindsay would feel motivated to act to keep a lid on.
(It’s been said that Steele was motivated to go to the FBI by learning of FBID Comey’s decision to write that letter to Congress.)
Reminds me of this bit from the movie, Charlie Wilson’s War:
The left hand holds the legend of the pee tape.
Is there a good primer for the layperson out there for the different types of electronic surveillance that could be in play in the Mueller investigation? I realize FISA warrants are different than regular domestic warrants, but Googling quickly leads to an avalanche of superficial news articles, dense legal analyses, slanted political takes, and so on, and my head is swimming trying to sort it all out.
I’m operating under the assumption that if they want it badly enough, the FBI can do almost anything — tap landlines, install listening devices, use cell towers, etc. They seem to have listened in on conversations with the basketball coach of the University of Arizona, for example, in a recent recruiting violation case.
But to be honest, beyond the fact that FISA warrants seems to operate under looser rules than domestic warrants, everything is vague to me, and if anyone can point me to a good layperson’s breakdown of what’s involved, I’d appreciate it.
(I realize that I may be biting off more than I can chew.)
Where did you get this idea you appear to have of a lesser standard for FISA warrants?
FWIW, it seems to me a lot more probable that a phone call that included Arizona head coach Sean Miller as one participant would have been intercepted because the person he was speaking with was who was named in a wiretap warrant. A long time ago there used to be court arguments that such warrants only provided for seizure of a named party’s side of a conversation. Eventually such arguments were disposed of by noting that the warrants in questions always seemed to use the word “conversations”, which kinda implied that the courts granting the warrants had in mind something more than just the words from one side of it.
(On your last observation, if someone were to ask me, I’d be inclined to concur with your realization. There are thousands of court case reports, dozens of massively thick textbooks, and entire encyclopedias with regular update services on search warrants and the seizures of interpersonal communications pursuant to them. The U.S. is a pretty big town with a lot of cases, so big it’s difficult for even professionals who deal regularly with search warrants to keep up with all the news developments on them.)
Bob Conyers, Asha Rangappa did a general step-by-step of how FISA warrants are obtained that’s chewable.
The FBI’s internal Woods procedures (c. 2001) for obtaining FISA warrants are online; explanation by Mueller, when FBI director, of the procedures.
The first 12 pages of Christopher Slobogin’s paper on legislative regulation of surveillance provide useful context for FISA as one of the wrenches in a government toolbox. Though it kicks off in 1928, it moves quickly into the current era.
Starting at p. 125 of Margaret Kwoka’s BU Law Review article on national security secrecy is a seven-page discussion of how FISA – devised to protect national security and defense – plays into criminal investigations.
The rules of procedure for the Foreign Intelligence Surveillance Court are only 18 pages and fairly plain spoken. If you want to see what the law itself says when you hit a particular citation, Cornell has it up in its U.S. Code form for fast look-ups.
Thanks for the links, I’ll check them out.
As I think about this, I think the heart of my problem with current reporting is that it’s far too focused on specific incidents, and much too unwilling to think about how the methods used against, say Manafort, could be applied elsewhere in the investigation, say Bannon or Kushner.
A good example is this article from The Atlantic:
https://www.theatlantic.com/politics/archive/2018/02/why-the-russia-investigation-could-end-more-like-iran-contra-than-watergate/554345/
It gives a bunch of surface analogies between Iran-Contra and Trump-Russia, but it really doesn’t touch on how Mueller is conducting his investigation and whether his approach is at all similar to what happened in Iran-Contra. I’d hazard a guess they’re two very different beasts, with Iran-Contra being far more of a political investigation while Mueller is focused much harder on proving crimes.
Zelizer’s article is interesting, but not particularly convincing. Mueller is running much more of a classic organized crime template of investigation than Iran Contra. And people who demur that “of we have not seen any smoking gun or evidence of “collusion” (still one of the most idiotic framings ever), fail to pay attention to the different arms/tranches of the Mueller investigation. There is so much out there not even in play yet, and if you think teams have not been working on that part, I have some Everglades condo property for you. Other than the PR missive indictment of the Russians, which was a marker, not something that will ever see the light of day, you don’t see much work product yet on the digital facet of the investigation. Have patience as to Bannon and Kushner (though only one of those is closer to the “defendant” moniker).
