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The DOJ IG Report on Carter Page: Policy Considerations

January 6, 2020/7 Comments/in 2016 Presidential Election, emptywheel, FISA, Mueller Probe /by emptywheel

Before and continuing into the holiday break, I wrote a slew of posts on the DOJ IG Carter Page Report. Those are:

The IG Report made nine recommendations, which FBI largely accepted with implementing plans. Those recommendations focus on the paperwork side of FISA applications and the protections against purported politicization. Most of those recommendations (save, especially, the one suggesting Bruce Ohr be punished for sharing national security threat information) are worthwhile. But they are inadequate to ensuring similar problems don’t recur. Moreover, there are questions that should be asked even before we get to “fixing” FISA.

This post attempts to ask some of those questions.

What should FBI have done when faced with a credible allegation Trump’s associates had advance knowledge of a hostile attack on our elections?

This is a question I’ve asked over and over of Republicans, but I’ve never got an answer.

Three of four people who were original subjects of this investigation covered up their actions. There are outstanding questions about all four and there were ongoing investigations into at least Paul Manafort and Mike Flynn when Mueller closed up shop. And a fifth Trump associate — Roger Stone — was found guilty of hiding details of how he tried to optimize the fruits of the Russian attack, without yet revealing what it is that he was hiding. So there’s no question the investigation was merited.

So what should the FBI have done when it got the tip from Australia? The IG Report raises questions about whether FBI should provide defensive briefings in this situation, but not how to conduct an investigation at a time when our country and elections are under active threat.

In retrospect, was the decision not to use other legal process the best one?

Peter Strzok famously lost a fight to investigate more aggressively, the true meaning of his “insurance file” comment. As a result, the FBI did not use any overt methods during the election.

Significantly, that means they didn’t get call records that would have provided a ready explanation for how Papadopoulos had learned Russia wanted to dump emails (particularly in conjunction with what he told CHS 3 about Mifsud). Doing so might have confirmed Carter Page’s claim that Paul Manafort never returned his emails. And it would have identified that Konstantin Kilimnik (who could be targeted under 702) had a suspicious record of communications with Manafort.

Rather unbelievably, FBI may not have asked Apple or Google for Carter Page’s app download history, which is how they usually find out if someone is using encrypted messaging apps (they did not learn what he was using until April 2017).

Particularly given all the chatter about the subjects of investigation, and given that three of them — Page, Manafort, and Papadopoulos — were “fired” from their free campaign jobs because of their ties to Russia, was that really the right decision? And given how successful FBI is at obtaining gags on legal process, was using FISA with Page really that much less invasive or was FISA used simply because his sustained ties to Russian intelligence officers meant FISA was the appropriate framework?

Why did FBI forgo a Section 215 order on Page?

Nothing in the public record suggests FBI got a Section 215 order before they obtained traditional FISA (including physical search) against Page. That’s true, even though the predication for 215 is lower (just talking to an agent of a foreign power, which Page had long been doing, is enough). This would have been a way to obtain the call records and download history that might have indicated that Papadopoulos was a more urgent target than Page, lessening the urgency to get a FISA targeting Page. If FBI in fact did not obtain that 215 order before the content order (once he was approved for the content order, the 215 order would have been presumptively approved), why not, and should they have? Past IG Reports have said the process of applying for a 215 is onerous enough that Agents often forgo it; is that what happened here?

Does the public agree with the FBI about the intrusiveness of informants?

One of the disconcerting aspects of the IG Report is its treatment of informants (Confidential Human Sources, or CHS, in the report). It spends a long time assessing whether the use of informants against Carter Page, Sam Clovis, and George Papadopoulos had the requisite oversight, ultimately concluding FBI followed the rules but the rules for politically exposed people should be more stringent.

Along the way, it revealed that the FBI:

Happened to have an informant on the books (Stefan Halper) with existing ties to three of the subjects of the investigation
Managed to convince someone Papadopoulos trusted (CHS 3) to report on him and used an accelerated process to open him or her as an informant, and tried but failed to get at least two other people to report on him
Had five other people in Trump’s orbit who were informants (Felix Sater might be one of these)
Accepted information obtained voluntarily from one of those informants
Had used informants to targeted the Clinton Foundation during the election period and at least some of those informants were handled by an Agent who wanted her to lose

That’s probably on top of Patrick Byrne, if indeed his claims to have been tasked against Clinton and Maria Butina in 2016 are true.

That’s a lot of informants situated to report on very powerful people.

Trump’s supporters have declared all this proof that they were “spied” on (ignoring the targeting against Hillary). Meanwhile, the FBI has pointed out that they more than complied with FBI’s rules on using informants, though there was less discussion in the IG Report about the fact that per its Domestic Investigations and Operations Guide, FBI could have used these informants at lower levels of predication. Before the IG Report recommended rules about heightened review (much of which would have been satisfied in this case anyway), we might ask whether we, as the public, agree that the use of informants is really as unintrusive as FBI thinks. And does it involve tradeoffs as compared to other methods? For example, which would have been preferable, getting Papadopoulos’ call records (which would have shown his ties to Mifsud), or throwing a series of informants at him?

Is the consideration of least intrusive means adequately reviewed?

The DIOG requires that FBI agents at least consider whether the “least intrusive” means of investigation will be an appropriate investigative step. The IG Report reviews this requirement, which is meant to ensure FBI agents balance privacy considerations with the import of the investigation, but never comments on whether the review here was correct. Moreover, it seems that there’s a rule that lowers this consideration significantly when a matter is deemed to pertain to national security (as this would have been).

I’ve long wondered whether FISA process in general gets adequate review on whether it’s really the correct least intrusive means judgment.

Is the FBI Director declaration regarding other investigative techniques adequately reviewed?

FISA requires that the FBI Director or his designee certify that the information the FISA application wants to obtain, “cannot reasonably be obtained by normal investigative techniques.” The IG Report notes this, largely because that’s what Jim Comey and Andrew McCabe reviewed the Page applications for, not probable cause. But it did not discuss how this determination is made, and I would bet a lot of money that this is an area where FISA could use more review.

Particularly given the use of gags in so much criminal process and the widespread availability of fairly exotic surveillance techniques, what is the measure for this declaration?

Does FBI conduct certain investigative techniques using FISA to keep them secret?

I noted that the FBI was close to concluding they didn’t need another FISA on Carter Page, but then learned he had used some encrypted app, and so got another FISA. This supports my suspicion that the FBI will use certain surveillance techniques under cover of FISA they otherwise would eschew just to keep it secret. There may be good reason for that (indeed, it might ensure that the most exotic surveillance only gets used with much closer District Court judge review than magistrates normally give warrant applications), but it would also skew the incentives for using FISA. While policy makers may not need to know what those techniques are, they deserve to know if FISA makes certain otherwise unavailable techniques available.

Why do we need FISA?

I don’t mean to be glib. Since the IG Report came out, a lot of people who’ve used it have said we need to preserve this ability. But they’re not explaining why. That’s a two-fold question. First, why does FBI need a different probable cause standard for foreign intelligence (the likely and noncontroversial answer is, spying on a lot of people, including diplomats, who haven’t committed an obvious crime). But the other question is, why can’t that level of secrecy and court review be accomplished at normal district courts? In the wake of 9/11, most courts (especially most courts that will regularly have FISA cases, like DC, NY, VA, and CA) have sophisticated court security procedures that would seem to accomplish much of what FISA was originally intended for. Having normal district judges — even if only a subset of them — review FISA applications might inject more viewpoints onto the Fourth Amendment review. Furthermore, it would ensure that more judges reviewing such applications are also seeing the kinds of criminal cases that might arise from them (something that I’ve argued was useful with Michael Mosman, who ironically was the judge that approved Page’s second FISA application).

In recent years, the FBI has devolved its FISA process to its field offices; why can’t that happen in the courts, as well?

Is relationship between lawyers and FBI agents on FISA too attenuated?

The explanation the IG Report used for blaming the FBI agents for all the missing information in FISA applications stems from the more attenuated involvement of National Security Division lawyers (Office of Intelligence, or OI here) in warrant applications than happens in traditional criminal investigations.

NSD officials told us that the nature of FISA practice requires that 01 rely on the FBI agents who are familiar with the investigation to provide accurate and complete information. Unlike federal prosecutors, OI attorneys are usually not involved in an investigation, or even aware of a case’s existence, unless and until OI receives a request to initiate a FISA application. Once OI receives a FISA request, OI attorneys generally interact with field offices remotely and do not have broad access to FBI case files or sensitive source files. NSD officials cautioned that even if 01 received broader access to FBI case and source files, they still believe that the case agents and source handling agents are better positioned to identify all relevant information in the files.

From that the IG Report decides that the problems in the Page applications arose through sloppiness or worse from the agents. But perhaps this is entirely the wrong conclusion. Perhaps, instead, the problems arose from OI lawyers having less ownership of what happens downstream from a FISA application than normal prosecutors would have, meaning they’re outsourcing more decision-making about relevance to agents whose motivations are at odds with that kind of decision-making. In other words, the remedy for this may not be instituting more checklists (which is what DOJ IG recommended and FBI has committed to), but changing the relationship between OI lawyers and the FBI agents applying for FISA?

Is there any legitimate reason to withhold review from defendants?

When Congress passed FISA, it envisioned that at least some defendants would review their FISA applications, but that hasn’t happened, at all. In the interim, the “wall” between FISA and criminal prosecutions has come down, making it more likely that FISA collection will end up as part of a criminal prosecution. Indeed, former NSD AAG David Kris suggests defendants should get review, which would mean that agents would know that any given FISA application might get shared with a defendant if it turned into a criminal case. At the very least, it seems that FBI and NSD should explain to Congress why they shouldn’t be asked to do this.

One of the problems may be with the definition of “aggrieved” under FISA. That includes both the target and those subject to collection under a FISA order. For example, Carter Page would have been aggrieved in Victor Podobnyy’s FISA order (which is probably where the reports that he had been collected under FISA in the past came from), and Mike Flynn would have been aggrieved under a FISA application targeted at Sergey Kislyak. Normally, only the target of a criminal warrant would get to challenge it. Effectively, one way the government is likely using FISA is to find out what Americans are talking to suspected spies, so the FBI would not want to reveal that use. (Though one of the problems likely arises from how the government defines “facilities” that can be targeted, because they don’t have to be owned by the person being targeted.)

Perhaps, then, one way to extend review to the actual defendants who were the targets of FISA surveillance would be to change the definition of aggrieved party, but along the way to change how searches on already collected FISA data are conducted.

What are the boundaries between FISA’s agent of a foreign power, 18 USC 951’s Agent of a Foreign Power, and FARA?

As I noted, the entire DOJ IG Report may suffer from a misunderstanding about what crime(s) FBI was targeting. Until 11 days after the report was released, it appeared to believe that Trump’s aides were only being investigated for FARA, which is basically unregistered political influence peddling. That appears to have been true, but it’s almost certainly not true of Page, against whom there was already an investigation into his willingness to share non-public economic information Russia’s spies ask for. If that’s true that the entirety of the First Amendment analysis in the report is superfluous, because Page — the only Trump aide targeted under FISA — had already met the standards for targeting under the First Amendment before FBI turned to his political speech in August 2016. That is, because Page was already being investigated for sharing non-political stuff with Russian spies , there should never have been a First Amendment question.

Particularly given the different status of FARA in 1978 when FISA was passed, its virtual lapse for years, followed by a recent focus on it in recent years (at a time when there are fewer protections against foreign influence peddling). it seems vitally important for Congress to demand an understanding of how these three statutory regimes intersect, and — hopefully — provide some clarity on it for everyone else.

Update: Added the question about various Foreign Agent designations.

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

January 6, 2020/41 Comments/in 2016 Presidential Election, emptywheel, FISA /by emptywheel

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

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

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

This post will address the following topics:

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

The predication of the investigation

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

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

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

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

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

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

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

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

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

The errors impacting Carter Page

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

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

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

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

Notice about Page’s past CIA contacts

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

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

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

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

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

Inaccurate descriptions of Steele

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

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

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

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

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

Failure to include exculpatory information

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

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

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

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

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

Whether Carter Page should have been targeted

The errors in the Page applications are inexcusable.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Whether Page would have been able to suppress these warrants

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How Paul Manafort Lied to Mueller to Protect Jared Kushner

January 3, 2020/48 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Paul Manafort appears to have saved the President’s son-in-law by lying to Mueller’s prosecutors.

That’s what his 302 from September 13, 2018, released yesterday under FOIA, appears to show.

The 302 records the last interview before he sealed his plea deal (starting at PDF 223). Much of it focuses on how the campaign dealt with WikiLeaks. The 302 includes the following topics:

A reminder that on the previous two days, Manafort had lied about meeting Konstantin Kilimnik in February 2017, but after being shown travel records in this interview he admitted it.
Mostly redacted (for ongoing investigation likely tied to Roger Stone’s prosecution) discussions about how Manafort didn’t want Trump “distracted by the titillation of a WikiLeaks release.”
A claim that the RNC would handle press on the WikiLeaks release, even though three Trump staffers had been strategizing just that for weeks.
Manafort’s claim he was surprised by the “Russia are you listening” comment, which is consistent with other people’s claims, if unbelievable.
Language designed to sustain a claim that Manafort had no idea why Trump attributed the stolen emails to Russia in his “Russia are you listening” comment.
A claim that no one suspected Trump of “colluding” with Russian before Robbie Mook made the allegation.
A discussion that ties the two October 7 events (the release of the Podesta emails and the Access Hollywood tape) with details of his own crimes in Ukraine, along with an admission that Manafort spoke to Trump about all that.
Manafort’s claims to be absolutely ignorant about whether Trump had any entanglements with Russia.
Lies about (almost certainly) Steve Calk’s awareness that his bank loan paperwork submission was false.

Between topic 8 and 9, the 302 also captures the basis for one of Mueller’s claims that Manafort lied during his cooperation agreement, an allegation (that Judge Amy Berman Jackson upheld) that Manafort lied about another DOJ investigation to protect someone.

I laid out what the breach determination disclosed about the investigation here. Basically, shortly before Manafort left the campaign, someone (which it’s now clear is almost certainly Roger Stone and indeed appears to have come up in Stone’s trial) offered up a way to save the candidate. The question is how closely involved someone else — someone with a 7-character name — got involved in this effort to save the candidate. According to the breach proceedings, Manafort told one story that incriminated the person with a 7-character name when first interviewed, prior to getting his plea deal, on September 13 (that is, in this 302). But when Mueller’s team brought prosecutors from another investigation in to hear the story on October 5, Manafort at first gave a very different version, one that was much less incriminating to that 7-character name person, a version that aligned with the story that person was telling the FBI at the time, and that put more of the blame on the 5-character name person, presumably Stone.

It appears highly likely that the person he was protecting was Jared Kushner.

In the breach hearing (discussion starts on page 110), the names of both people involved are redacted.

But in the 302 released yesterday, Kushner’s name is not redacted.

Numerous times in Paul Manafort’s texts with Sean Hannity (who, in another of the 302s released yesterday, he admitted to treating as a back channel to Trump), Manafort talked about his certainty that Mueller would go after Kushner. Indeed, he claimed that’s who he would have to give up to get a plea deal.

We now know he discussed Kushner the day before he got a plea deal. And then he reneged on telling that story.

As I disclosed in 2018, I provided information to the FBI on issues related to the Mueller investigation.

Was Chris Ruddy a Second Back Channel between Manafort and Trump?

January 3, 2020/3 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Yesterday, Buzzfeed released the next tranche of FOIAed Mueller 302s. There’s actually some interesting details. They show:

Details of how KT McFarland lied and then, when she realized Mueller had obtained Transition emails, cleaned up her story in a panic
Some but not all of Jerome Corsi’s 302s, which are actually fairly informative
Some but not all of Manafort’s 302s where he lied (one of which I’ll return to)
Manafort’s admission he used Sean Hannity as a go-between with Trump

It also includes Chris Ruddy’s 302 (starting at PDF 58). As DOJ has been doing with most 302s, they’ve left mostly stuff that showed up in the Mueller Report unredacted, hiding the rest under deliberative (b5) exemptions.

But I’m interested in Ruddys’ 302 because four paragraphs that show a b7ABC redaction, which mostly has been used to hide stuff pertaining to Roger Stone.

I doubt this redaction pertains to Stone, though, at least not exclusively.

As I noted last June when Amy Berman Jackson liberated the Sean Hannity texts with Manafort, she withheld another set of communications (probably showing Kevin Downing reached out to the media, as he had done with Hannity, which is why they were submitted as part of Manafort’s sentencing). She withheld the other texts because of an ongoing proceeding.

At the time, I suggested that the other proceeding might pertain to Chris Ruddy because:

Ruddy was a key source for a key Howard Fineman story in the same time frame as Kevin Downing had reached out to Hannity
Prosecutors probably obtained all of Manafort’s WhatsApp texts after learning he had been witness tampering using that account
Ruddy testified to Mueller the day after they had extracted the Manafort-Hannity texts, suggesting he was a likely candidate to be the other person whose texts showed ongoing communication with the media

Here’s my logic from that post:

All that provides one possible explanation for why Manafort decided it’d be a good idea to put his lawyer directly in touch with Hannity, in violation of her gag order. But that doesn’t explain the other reason ABJ decided not to release the second set of texts: some “ongoing matters” that require the communications remain secret.

[snip]

There’s one other notable date in that time period. As I’ve noted, the Downing – Hannity discussions came just before Howard Fineman reported, on January 30, 3018, not only that Trump planned to beat Mueller by having Sessions investigate him…

Instead, as is now becoming plain, the Trump strategy is to discredit the investigation and the FBI without officially removing the leadership. Trump is even talking to friends about the possibility of asking Attorney General Jeff Sessions to consider prosecuting Mueller and his team.

… But also reported that Trump was confident that Manafort would not flip on him.

He’s decided that a key witness in the Russia probe, Paul Manafort, isn’t going to “flip” and sell him out, friends and aides say.

Chris Ruddy was one source for the Fineman story. And Ruddy was interviewed by the FBI about his knowledge of Trump’s efforts to obstruct justice on June 6, 2018, the day after the FBI extracted the Hannity texts from Manafort’s phone.

On Monday, June 12, 2017, Christopher Ruddy, the chief executive ofNewsmax Media and a longtime friend of the President’s, met at the White House with Priebus and Bannon.547 Ruddy recalled that they told him the President was strongly considering firing the Special Counsel and that he would do so precipitously, without vetting the decision through Administration officials.548 Ruddy asked Priebus if Ruddy could talk publicly about the discussion they had about the Special Counsel, and Priebus said he could.549 Priebus told Ruddy he hoped another blow up like the one that followed the termination of Corney did not happen.550 Later that day, Ruddy stated in a televised interview that the President was “considering perhaps terminating the Special Counsel” based on purported conflicts of interest.551 Ruddy later told another news outlet that “Trump is definitely considering” terminating the Special Counsel and “it’s not something that’s being dismissed.”552 Ruddy’s comments led to extensive coverage in the media that the President was considering firing the Special Counsel.553

547 Ruddy 6/6/18 302, at 5.

548 Ruddy 6/6/18 302, at 5-6.

549 Ruddy 6/6/ l 8 302, at 6.

550 Ruddy 6/6/18 302, at 6.

551 Trump Confidant Christopher Ruddy says Mueller has “real conflicts” as special counsel, PBS (June 12, 2017); Michael D. Shear & Maggie Haberman, Friend Says Trump ls Considering Firing Mueller as Special Counsel, New York Times (June 12, 2017).

If you’re going to contact one of Trump’s close media allies — Hannity — to send Trump an ultimatum about Manafort and get the media person on board for a plan to undercut Mueller, you’re likely to contact Trump’s other closest media ally, Chris Ruddy.

None of that answers what Downing had to explain to Hannity and what the ongoing proceeding might be. But it does suggest that Ruddy was in the same kind of discussion circle in January 2018 as Hannity was.

The four paragraphs in Ruddy’s 302 that, nine months after Mueller finished remain redacted because of an ongoing investigation, suggest my speculation was probably right, and that the ongoing proceeding pertains to communications between either Manafort or Downing back before Howard Fineman reported that Trump had confidence that the one witness who might hurt him, Manafort, would not flip on him.

I’m not sure what ongoing proceeding that would entail. And if Manafort was also using Ruddy as a back channel to Trump, it would mean his later testimony was false, because he didn’t also admit to using Ruddy in that fashion.

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

December 30, 2019/49 Comments/in 2016 Presidential Election, emptywheel, FISA, Mueller Probe /by emptywheel

I want to start this post by reiterating that I agree with the conclusion of the DOJ IG Report on Carter Page that there were significant errors with the Carter Page FISA applications, especially the reauthorizations. I think the Report provides a lot of valuable detail about the Crossfire Hurricane investigation, though not necessarily the details about the FISA process or keeping the country safe that policy makers need (which I’ll return to). I think its recommendations are worthwhile but insufficient to fix the problems identified by the review.

So I find the IG Report an important review of the FISA process.

But it is also the case that the IG Report commits precisely the kinds of errors it finds inexcusable in the FBI.

As I lay out here, the major problems with the Carter Page FISA applications all amount to FBI not providing (first) DOJ’s Office of Intelligence and then the FISA Court critical information (regarding Page’s 2009-2013 ties to the CIA, information that undermine claims that Christopher Steele and the dossier were reliable, and other information — some that contradicted the dossier — that the IG Report deems exculpatory). The IG Report also found 17 items over the course of four applications that did not meet the Woods procedure requirement of being backed by documentation in the file (this table lays out that information, along with all the derogatory information in Page’s applications). Some of these Woods procedure problems reflect bureaucratic sloppiness in the procedure that’s supposed to guarantee reliability on FISA issues; some are more significant errors.