The collusion framing seems most useful as a hook on which to hang a denial. Good for propaganda, but not much else.
Yes. There is a book entitled “National Security Investigations and Prosecutions” by David Kris and Doug Wilson. It is literally the handbook. Caveat though, it is quite expensive and very technical.
I feel very stupid, but this question has been bugging me from the get go — why is whatever Papadopoulos was doing a motive to obtain a FISA warrant on Page? Did Papa work for him in some capacity?
Also — is there a FISA warrant for Papadopoulos? I realize he was in the UK while up to his brand of attempted no good (so maybe our British friends were helping out), but it would seem more rational to pursue him, based on what the FBI said they knew.
A work or employment relationship would not be required. Overlapping facts and conduct would do it. I haven’t heard of a warrant for Papa, but as a US citizen, it would be required for certain kinds of surveillance, a problem that has more than one workaround.
the washington post’s phillip bump has an interesting article asking the famous question “what did trump know and when did he know it?” :
https://www.washingtonpost.com/news/politics/wp/2018/02/26/what-did-trump-know-and-when-did-he-know-it/
some tidbits:
– “…Trump was interviewed by Fox News’s Jeanine Pirro. She raised the question of collusion — that is, whether elements of the Trump campaign assisted the Russian effort to influence the results of the 2016 election.
“After 18 months, not any kind of reference to any collusion,” Pirro said.
To which Trump replied:
“That is true, Jeanine. You have all these committees, everybody’s looking. There is no collusion. No phone calls — I had no phone calls, no meetings, no nothing. There is no collusion. I say it all the time. Anybody that asks. There is no collusion.”…”
– “… A review of Trump’s public comments from the database at Factba.se reveals no specific denial by Trump since Election Day that he knew about Russian interference during 2016….”
– “… . The House Intelligence Committee released a memo from the Democratic minority outlining its response to allegations posed by Rep. Devin Nunes (R-Calif.)… Included in the new memo was a specific date that had been elusive: The counterintelligence operation looking at whether the Trump campaign aided Russian began on July 31, 2016… “
an article from vox by andrew prokop:
https://www.vox.com/2018/2/26/16964328/trump-tower-meeting-mueller-russia
section 7 of the article details the work of “independent journalist marcy wheeler” :
“… Some other interesting questions have been posed by independent journalist Marcy Wheeler, who has been doing some of the best and most interesting coverage of the Trump-Russia scandal at her site EmptyWheel — work that combines a mastery of the underlying facts with deep subject matter expertise and a talent for skeptical close reading…”
Avattoir: During Shrub’s “administration” the FISA warrant rejections were something like 5 out of over 19,000 requested, and most of those five were reworked and approved. This was reported on at the time, so if Bob Conyers thinks the railroad is in use, it’s not without some evidence to think so.
With that said, the current discussion is not one of those times where the FISC process was abused in my opinion, but let’s put the cards on the table and declassify all of it. The Romans weren’t “snowflakes” and understood: “Let justice be done though the heavens may fall”.
I’m not sure where I got that impression. I’ve been reading through obvious sources like the NY Times Wash Post, Politico and Wikipedia, but that doesn’t go that far — it’s all so fragmented and a lot is obviously biased. I’m just a non-legal world person trying to get a handle on what seems like it’s building toward some ugly climax, either revealing something really bad or else sweeping things up in a major coverup.
I realize Mueller and the FBI aren’t going to give away specifics about what they’re doing, but it’s really frustrating to have so little information about what is in their toolbox. I know a big piece of it is plain old interviewing of sources and suspects, and another piece is analyzing financial and computer records and looking for evidence of crimes.
But the surveillance part, and the rules around it, are a big black box to me. Google yields a ton of fractured information, and a lot of slanted information, but it’s hard to know what US agents might be able to get and how they would get it, short of disguising a guy as a waiter and planting a microphone in his cummerbund and having him record Paul Manafort at Mara Lago.
So again, if anyone has good comprehensive sources for laypeople on what are some of the likely outlines and approaches, reasonably light on the legalese and technical jargon, I’d appreciate it.