Given those errors (again, errors I significantly agree are shown in the Report), then, DOJ IG ought to make damn sure they don’t commit the same kinds of errors they deem serious enough to refer the entire FBI chain of command for discipline up to and including firing). But they did.

Errors identified on publication

Let’s start with the corrections made to the report, first on December 11 and then on December 20. On December 11, there were three changes, one of which reflected prior declassification of the dates of the FISA orders targeting Page and additional declassification regarding Sergei Millian, The other two changes are corrections of inaccurate claims made in the first release of the report.

The first involves an utterly central part of DOJ IG’s inquiry: at what point in time the FBI got informants to interview Carter Page, Sam Clovis, and George Papadopoulos. When the report was initially released, it falsely claimed that Page and Papadopoulos had been targeted with informants before FBI had formally opened its investigation on July 31, 2016.

On pages iv, xvi, 400, and 407, we changed the phrase “before and after” to “both during and after the time.” In all instances, the phrase appears in connection to the time period during which we found that the Crossfire Hurricane team used Confidential Human Sources (CHSs) to interact and consensually record conversations with Page and Papadopoulos. The corrected information appearing in this updated report reflects the accurate information concerning these time periods that previously appeared, and still appears, on pages 305 and 313 (e.g., the statement on page 305 that “the Crossfire Hurricane team tasked CHSs to interact with Page and Papadopoulos both during the time Page and Papadopoulos were advisors to the Trump campaign, and after Page and Papadopoulos were no longer affiliated with the Trump campaign”).

Based in part on the fact that Stefan Halper met Carter Page before he was formally tasked as an informant to collect information from him, and in part on George Papadopoulos’ paranoid rants, the frothy right had been accusing the FBI of using informants before the investigation was opened. And when then Report was initially released, it stated that that had, in fact occurred, even though the narrative in the Report made it clear that that did not happen (though it did show that the FBI had used informants before either Page or Papadopoulos had been kicked off the campaign). So the initial report falsely claimed the Report confirmed a frothy right conspiracy, but within days DOJ IG corrected that false claim. In other words, before subjected to the scrutiny of public review, the Report made a false claim about a core topic of its investigation.

Another of the corrections made on December 11 involves information about what an interview of Christopher Steele’s Sub-Source said when the FBI interviewed him or her to assess the credibility of Steele’s reporting. The report originally stated that the Sub-Source affirmatively stated he or she had no discussion with Steele about WikiLeaks, but the revised Report instead stated that the Sub-Source did not recall having such a discussion.

On pages xi, 242, 368, and 370, we changed the phrase “had no discussion” to “did not recall any discussion or mention.” On page 242, we also changed the phrase “made no mention at all of” to “did not recall any discussion or mention of.” On page 370, we also changed the word “assertion” to “statement,” and the words “and Person 1 had no discussion at all regarding WikiLeaks directly contradicted” to “did not recall any discussion or mention of WikiLeaks during the telephone call was inconsistent with.” In all instances, this phrase appears in connection with statements that Steele’s Primary Sub-source made to the FBI during a January 2017 interview about information he provided to Steele that appeared in Steele’s election reports. The corrected information appearing in this updated report reflects the accurate characterization of the Primary Sub-source’s account to the FBI that previously appeared, and still appears, on page 191, stating that “[the Primary Sub-Source] did not recall any discussion or mention of Wiki[L]eaks.”

The distinction is important because Steele claimed — plausibly — that his Sub-Source was shading how much he gave Steele, given how controversial things had become by 2017; Steele also claims to have documentation of what his Sub-Source claimed when.

Whatever the truth on this point, as the correction acknowledges, the FBI’s 302 of the interview uses the “did not recall” language.

[The Primary Sub-source] recalls that this 10-15 minute conversation included a general discussion about Trump and the Kremlin, that there was “communication” between the parties, and that it was an ongoing relationship. (The Primary Sub-source] recalls that the individual believed to be [Source E in Report 95] said that there was “exchange of information” between Trump and the Kremlin, and that there was “nothing bad about it.” [Source E] said that some of this information exchange could be good for Russia, and some could be damaging to Trump, but deniable. The individual said that the Kremlin might be of help to get Trump elected, but [the Primary Sub-source] did not recall any discussion or mention of Wiki[L]eaks. [my emphasis]

In other words, the FBI had an official source for the Sub-Source’s comments, the 302, and the DOJ IG, in its first release, used language that deviated from what the official source said.

This is precisely the kind of error the Report pointed to as Woods procedure violations, such as the FBI’s description of Steele’s reporting as “corroborated and used in criminal proceedings,” when in fact the official document said something different. The Report complains about a similar variance of phrasing in the renewals specifically as they pertain to whether Steele was “high-ranking” or “moderately senior.”

One might excuse the discrepancy because — after all — DOJ IG fixed this language almost as soon as it became public. Except that language pertaining to Steele’s Sub-Source was declassified the night before the Report release, without Steele having had an opportunity to read it. Thus, it is language that appeared in public in violation of DOJ IG’s rules on document reviews, so might have been avoided if it had followed its normal process.

Finally, one of the corrections made on December 20 — fixing of an error of fact regarding the laws that criminalize acting as an agent of a foreign government or principal without registration, but claiming falsely the correction just amounted to adding a reference to the statute in question — would also be the same kind of error that, in the FISA context, would amount to a Woods procedure violation, as it asserts the statute said something it didn’t. Furthermore, a later discussion of the Senate Report on FISA (still) miscites a page discussing FARA, something else that would count as a Woods violation, particularly given that the passage of the Senate Report cited actually undermined the point DOJ IG was trying to make, explaining why Carter Page’s direct ties to known Russian intelligence officers got well past (according to the intent of Congress) the concerns about him being targeted for his First Amendment activities.

Information excluded from the Bruce Ohr discussion

As this post lays out, the IG Report left out at least two key details in its discussion of Bruce Ohr’s communications with Christopher Steele. First, it made no explicit mention of the at least five communications Ohr had with Steele in 2016 prior to their July 30, 2016 brunch meeting. Those contacts were significantly about — but probably not limited to — Oleg Deripaska. Including those contacts would make it clear that the Deripaska reference during their July 30 meeting was a continuation of past discussions, not a new reference tied to the dossier (indeed, nothing that could relate to the Deripaska feud with Paul Manafort showed up in the dossier until October 19, and even then it would have simply been a reference to his Russian ties). Moreover, it would show that all of the contacts between them were a continuation of past information sharing tied to Ohr’s job.

In addition, the IG Report’s discussion of the July 30 meeting omits a Steele mention about Russian doping. That reference, like the multiple references to topics other than Trump in 2017 that the IG Report does acknowledge, make it clear that Ohr and Steele’s communications always included information about their mutual concerns about transnational organized crime.

In other words, DOJ IG twice left out or glossed over details that would have made it clear the Ohr – Steele communications consisted of more than just dirt on Trump, the equivalent of leaving out exculpatory information in the Carter Page application. And the IG Report’s entire presentation of their Deripaska discussions overstate the degree to which those discussions amounted to to information from the dossier (though there are a lot of other problems with the Deripaska-related communications between the two men).

Possible information excluded from the George Papadopoulos transcript

This post shows that, rather than being exculpatory (as the frothy right has long claimed), the substance of Papadopoulos’ conversations with Stefan Halper and another informant were actually fairly damning. The IG Report does not complain that the Carter Page applications leave out the damning details of these interactions (including that both he and Page spoke similarly about an October surprise).

It does, however, complain that the Carter Page applications leave out Papadopoulos’ denials that the campaign was trying to optimize the WikiLeaks releases, even though those denials were internally inconsistent and Papadopoulos explained to the second informant he had made a categorical denial to Halper because he worried Halper might tell the CIA if had made anything but such a categorical denial.

So the IG Report’s case that these denials should have been included in the Carter Page applications is not all that convincing (though it does therefore endorse one of the frothy right complaints that led to this investigation). DOJ lawyer Stu Evans, who generally always supported more disclosure, treated Papadopoulos’ denials like Joseph Mifsud’s later claims not to have had advance knowledge of the email release, as cover stories, which is precisely what the FBI team believed them to be in real time.

As part of its investigation, the FBI interviewed Mifsud in February 2017, after Renewal Application No. 1 was filed but before Renewal Application No. 2. According to the FD-302 documenting the interview, Mifsud admitted to having met with Papadopoulos but denied having told him about any suggestion or offer from Russia.403 Additionally, according to the FD-302, Mifsud told the FBI that “he had no advance knowledge Russia was in possession of emails from the Democratic National Committee (DNC) and, therefore, did not make any offers or proffer any information to Papadopoulos.”

[snip]

Evans told us that he could not say definitively whether QI would have included this information in subsequent renewal applications without discussing the issue with the team (the FBI and QI), but Evans also said that Mifsud’s denial as described by the QIG sounded like something “potentially factually similarly situated” to the denials made by Papadopoulos that QI determined should have been included. 405

In other words, Evans would have treated both of these denials (correctly, as subsequent investigation would prove) as lies, and dealt with them however such lies are treated in FISA applications. Probably, they would be used to suggest that the individuals in question were trying to keep any interactions secret, therefore supporting rather than undermining a claim that clandestine intelligence cooperation was happening.

But there’s a detail that Papadopoulos has claimed he also included in his comments to Halper that doesn’t show up in the ellipsis-filled excerpts of Papadopoulos’ conversations with Halper. Along with admitting that he likened optimizing the WikiLeaks releases to “treason,” Papadopoulos claimed he pushed back by saying, “I really have nothing to do with Russia.” If Papadopoulos did, in fact, say anything like that, it would have amounted to proof he was lying, especially since the FBI was tracking his ongoing interactions with Sergei Millian at the time, whom they would soon open a counterintelligence investigation into. The IG’s office could not tell me whether such language appeared in the full transcript. But if such language was excluded, then it would amount to an exclusion of a material detail of the sort that the IG Report complains about FBI excluding in Page’s applications.

What makes it into a 302 or not

One of the Woods procedure errors the IG Report rightly describes is that the FBI 302 that purportedly included a discussion of Carter Page being picked up in a limo in Moscow in July 2016 does not actually include the reference.

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 We asked both agents that interviewed this individual, Case Agent 6 and Case Agent 7, if this individual stated during the interview that Page was picked up in a chauffeured car. Case Agent 6 told us he did recall the individual making this statement; Case Agent 7 did not recall and stated he may have made the statement during a telephone interview that occurred later.

Confusingly, in the appendix where it lists this, it attributes the comment to US person 1, which is presumably how DOJ referred to the source in the application. This is not a reference to Sergei Millian, though he is referred to as Person 1 in the IG Report.

Rather, this was a reference to Yuval Weber, the son of the Schlomo Weber, the rector of the New Economic School in Moscow who invited Page to Moscow in 2016. Per the Mueller Report, Yuval Weber was interviewed on June 1, 2017 (his father was interviewed on July 28, 2017).

This is absolutely a fair complaint.

But the IG Report does not, similarly, complain about or fully incorporate something else that didn’t make an FBI 302. As it describes, the notes from at least one of the attendees at the November 21, 2016 meeting where Bruce Ohr provided context about the Steele dossier included background to Ohr’s description that Steele was “desperate” Trump not be elected.

Steele was “desperate” that Trump not be elected, but was providing reports for ideological reasons, specifically that “Russia [was] bad;”

That is, Ohr’s observation was not about a political view on the part of Steele, but was instead a comment about his concerns about Russia.

This accords with what Steele told the IG’s investigators.

When we interviewed Steele, he told us that he did not state that he was “desperate” that Trump not be elected and thought Ohr might have been paraphrasing his sentiments. Steele told us that based on what he learned during his research he was concerned that Trump was a national security risk and he had no particular animus against Trump otherwise.

Mind you, Steele’s concerns about Trump’s election should have been included in the Carter Page applications in any case. But the context of why Steele was so concerned doesn’t appear in the balance of the IG Report’s discussion of this reference, which thereby treats what the investigation showed was a concern about national security as, instead, political bias.

The FBI is always wrong and DOJ is always right

The IG Report shows remarkable consistency for treating similar behavior from people at FBI as damning while brushing off similar behavior from DOJ lawyers or managers. As I noted in this post, for example, it suggests Jim Comey should have demanded to learn more details about Bruce Ohr’s interactions with Christopher Steele in a November 2016 briefing where Ohr was mentioned, but doesn’t ask why no one in DOJ’s chain of command who got briefed in February 2017 on Ohr’s role didn’t demand more information. Effectively Comey gets held accountable for something mentioned in a briefing, but DOJ lawyers are not. The IG Report admits this explicitly, saying that because FBI would have access to more information, they should be held accountable for more.

Thus, while we believe the opportunities for learning investigative details were greater for FBI leadership than for Department leadership, we were unable to conclusively determine whether FBI leadership was provided with sufficient information, or sufficiently probed the investigative team, to enable them to effectively assess the evidence as the case progressed.

The IG Report applies the same standard to more junior people as well. For example, an Office of Intelligence lawyer excuses himself from including Carter Page’s (truthful) denials in the FISA application because the FBI agent did not flag statements for him, including in a 163-page transcript.

We found that information about the August 2016 meeting was first shared with the 01 Attorney on or about June 20, 2017, when Case Agent 6 sent the 01 Attorney a 163-page document containing the statements made by Page during the meeting. As described in Chapter Seven, Case Agent 6, to bolster probable cause, had added to the draft of FISA Renewal Application No. 3 statements that Page made during this meeting about an “October Surprise” involving an “email dump” of “33 thousand” emails. The OI Attorney told us that he used the 163-page document to accurately quote in the final renewal application Page’s statements concerning the “October Surprise,” but that he did not read the other aspects of the document and that the case agent did not flag for him the statements Page made about Manafort. The OI Attorney told us that these statements, which were available to the FBI before the first application, should have been flagged by the FBI for inclusion in all of the FISA applications because they were relevant to the court’s assessment of the allegations concerning Manafort’s use of Page as an intermediary with Russia. Case Agent 6 told us that he did not know that Page made the statement about Manafort because the August 2016 meeting took place before he was assigned to the investigation. He said that the reason he knew about the “October Surprise” statements in the document was that he had heard about them from Case Agent 1 and did a word search to find the specific discussion of that topic.

Regarding the similar statement Page made during one of his March 2017 interviews with the FBI, the 01 Attorney told us that Case Agent 6 also did not flag this statement for him, but added that he (OI Attorney) should have noticed the statement himself in the interview summary Case Agent 6 forwarded to him on March 24, 2017, since it was only five pages, and the 01 Attorney had read the entire document.

[snip]

Case Agent 6 told us that he did not know that Page made the statement about Manafort because the August 2016 meeting took place before he was assigned to the investigation. He said that the reason he knew about the “October Surprise” statements in the document was that he had heard about them from Case Agent 1 and did a word search to find the specific discussion on that topic. Case Agent 6 further told us that he added the “October Surprise” statements in consultation with the 01 Attorney after the 01 Attorney asked him if there was other information in the case file that would help support probable cause.

In reality, both the FBI Agent and the OI lawyer should be held to the standard of reading the materials in question.

A more remarkable example comes in a passage where the IG Report claims NSD had “no indication” of seven problems it found in the first Carter Page application, but then describes that the FBI Agent had included details on one of them in an email to the OI lawyer in support of the application.

3. Omitted information relevant to the reliability of Person 1, a key Steele sub-source (who, as previously noted, was attributed with providing the information in Report 95 and some of the information in Reports 80 and 102 relied upon in the application), namely that (1) Steele himself told members of the Crossfire Hurricane team that Person 1 was a “boaster” and an “egoist” and “may engage in some embellishment” and (2) the FBI had opened a counterintelligence investigation on Person 1 a few days before the FISA application was filed;

[snip]

We found no indication that NSD officials were aware of these issues at the time they prepared or reviewed the first FISA application. Regarding the third listed item above, the OI Attorney who drafted the application had received an email from Case Agent 1 before the first application was filed containing the information about Steele’s “boaster” and “embellishment” characterization of Person 1, whom the FBI believed to be Source E in Report 95 and the source of other allegations in the application derived from Reports 80 and 102. This information was part of a lengthy email that included descriptions of various individuals in Steele’s source network and other information Steele provided to the Crossfire Hurricane team in early October 2016. The OI Attorney told us that he did not recall the Crossfire Hurricane team flagging this issue for him or that he independently made the connection between this sub-source and Steele’s characterization of Person 1 as an embellisher. We believe Case Agent 1 should have specifically discussed with the OI Attorney the FBI’s assessment that this subsource was Person 1, that Steele had provided derogatory information regarding Person 1, and that [redacted], so that OI could have assessed how these facts might impact the FISA application.

Later, the IG Report explicitly admits that it is doing this, holding the FBI responsible because the DOJ lawyers didn’t read what the FBI provided them.

While we found isolated instances where a case agent forwarded documentation to the OI Attorney that included, among other things, information omitted from the FISA applications, we noted that, in those instances, the Crossfire Hurricane team did not alert the OI Attorney to the information.

It then claims that FBI did not give OI a chance to consider information it shared with OI.

We do not speculate as to whether or how this additional information might have influenced the decisions of senior leaders who supported the applications, if they had known all of the relevant information. Nevertheless, we believe it was the obligation of the agents who were aware of the information to ensure that OI and the decision makers had the opportunity to consider it, both to decide whether to proceed with the applications and, if so, how to present this information to the court.

From a policy perspective, the IG Report provides a more useful observation about the FBI-OI relationship that explains and should be fixed to address the problem of OI not integrating information FBI provided them: that the lawyers in OI aren’t involved in an investigative role like prosecutors who would file a criminal warrant application.

As described in Chapter Five, NSD officials told us that the nature of FISA practice requires that 01 rely on the FBI agents who are familiar with the investigation to provide accurate and complete information. Unlike federal prosecutors, OI attorneys are usually not involved in an investigation, or even aware of a case’s existence, unless and until OI receives a request to initiate a FISA application. Once OI receives a FISA request, OI attorneys generally interact with field offices remotely and do not have broad access to FBI case files or sensitive source files. NSD officials cautioned that even if OI received broader access to FBI case and source files, they still believe that the case agents and source handling agents are better positioned to identify all relevant information in the files. In addition, NSD officials told us that OI attorneys often do not have enough time to go through the files themselves, as it is not unusual for OI to receive requests for emergency authorizations with only a few hours to evaluate the request.

Rather than incorporating this important observation into its findings, thereby identifying a process failure with FISA that likely applies to all FISA applications, the IG Report instead just blames the FBI. This is equivalent to downplaying honest explanations for Carter Page’s enthusiasm for sharing non-public information with Russian intelligence officers — that CIA said it was okay (which would not explain all of his interactions with Russian spies in any case).

Again, I’m not knocking the report as a whole. In much the same way that there was a lot of evidence against Carter Page even given the problems with his FISA applications, the IG Report is important and valuable in spite of these problems.

But the problems probably provide a far better answer to the question posed by the IG Report as a whole: what explains the errors or missing information in the Carter Page FISA applications. In a really worthwhile podcast on the report, Stewart Baker suggests the disproportionate blame on FBI may arise from the scope of DOJ IG’s authority; it is not permitted to criticize the work of prosecutors. Assessed along with DOJ IG’s past reports on Trump targets, these errors may raise questions of bias, whether that bias stems from a failure to reframe investigative missions the IG receives to eliminate the assumptions who assign them (as almost certainly happened in the IG Report’s treatment of Bruce Ohr), or a more general willingness to serve as Trump’s hatchetman (I’ll return to this in a post on Andrew McCabe’s lawsuit).

But the explanation could be and — for many of these errors — likely is more simple. As Julian Sanchez argued convincingly, the better explanation is probably confirmation bias. Once DOJ IG came to believe FBI fucked up (possibly as early as the report on the Hillary investigation), everything it found seemed to confirm that conclusion. That’s natural and not something I am immune to either (and I’m sure I’ll have my share of embarrassing errors in this post!). But particularly with FISA — which disproportionately is used with people with Chinese or Islamic ties — that kind of confirmation bias can end up being discriminatory.

That, again, provides perhaps the most important lesson this report offers about FISA. DOJ IG was able to fix several of its errors because making the report public subjected its work to scrutiny that identified the errors; I’ve been able to point to others simply by an extended deep dive or consulting other public records on these matters, like a Judicial Watch FOIA or the Mueller Report. The problem with FISA applications, however, is they never get exposed to such scrutiny, so that errors that might be addressed in criminal affidavits aren’t for FISA applications. In that Baker podcast, David Kris argued that one way to fix these problems is to let any defendants against whom FISA is used in a prosecution access their application (something that could be done under the CIPA process).

Committing the same kinds of errors it criticizes doesn’t make this IG Report useless or wrong about its key findings on the problems with the Carter Page application (though it does make the recommendations that the FBI and Bruce Ohr be disciplined far weaker). But it does make a meta point about the value of transparency for counteracting confirmation bias.

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

December 24, 2019/36 Comments/in 2016 Presidential Election, emptywheel, FISA, Mueller Probe /by emptywheel

I’m still working through my deep dive of the DOJ IG Report on Carter Page (see the list below for links to my prior posts). But to prep for a post showing that DOJ IG did not meet the standard it held the FBI to in its investigation, I want to first lay out what the IG Report shows about George Papadopoulos.

Why Papadopoulos matters in an IG Report on Carter Page

Papadopoulos is discussed in this IG Report for three reasons. First, the investigation into whether anyone on the Trump campaign was coordinating with Russia, called Crossfire Hurricane, was opened after the Australian government passed on a report about what Papadopoulos said to their representative to the UK, Alexander Downer, over drinks in May 2016. The tip raised legitimate questions about whether the Trump campaign was coordinating with Russia and if so via what channels, so FBI opened an investigation to find out. So Papadopoulos is in the IG Report because his big mouth predicated the investigation.

Papadopoulos is also included because after the GOP embraced conspiracy theories that FBI had “spied” on Trump’s campaign by introducing informants into it, the IG reviewed Papadopoulos’ interactions with two Confidential Human Sources (CHS; along with interactions Carter Page and Sam Clovis had with informants), ultimately showing that no CHSes were infiltrated into the campaign, but were instead used as what FBI believed was the most discrete but efficient way to investigate whether there was something behind Papadopoulos’ blather.

Finally, the review into the interactions between informants and Page and Papadopoulos led the IG to conclude that the FBI should have highlighted information from those interactions in Carter Page’s FISA applications. That judgment is undoubtedly true for Page’s meetings with informants, as he denied several of the specific allegations from the Steele dossier that made up a key prong in the probable cause against him.

But it’s a closer call with regards to Papadopoulos, even just based off the information included in the IG Report (and all the more so when matched up with information in other public documents). Two of the seventeen “significant inaccuracies and omissions” that the IG Report faults FBI for pertain to information on Papadopoulos, and a third pertains to Joseph Mifsud’s denials of telling Papadopoulos about the emails:

5. Omitted Papadopoulos’s statements to an FBI CHS in September 2016 denying that anyone associated with the Trump campaign was collaborating with Russia or with outside groups like WikiLeaks in the release of emails;

[snip]

15. Omitted Papadopoulos’s statements to an FBI CHS in late October 2016 (after the first application was filed) denying that the Trump campaign was involved in the circumstances of the DNC email hack;

16. Omitted Joseph Mifsud’s denials to the FBI that he supplied Papadopoulos with the information Papadopoulos shared with the FFG (suggesting that the campaign received an offer or suggestion of assistance from Russia); and

Given that FISA applications never get shared with defendants, this information should be shared, at least with DOJ’s Office of Information that does the applications. But all of these references were deemed to be — for good reason — cover stories. So I think they deserve more attention in any analysis of how to “fix” (or scrap) FISA moving forward, because they demonstrate one problem with warrant affidavits that will never see the light of day, what to consider exculpatory or not.

As background for that (and to rebut Papadopoulos’ claims that this Report backs any of the fevered claims he has made about the investigation into him), I want to lay out what the IG Report reveals about the investigation into Papadopoulos.

July 28 through August 10 2016: FBI receives the tip from Australia then opens the investigation

Days after WikiLeaks released the DNC emails, on July 26, Australia told someone in London (probably CIA, but the report describes the State Department being involved) about what George Papadopoulos told Alexander Downer (and, probably, his aide Erica Thompson, who had an earlier meeting with Papadopoulos as well as the one she attended with Downer) in May 2016.

The Report does not include the full text of the Australian tip, which has led people from the Attorney General on down to diminish the import of it based off a partial quote. In addition, DOJ has — at its own discretion — kept a few words reflecting other details from the Australian tip that the FBI used to predicate the investigation classified.

What the IG Report does include from the Australian report explains that Papadopoulos had,

suggested the Trump team had received some kind of suggestion from Russia that it could assist this process [damaging Hillary] with the anonymous release of information during the campaign that would be damaging to Mrs. Clinton (and President Obama). It was unclear whether he or the Russians were referring to material acquired publicly of [sic] through other means. It was also unclear how Mr. Trump’s team reacted to the offer. We note the Trump team’s reaction could, in the end, have little bearing of what Russia decides to do, with or without Mr. Trump’s cooperation.

A later quote from Bill Priestap, the FBI Manager who opened the investigation, reveals part of what DOJ chose to exclude from Papadopoulos’ quote: before mentioning the detail about Russia to Downer, Papadopoulos had expressed confidence that Trump would win because there was so much dirt on Hillary.

In fact, the information we received indicated that Papadopoulos told the [FFG] he felt confident Mr. Trump would win the election, and Papadopoulos commented that the Clintons had a lot of baggage and that the Trump team had plenty of material to use in its campaign.

So Papadopoulos said, in May 2016, that Trump would win by throwing a ton of dirt at Hillary, and then said that the Russians were going to anonymously release dirt of their own. Two and a half months later, material Russia stole got released via WikiLeaks, hiding the Russian role, seemingly (and, the evidence shows, in fact) confirming that Papadopoulos had had advance knowledge of the dump.

It took two days for this tip to make its way from the UK to FBI HQ, which means Australia would have shared it before but it would have arrived after Trump made his “Russia if you’re listening” comment on July 27 suggesting he’d be happy to get help from Russia.

FBI HQ then spent 3 days deciding what to do about the tip. On July 31, the FBI opened an investigation to try to figure out whether the Trump campaign had gotten advance notice of the email drop and if so via what channel.

The next day, August 1, Peter Strzok and a Supervisory Special Agent went to London to find out more from Australian officials, plural, which suggests Thompson was included in the interview. The interview gave the FBI no clarity about whom Russia may have told about the emails and it did not rule out Papadopoulos being told himself.

According to Strzok and SSA 1, during the interview they learned that Papadopoulos did not say that he had direct contact with the Russians; that while his statement did not include him, it did not exclude him either; and that Papadopoulos stated the Russians told “us.” Strzok and SSA 1 also said they learned that Papadopoulos did not specify any other individual who received the Russian suggestion

That information led the FBI to do some intelligence analysis using database and name searches to draw up possible candidates. As a result of that analysis, the FBI opened investigations into Papadopoulos himself, as well as Mike Flynn, Carter Page, and Paul Manafort, the latter three of of whom had known ties to Russia.

August 10 to November 8: FBI pursues no legal process to collect on Papadopoulos

The Report confirms, obliquely, something I have long noted: the FBI did not do basic things like getting call records on Papadopoulos or anyone else (though the NY Field Office had gotten two basic National Security Letters on Carter Page earlier in the year). The Report notes that FBI did not ask NSD to help it submit criminal legal process on anyone in conjunction with this investigation before the election.

the FBI did not ask CES to assist with criminal legal process at any time before the 2016 U.S. elections

This is an important issue for both the political and policy debate. The FBI actually might have discovered really damning details about both Papadopoulos (who was planning a back channel meeting with Putin when the investigation was opened) and Paul Manafort (who was sharing campaign strategy in a meeting discussing how to carve up Ukraine) had they chosen to investigate more aggressively. By waiting, the FBI gave both men an opportunity to cover these activities up. Even if they had just gotten call detail records — something not considered any more intrusive than using informants — they would have discovered Joseph Mifsud’s ongoing communications with Papadopoulos. They chose not to take those steps, in part, to prevent any word of the investigation from leaking. But as a result, the FBI failed to collect details about suspicious behavior in real time, potentially forgoing the possibility of mitigating follow-on damage from the Russian attack.

And rather than reviewing a report about why the FBI failed to prevent these ongoing activities, we’re instead reading a 400-page report about why, in an attempt to avoid doing the kind of damage it had already done to Hillary’s campaign, it did the bare minimum.

August 20: Stefan Halper asks Page about Papadopoulos

So instead of collecting communications and other records (the FBI didn’t even obtain Page’s financial records until the following spring), the FBI instead used informants. As it happened, Stefan Halper, who was a lifelong Republican and had worked prior presidential campaigns, had met Carter Page and knew Manafort and Flynn. He was a perfectly situated informant. So FBI asked him to collect more information.

In an August 20 meeting with Halper, Carter Page issued some of the first denials that should have been included in the FISA applications. Halper also asked him about the other subjects of the investigation. Page didn’t have much to say about Papadopoulos, aside from giving a telling “no comment” in response to a Halper question about how easily Papadopoulos can be set off emotionally.

Page said that Papadopoulos was the youngest guy on the campaign, that he used to live in London, and that he had not been to the last campaign meeting. Page also said he had “no comment” on whether Papadopoulos was easily triggered emotionally.

September 1: Stefan Halper asks Sam Clovis about Papadopoulos

Next, using an introduction from Page, Halper reached out to Sam Clovis, who had been closely involved with managing both Page and Papadopoulos on the campaign. Clovis had warm things to say about Page (even while admitting he was hard to pin down). Clovis described Papadopoulos, by contrast, as overly ambitious, which made Clovis suspicious of him.

Source 2 also asked about George Papadopoulos, who the high-level Trump campaign official described as “very eager” and “a climber.” The high-level campaign official added that he was “always suspicious of people like that.”

September 15: Two interviews with Stefan Halper

Next, Halper invited Papadopoulos to London to discuss doing a paper on Mediterranean energy issues for him, a ploy designed (the FBI hoped) to recreate the kinds of circumstances that had led Papadopoulos to make the comments he did to Downer four months before. Halper and Papadopoulos (and an undercover FBI Agent using the name Azra Turk) actually had two meetings. At the first, Halper started by eliciting Papadopoulos’ thoughts on other subjects of the investigation, which led Papadopoulos to describe both Page and Flynn as interested in ties with Russia.

During the meeting, Source 2 told Papadopoulos that Carter Page “always says nice things about you.” Papadopoulos told Source 2 that although Carter Page was one of the campaign’s “Russian people,” Page “has never actually met Trump … [and] hasn’t actually advised him on Russia … [but] [h]e might be advising him indirectly through [another campaign official].” Papadopoulos also told Source 2 that General Flynn “does want to cooperate with the Russians and the Russians are willing to … embrace adult issues.”

Then Halper asked Papadopoulos about his own ties to Russia. According to the parts of the transcript excerpted in the IG Report, he admitted he had been invited to a “faith talk” (an invitation I haven’t heard of before), but said it was too sensitive to go, particularly given what “is going with Paul Manafort.” In response to an initial question, Papadopoulos suggested that Julian Assange had predicted an October Surprise but “no one knows” what that means.

As for Papadopoulos’s own connections with Russia, Papadopoulos told Source 2 he thought that “we have to be wary of the Russians” and mentioned that “they actually invited me to their .. .faith talk. I didn’t go though.” Papadopoulos explained to Source 2 that he made the decision not to go because it is “just too sensitive … [as an] advisor on the campaign trail…especially with what is going [on] with Paul Manafort.” Source 2 also asked Papadopoulos about the possibility of the public release of additional information that would be harmful to Hillary Clinton’s campaign. Papadopoulos responded that Julian Assange of Wikileaks had said in public statements to “get ready for October … [but] [w]hatever that means no one knows.”

Papadopoulos’ answer about an October Surprise was not that different than — but almost a month after — a similar response to Halper from Page, though that comment did not get added to his FISA applications until his last renewal. The IG Report does not talk about this similar answer, which is particularly interesting given details about the campaign’s knowledge of Roger Stone’s claimed ties to WikiLeaks.

Then there are questions about whether DOJ IG included all the parts of the transcript that would be relevant to this analysis. In Papadopoulos’ own depiction of these meetings with Halper, he claimed he pushed back by saying, “I really have nothing to do with Russia.” It’s possible that was a self-serving claim, or it’s possible that the transcript included here does not include it. I asked and did not receive an answer about about whether such a phrase appeared in the full transcript or how much of that full transcript they had excerpted. Whether it is or not is actually fairly significant for the DOJ IG case about what should have been included in Page’s FISA applications, but alas, it’s not available. It would also be useful to see whether these topics followed closely or not, but again, this is just a selection from the transcript that doesn’t even offer guidance about what the ellipses are.

Anyway, that’s what happened at a brunch meeting between Halper and Papadopoulos. After it, the FBI deemed the meeting sufficiently successful to try to push further in an evening meeting over drinks.

At that evening meeting, Papadopoulos questioned whether the Russians had really done the hack, and then said a bunch of things about Israel that would lead to FBI digging up significant details of Papadopoulos’ influence peddling with Israel that almost turned into a Foreign Agent charge.

When Source 2 initially asked about Wikileaks, Papadopoulos commented that with respect to Assange “no one knows what he’s going to release” and that he could release information on Trump as a “ploy to basically dismantle … [ or] undercut the … next President of the United States regardless of who it’s going to be.” Papadopoulos also stated that “no one has proven that the Russians actually did the hacking,” then continued to discuss hacking by pointing out that he had “actually had a few .. .Israelis trying to hack” his cell phone, which Papadopoulos said “shocked” him because he had “done some sensitive work for that government,” and he said the Israelis had “allowed [him] quite a high level of access.” Papadopoulos also stated that “no one else” did the work that he did for the Israelis, and that it had led “some folks [to] joke … [that Papadopoulos] should go into the CIA after this if [Trump] ends up losing.”

Then, Halper asked about WikiLeaks for what would be the third and fourth time that day, this time more directly. Papadopoulos gave the answer that the frothy right has claimed, bizarrely, was exculpatory. By the time he gave this answer, had had already admitted receiving a non-public invitation from Russia and offered two different responses about WikiLeaks, along with a claim doubting that Russia had done the hack. That’s particularly notable given that Papadopoulos’ claim that WikiLeaks would have an interest in undercutting whoever might be the next President makes no sense unless Russia were the source.

So having expressed meeting with Russia was “sensitive” in the wake of disclosures about Paul Manafort and given inconsistent answers about WikiLeaks already that day, in response to more direct questions, Papadopoulos angrily stated that optimizing the WikiLeaks releases — which Rick Gates and Stephen Miller had been preparing to do leading up to the DNC release, and which Roger Stone had made even more extensive efforts to do, though there’s no evidence Papadopoulos knew of either effort — would amount to treason. Both times he made this denial, Papadopoulos raised Trump’s “Russia if you’re listening” comment.

Later in the conversation, Source 2 asked Papadopoulos directly whether help “from a third party like Wikileaks for example or some other third party like the Russians, could be incredibly helpful” in securing a campaign victory. Papadopoulos responded:

Well as a campaign, of course, we don’t advocate for this type of activity because at the end of the day it’s, ah, illegal. First and foremost it compromises the US national security and third it sets a very bad precedence [sic] …. So the campaign does not advocate for this, does not support what is happening. The indirect consequences are out of our hands…. [F]or example, our campaign is not. .. engag[ing] or reaching out to wiki leaks or to the whoever it is to tell them please work with us, collaborate because we don’t, no one does that…. Unless there’s something going on that I don’t know which I don’t because I don’t think anybody would risk their, their life, ah, potentially going to prison over doing something like that. Um … because at the end of the day, you know, it’s an illegal, it’s an illegal activity. Espionage is, ah, treason. This is a form of treason …. I mean that’s why, you know, it became a very big issue when Mr. Trump said, “Russia if you’re listening …. ” Do you remember? … And you know we had to retract it because, of course, he didn’t mean for them to actively engage in espionage but the media then took and ran with it.

When Source 2 raised the issue again, Papadopoulos added:

to run a shop like that. .. of course it’s illegal. No one’s looking to … obviously get into trouble like that and, you know, as far as I understand that’s, no one’s collaborating, there’s been no collusion and it’s going to remain that way. But the media, of course, wants to take a statement that Trump made, an off-the-cuff statement, about [how] Russia helped find the 30,000 emails and use that as a tool to advance their [story]. .. that Trump is … a stooge and if he’s elected he’ll permit the Russians to have carte blanche throughout Eastern Europe and the Middle East while the Americans sit back and twiddle their thumbs. And that’s not correct.

There are a lot of reasons why, in context, this denial not only is not credible, but should have raised alarms. All the more so given that, according to the FBI team, Papadopoulos demeanor changed when he made it.

Case Agent 1 added that at these points in the conversation, Papadopoulos “went from a free-flowing conversation with [Source 2] to almost a canned response. You could tell in the demeanor of how [Papadopoulos] changed his tone, and to [the Crossfire Hurricane team] it seemed almost rehearsed.” Case Agent 1 emailed SSA 1 and others to report that Papadopoulos “gave … a canned answer, which he was probably prepped to say when asked.” According to Case Agent 1, it remained a topic of conversation on the Crossfire Hurricane team for days afterward whether Papadopoulos had “been coached by a legal team to deny” any involvement because of the “noticeable change” in “the tenor of the conversation.”

Granted, it would take a fairly extensive discussion to lay out how Papadopoulos’ denial was inconsistent with his earlier comments. The FBI team did not do that and instead left it out, which is one of the things DOJ IG criticized them for.

Early October/a few days before Page FISA filed: FBI learns that Papadopoulos has a sustained relationship with Sergei Millian

Meanwhile, there was one other significant investigative development, one which gets uneven coverage in the IG Report: the FBI came to focus on Sergei Millian.

Millian appears in the IG Report largely because he was an identifiable source in the Steele dossier whom Steele’s Sub-Source disclaimed a direct relationship with. Along the way, however, the Report provides details of an investigation into Millian in his own right. For example, one passage describes him as someone, “previously known to the FBI.” Other passages (including a heavily redacted footnote 302 describing a document circulating in early October) reveal the FBI opened a counterintelligence investigation into Millian in either early October or just days before the Page FISA application was approved on October 21. Not only did the FBI have an investigation into Millian, but they knew that he had been in close contact with Papadopoulos since at least August.

The Crossfire Hurricane team had information available to it by early October 2016 that the two reporting streams could have connectivity because they had learned that Person 1, an important Steele election reporting sub-source, had been engaging in “sustained” contact with Papadopoulos since at least August 2016.

The IG Report’s treatment of Millian is fairly confusing (partly, presumably, due to DOJ decisions). It deems his possible role as a Steele source to discredit the dossier but does not discuss the possibility he had a role in any disinformation in it (even while it does consider Oleg Deripaska’s role in seeding disinformation). It doesn’t reflect on what that means for Papadopoulos’ comments in fall 2016, including any denials of ongoing involvement in Russian matters. Additionally, whereas elsewhere, DOJ declassified the names of people discussed extensively in the Mueller Report, they don’t do that here.

The investigation into Millian would almost certainly be more aggressive than it was with Papadopoulos. So it’s possible DOJ accessed Papadopoulos’ comments to Millian — which were fairly damning, per the Mueller report — at a time when they were otherwise not collecting communications of anyone besides Page.

Third week of October: First interview with Source 3

DOJ’s odd treatment of Millian in the Report is notable for Papadopoulos’ comments to the one other informant used with him during the election.

FBI didn’t use Stefan Halper with Papadopoulos after September 15. They tried, but failed, to use several other informants with him. But with an informant the IG Report calls Source 3, they did succeed in getting meetings with Papadopoulos, just the pre-election ones which the IG Report describes.

Whoever Source 3 is, Papadopoulos appears to have trusted — and bragged to — him or her far more than he did Halper. In their first conversation, which took place in the week during which Page’s first FISA application was being finalized, Papadopoulos provided conflicting information about whether he really had left the Trump campaign in the wake of a very pro-Russian Intefax piece. He also refers to Millian as a friend and indicates a plan to travel to Russia the next summer.

In the first consensually monitored conversation, during the third week of October 2016, Papadopoulos described how he had worked for the presidential campaign of Ben Carson before joining the Trump campaign, and that when he was with the Trump campaign, he “set up a meeting with … [t]he President of Egypt and Trump.” Papadopoulos also told Source 3 that, since leaving the Trump campaign, Papadopoulos had “transitioned into like my own private brand.” Papadopoulos later stated he was “still with … the campaign indirectly” and that he had made “a lot of cool [connections] and I’m going to see what’s going to happen after the election.” He added that he had learned “[i]t’s all about connections now days, man.” Papadopoulos did not say much about Russia during the first conversation with Source 3, other than to mention a “friend Sergey … [who] lives in … Brooklyn,” and invite Source 3 to travel with Papadopoulos to Russia in the summertime.

Late October: Second interview with Source 3

Papadopoulos met — and continued to brag to — Source 3 once more before the election, just after the first Page FISA order. The IG Report focuses more on Papadopoulos unabashed plan to sell access. It focuses less on the fact that, before he issued denials that anyone in the campaign was involved with WikiLeaks, he basically laid out the outline of his interactions with Mifsud and claimed to have been invited to meet Putin. Papadopoulos then went on to admit that he told Halper what he did because he expected him to go tell the CIA unless he issued a full-throated denial.

In the second consensually monitored conversation, at the end of October 2016, Papadopoulos told Source 3 that Papadopoulos had been “on the front page of Russia’s biggest newspaper” for an interview he had given 2 to 3 weeks earlier. Papadopoulos said that he was asked “[w]hat’s Mr. Trump going to do about Russia if he wins, what are your thoughts on ISIS, what are your thoughts on this?” and stated that he did not “understand why the U.S. has such a problem with Russia.” Papadopoulos also said that he thinks Putin “exudes power, confidence.” When Source 3 asked Papadopoulos if he had ever met Putin, Papadopoulos said that he was invited “to go and thank God I didn’t go though.” Papadopoulos said that it was a “weird story” from when he “was working at … this law firm in London” that involved a guy who was “well connected to the Russian government.” Papadopoulos also said that he was introduced to “Putin’s niece” and the Russian Ambassador in London. 472 Papadopoulos did not elaborate on the story, but he added that he needed to figure out

how I’m going monetize it, but I have to be an idiot not to monetize it, get it? Even if [Trump] loses. If anything, I feel like if he loses probably could be better for my personal business because if he wins I’m going to be in some bureaucracy I can’t do jack … , you know?

Papadopoulos added that there are plenty of people who aren’t even smart who are cashing in, and asked Source 3 “Do you know how many Members of Congress I’ve met that know jack … about anything? Except what their advisors tell them? … They can barely put a sentence together …. I’m talking about Members of Congress dude.” In other portions of the conversation with Source 3, Papadopoulos repeated that what he really wanted to figure out was how to “monetize … [his] connections” because Papadopoulos felt like he knew “a lot of Ambassadors … [and] a lot of Presidents.” Papadopoulos said that once the election was over, Papadopoulos was going

to sit down and systematically write who I know, what they want, and how I can leverage that because if you know like government guys and ambassadors you should be making money, that’s all I know because there’s not one person I know who has those connections that isn’t making … money.

He observed that what he had to “sell is access,” and “[t]hat’s what people pay millions of dollars for every year. It’s the cleanest job.”

However, when Source 3 asked Papadopoulos whether Papadopoulos thought “Russia’s playing a big game in this election,” Papadopoulos said he believed “That’s all bull[].” Papadopoulos said “[n]o one knows who’s hacking [the DNC] …. Could be the Chinese, could be the Iranians, it could be some Bernie … supporters.” Papadopoulos added that arguments about the Russians are “all…conspiracy theories.” He said that he knew “for a fact” that no one from the Trump campaign had anything to do with releasing emails from the DNC, because Papadopoulos said he had “been working with them for the last nine months…. And all of this stuff has been happening, what, the last four months?” Papadopoulos added that he had been asked the same question by Source 2. Papadopoulos said he believed Source 2 was going to go

and tell the CIA or something if I’d have told him something else. I assume that’s why he was asking. And I told him, absolutely not …. it’s illegal, you know, to do that.. .. [my emphasis]

There’s more from that October 2016 interview that remains redacted, according to the discussion of the Rule 13 Letter informing the FISC of information that should have been included in the Page applications (as well as several other things).

Again, Papadopoulos’ comments, even just to Halper alone, are internally inconsistent particularly as it pertains to WikiLeaks. Depending on how much the FBI had learned about Papadopoulos’ communications with Millian by this point, the FBI made have had good reason to doubt some of the things he said (his ongoing ties with Millian, for example, would undermine his claim to have nothing to do with Russian, if in fact he made it). He made it clear to Source 3 that he said what he did to Halper because he believed saying anything else would alert law enforcement. And he made these denials to Source 3 while laying out a network of relationships that should have alerted the FBI that he had been in a situation to learn of the emails in advance.

That’s all aside from the comments Papadopoulos made about Page specifically, which should have been in the FISA applications.

The frothy right claims the September 15 Halper interviews included exculpatory information, not just for Page, but also for Papadopoulos, were ridiculous even without knowing that the FBI knew of Papadopoulos’ ties to Millian. That’s all the more true given the details about his demeanor changing and his admission to Source 3 he was worried that Halper would report him to the CIA.

But that’s the problem with FISA. Under a normal warrant situation, it’d be easy to exclude Papadopoulos’ dubious denials in a warrant application targeting Page. But because of the ex parte nature of FISA, those rules don’t apply.

Perhaps the more pertinent point — one not made here — is that Papadopoulos’ denials should have led the investigation to focus on him far earlier than it did.

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

December 23, 2019/41 Comments/in 2016 Presidential Election, FISA, Mueller Probe /by emptywheel

The DOJ IG’s office has made two sets of corrections to their Report on Carter Page, the first on December 11 (two days after its release) and a second on December 20 (eleven days after its release). Three of those corrections fix overstatements of their case against the FBI (but which don’t catch all their overstatements and errors in making that case). One correction explains that more information has been declassified (without explaining an inconsistent approach to Sergei Millian as compared with other people named in the Mueller Report). And one correction — one of the changes made Friday — fixes a legal reference.

Here’s that correction:

On page 57, we added the specific provision of the United States Code where the Foreign Agents Registration Act (FARA) is codified, and revised a footnote in order to reference prior OIG work examining the Department’s enforcement and administration of FARA.

The correction changed this passage…

Crossfire Hurricane was opened by [FBI’s Cyber and Counterintelligence Division] and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), Title 18 U.S.C. § 951, which makes it a crime to act as an agent of a foreign government without making periodic public disclosures of the relationship. 170

170 The FARA statute defines an “agent of a foreign government” as an individual who agrees to operate in the United States subject to the direction or control of a foreign government or official. 18 U.S.C. § 951(d).

To read like this:

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

170 We have previously found differing understandings between FBI agents and federal prosecutors and NSD officials about the intent of FARA as well as what constitutes a “FARA case.” See DOJ OIG, Audit of the National Security Division~ Enforcement and Administration of the Foreign Agents Registration Act, Audit Division 16-24 (September 2016), https://oig.justice.gov/reports/2016/al624.pdf (accessed December 19, 2019)

The error appears harmless on its face, just a minor citation error that conflated FARA with 951 in the original report. But both in this instantiation and in the IG Report as a whole, the error may totally undermine its analysis and, indeed, the analytical framework of this entire IG investigation. That’s because if the people conducting this analysis did not understand the difference between the two statutes — and the error goes well beyond the citation enhancement described in the correction, because it exhibits utter lack of knowledge that there are two foreign agent statutes — then the Report’s analysis on the First Amendment may be problematic (and almost certainly is with respect to Page).

As I’ve written at length and as the cited IG Report from 2016 explains, the boundary between 22 USC 611 (FARA) and 18 USC 951 (Foreign Agent), both laws about what makes someone a “foreign agent,” remains ambiguous. Maria Butina, Anna Chapman, and the Russians who tried to recruit Carter Page were prosecuted under 18 USC 951 (though often that gets charged as a conspiracy because proving it requires less classified evidence), Paul Manafort, Rick Gates, and Sam Patten pled guilty to FARA violations. Mike Flynn’s former partner, Bijan Kian, was charged with conspiring to file a false FARA filing and acting as a Foreign Agent, invoking both statutes in one conspiracy charge; partly because of the way he was charged and partly because Flynn reneged on his statements regarding their activities, Judge Anthony Trenga acquitted him after he was found guilty, which may suggest the boundary between the two will present legal difficulties for prosecuting such cases.

18 USC 951 is sometimes called “espionage light,” though that phrase ignores that DOJ will often charge a known foreign spy under 951 — like the SVR (foreign intelligence) agents who tried to recruit Page — because proving it requires far less classified information. It requires the person be working on behalf of a foreign government, not just a foreign principal, and can but does not necessarily include information collection. FARA, however, only requires a person to be working on behalf of a foreign principal (which might be a political party or a company), and generally pertains to political influence peddling (it includes political activities, lobbying, and PR in its definitions, along with some financial stuff). 18 USC 951 will more often be clandestine, though as Butina’s case shows, it does not have to be, whereas FARA may cover activities that are overt if the person engaging in them does not register properly. A recent Lawfare post describes how DOJ’s superseding indictment of the Internet Research Agency relies on an interesting and potentially troubling new application of FARA.

In Mueller’s description of how the two laws might be applied criminally, he suggests 951 does not require willfulness, but a criminal violation of FARA would.

The Office next assessed the potential liability of Campaign-affiliated individuals under federal statutes regulating actions on behalf of, or work done for, a foreign government.

a. Governing Law

Under 18 U.S.C. § 951, it is generally illegal to act in the United States as an agent of a foreign government without providing notice to the Attorney General. Although the defendant must act on behalf of a foreign government (as opposed to other kinds of foreign entities), the acts need not involve espionage; rather, acts of any type suffice for liability. See United States v. Duran, 596 F.3d 1283, 1293-94 (11th Cir. 2010); United States v. Latchin, 554 F.3d 709, 715 (7th Cir. 2009); United States v. Dumeisi, 424 F.3d 566, 581 (7th Cir. 2005). An “agent of a foreign government” is an ” individual” who “agrees to operate” in the United States “subject to the direction or control of a foreign government or official.” 18 U.S.C. § 951 ( d).

The crime defined by Section 951 is complete upon knowingly acting in the United States as an unregistered foreign-government agent. 18 U.S.C. § 95l(a). The statute does not require willfulness, and knowledge of the notification requirement is not an element of the offense. United States v. Campa, 529 F.3d 980, 998-99 (11th Cir. 2008); Duran, 596 F.3d at 1291-94; Dumeisi, 424 F.3d at 581.

The Foreign Agents Registration Act (FARA) generally makes it illegal to act as an agent of a foreign principal by engaging in certain (largely political) activities in the United States without registering with the Attorney General. 22 U.S.C. §§ 611-621. The triggering agency relationship must be with a foreign principal or “a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal.” 22 U.S.C. § 61 l(c)(l). That includes a foreign government or political party and various foreign individuals and entities. 22 U.S.C. § 611(6). A covered relationship exists if a person “acts as an agent, representative, employee, or servant” or “in any other capacity at the order, request, or under the [foreign principal’s] direction or control.” 22 U.S.C. § 61 l(c)(l). It is sufficient if the person “agrees, consents, assumes or purports to act as, or who is or holds himself out to be, whether or not pursuant to contractual relationship, an agent of a foreign principal.” 22 U.S.C. § 61 l(c)(2).

The triggering activity is that the agent “directly or through any other person” in the United States (1) engages in “political activities for or in the interests of [the] foreign principal,” which includes attempts to influence federal officials or the public; (2) acts as “public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal”; (3) ” solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal”; or ( 4) “represents the interests of such foreign principal” before any federal agency or official. 22 U .S.C. § 611 ( c )(1 ).

It is a crime to engage in a “[w]illful violation of any provision of the Act or any regulation thereunder.” 22 U.S.C. § 618(a)(l). It is also a crime willfully to make false statements or omissions of material facts in FARA registration statements or supplements. 22 U.S.C. § 618(a)(2). Most violations have a maximum penalty of five years of imprisonment and a $10,000 fine. 22 U.S.C. § 618. [my emphasis]

So back to the DOJ IG Report. As the revised footnote notes, at least until 2016, the FBI used the same case number for FARA and 951 cases. That probably makes sense from an investigative standpoint, as it’s often not clear whether someone is working for a foreign company or whether that company is a cut-out hiding a foreign government paymaster (as the government alleged in Flynn’s case). But it makes tracking how these cases get investigated more difficult, and obscures those cases where there’s a clear 951 predicate from the start.

The original text of this passage of the IG Report suggests that at least the person who wrote it — and possibly the entire DOJ IG team investigating this case — were not aware of what I’ve just laid out, that there’s significant overlap between 951 and FARA, but that clear 951 cases and clear FARA cases will both use this case designation. That’s important because one of these statutes involves politics (and so presents serious First Amendment considerations), whereas the other one does not have to (and did not, in Carter Page’s case).

It’s unclear whether this error was repeated in several other places in the Report. The passage describing how the individualized investigations were opened says these were all FARA cases:

After conducting preliminary open source and FBI database inquiries, intelligence analysts on the Crossfire Hurricane team identified three individuals–Carter Page, Paul Manafort, and Michael Flynn–associated with the Trump campaign with either ties to Russia or a history of travel to Russia. On August 10, 2016, the team opened separate counterintelligence FARA cases on Carter Page, Manafort, and Papadopoulos, under code names assigned by the FBI. On August 16, 2016, a counterintelligence FARA case was opened on Flynn under a code name assigned by the FBI. The opening ECs for all four investigations were drafted by either of the two Special Agents assigned to serve as the Case Agents for the investigation (Case Agent 1 or Case Agent 2) and were approved by Strzok, as required by the DIOG.

But if the person writing this did not know that a “foreign agent” case might be FARA, 951, or both, then it would mean this passage may misstate what the investigations were.

And the analysis over whether the investigation was appropriately predicated uses just FARA.

The FBI’s opening EC referenced the Foreign Agents Registration Act (FARA) and stated, “[b]ased on the information provided by [the FBI Legal Attache], this investigation is being opened to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia.”

In other words, it seems that this entire report is based on the assumption that the FBI was conducting an investigation into whether these four men were engaged in influence peddling that should have been registered and not also considering whether they were acting as clandestine agents for Russia.

That certainly appears to be the case for some of these men. For example, the first known warrant investigating Paul Manafort — which was focused on his Ukrainian work — listed only FARA, not 951. The derogatory language on George Papadopoulos speaks in terms of explicit, shameless influence peddling (which I’ll review in a follow-up post).

That said, the predication of the Flynn investigation would have included his past ties to the GRU, the agency that had hacked the DNC, and non-political relationships with Russian companies RT, Kaspersky, and Volga-Dnepr Airlines. He notified the Defense Intelligence Agency of all those things, though the government claims some of his briefings on this stuff includes inculpatory information. And he excused his payments from other Russian sources because his speakers bureau, and not Russia itself, made the payments, which might be considered a cut-out.

When Mueller got around to describing his prosecutorial decisions about these four men, he described both statutes (and explained that the office found that Manafort and Gates had violated FARA with Ukraine, Flynn had violated what it calls FARA with Turkey but elsewhere they’ve said included 951, and there was evidence Papadopoulos was an Agent of Israel under either 951 or FARA but not sufficient to charge.

Finally, the Office investigated whether one of the above campaign advisors-George Papadopoulos-acted as an agent of, or at the direction and control of, the government of Israel. While the investigation revealed significant ties between Papadopoulos and Israel (and search warrants were obtained in part on that basis), the Office ultimately determined that the evidence was not sufficient to obtain and sustain a conviction under FARA or Section 951

So it’s unclear whether the investigations into Papadopoulos, Flynn, and Manafort really were just FARA cases when they began, or were 951.

But the language Mueller used to describe his declination for Page (which includes a redacted sentence about his activities) makes it sound like his FISA applications alleged him to be — as would have to be the case for a FISA order — an Agent of Russia, implicating 951.

On four occasions, the Foreign Intelligence Surveillance Court (FISC) issued warrants based on a finding of probable cause to believe that Page was an agent of a foreign power. 50 U.S.C. §§ 1801 (b ), 1805(a)(2)(A). The FISC’s probable-cause finding was based on a different (and lower) standard than the one governing the Office’s decision whether to bring charges against Page, which is whether admissible evidence would likely be sufficient to prove beyond a reasonable doubt that Page acted as an agent of the Russian Federation during the period at issue. Cf United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) ( explaining that probable cause requires only “a fair probability,” and not “certainty, or proof beyond a reasonable doubt, or proof by a preponderance of the evidence”).

Indeed, the IG Report provides abundant reason to believe this is the case. That’s because the FBI Field Office opened an investigation into Page in April 2016 based on a March 2016 interview pertaining exclusively to what are called “continued contacts” with SVR intelligence officers who tried to recruit him starting at least in 2009, interactions that they had been tracking for seven years.

An FBI counterintelligence agent in NYFO (NYFO CI Agent) with extensive experience in Russian matters told the OIG that Carter Page had been on NYFO’s radar since 2009, when he had contact with a known Russian intelligence officer (Intelligence Officer 1). According to the EC documenting NYFO’s June 2009 interview with Page, Page told NYFO agents that he knew and kept in regular contact with Intelligence Officer 1 and provided him with a copy of a non-public annual report from an American company. The EC stated that Page “immediately advised [the agents] that due to his work and overseas experiences, he has been questioned by and provides information to representatives of [another U.S. government agency] on an ongoing basis.” The EC also noted that agents did not ask Page any questions about his dealings with the other U.S. government agency during the interviews. 180

NYFO CI agents believed that Carter Page was “passed” from Intelligence Officer 1 to a successor Russian intelligence officer (Intelligence Officer 2) in 2013 and that Page would continue to be introduced to other Russian intelligence officers in the future. 181 In June 2013, NYFO CI agents interviewed Carter Page about these contacts. Page acknowledged meeting Intelligence Officer 2 following an introduction earlier in 2013. When agents intimated to Carter Page during the interview that Intelligence Officer 2 may be a Russian intelligence officer, specifically, an “SVR” officer, Page told them he believed in “openness” and because he did not have access to classified information, his acquaintance with Intelligence Officer 2 was a “positive” for him. In August 2013, NYFO CI agents again interviewed Page regarding his contacts with Intelligence Officer 2. Page acknowledged meeting with Intelligence Officer 2 since his June 2013 FBI interview.

In January 2015, three Russian intelligence officers, including Intelligence Officer 2, were charged in a sealed complaint, and subsequently indicted, in the Southern District of New York (SDNY) for conspiring to act in the United States as unregistered agents of the Russian Federation. 182 The indictment referenced Intelligence Officer 2’s attempts to recruit “Male-1” as an asset for gathering intelligence on behalf of Russia.

On March 2, 2016, the NYFO CI Agent and SDNY Assistant United States Attorneys interviewed Carter Page in preparation for the trial of one of the indicted Russian intelligence officers. During the interview, Page stated that he knew he was the person referred to as Male-1 in the indictment and further said that he had identified himself as Male-1 to a Russian Minister and various Russian officials at a United Nations event in “the spirit of openness.” The NYFO CI Agent told us she returned to her office after the interview and discussed with her supervisor opening a counterintelligence case on Page based on his statement to Russian officials that he believed he was Male-1 in the indictment and his continued contact with Russian intelligence officers.

The FBI’s NYFO CI squad supervisor (NYFO CI Supervisor) told us she believed she should have opened a counterintelligence case on Carter Page prior to March 2, 2016 based on his continued contacts with Russian intelligence officers; however, she said the squad was preparing for a big trial, and they did not focus on Page until he was interviewed again on March 2. She told us that after the March 2 interview, she called CD’s Counterespionage Section at FBI Headquarters to determine whether Page had any security clearances and to ask for guidance as to what type of investigation to open on Page. 183 On April 1, 2016, the NYFO CI Supervisor received an email from the Counterespionage Section advising her to open a [~9-character redaction] investigation on Page. The NYFO CI Supervisor said that [3 lines redacted] In addition, according to FBI records, the relevant CD section at FBI Headquarters, in consultation with OGC, determined at that time that the Page investigation opened by NYFO was not a SIM, but also noted, “should his status change, the appropriate case modification would be made.” The NYFO CI Supervisor told us that based on what was documented in the file and what was known at that time, the NYFO Carter Page investigation was not a SIM.

Although Carter Page was announced as a foreign policy advisor for the Trump campaign prior to NYFO receiving this guidance from FBI Headquarters, the NYFO CI Supervisor and CI Agent both told the OIG that this announcement did not influence their decision to open a case on Page and that their concerns about Page, particularly his disclosure to the Russians about his role in the indictment, predated the announcement. However, the NYFO CI Supervisor said that the announcement required noting his new position in the case file should his new position require he obtain a security clearance.

On April 6, 2016, NYFO opened a counterintelligence [8-9 character redaction] investigation on Carter Page under a code name the FBI assigned to him (NYFO investigation) based on his contacts with Russian intelligence officers and his statement to Russian officials that he was “Male-1” in the SONY indictment.

181 CI agents refer to this as “slot succession,” whereby a departing intelligence officer “passes” his or her contacts to an incoming intelligence officer.

182 Intelligence Officer 3 pied guilty in March 2016. The remaining two indicted Russian intelligence officers were no longer in the United States.

183 CI agents in NYFO told us that the databases containing security clearance information were located at FBI Headquarters. When a subject possesses a security clearance, the FBI opens an espionage investigation; if the subject does not possess a security clearance, the FBI typically opens a counterintelligence investigation. [my emphasis]

I’ve discussed Page’s designation as a “contact approval” until 2013 by CIA here, though to reiterate, his last contact with the CIA was in 2011, and while they knew about his contacts with Alexander Bulatov, a Russian intelligence officer working under cover as a consular official in NY, they apparently did not know or ask him about his contacts with Victor Podobnyy. This previous relationship with the CIA absolutely should have been disclosed, but does not cover activity in 2015, when he would have discussed his inclusion in the Podobnyy/Evgeny Buryakov indictment with a person described as a Russian minister.

The NYFO believed they should have opened an investigation into Page even before the interview, on March 2, 2016, when he admitted telling Russians he was Male-1 in the indictment and (per the Mueller Report), said he “didn’t do anything,” perhaps disavowing any help to the FBI investigation. The IG Report notes that Page provided Intelligence Officer 1 (who must be Bulatov) a copy of a non-public annual report from an American company.” The Podobnyy indictment notes that Page provided Podobnyy — someone he knew to be a foreign intelligence officer — documents about the energy business. The NYFO CI Agent’s description of Page’s, “continued contact with Russian intelligence officers” seems to suggest the person described as a Russian Minister is known or believed to be an intelligence officer (otherwise she would not have described this as ongoing contact).

Notably, NYFO’s focus was not on whether Page was engaged in political activities, whether he was a Sensitive Investigative Matter (SIM) or not. Indeed, at the time they opened the investigation in April 2016, they didn’t know he had a tie to the Trump campaign.

Rather, their focus was on whether Page, whose deployments in the Navy included at least one intelligence operation, had a security clearance, because that dictated whether the investigation into him would be an Espionage one or a Counterintelligence one. The actual type of investigation remains redacted (the word cannot be either “counterintelligence,” because of length, or “espionage” because the article preceding it forecloses the word starting with a vowel), but it is described as a counterintelligence investigation. Given the nature of the non-public information Page shared, that redacted word may pertain to economic information, perhaps to either 18 USC 1831 or 1832. Even going forward, NYFO was primarily interested in whether he would obtain a clearance that would increase the risk that the information he was happily sharing with known Russian intelligence officers would damage the US.

The counterintelligence case into Page was opened — and the FISA order targeting him was significantly predicated on — his voluntary sharing of non-public economic information with known Russian intelligence officers over a period of years. That’s almost certainly not a FARA investigation because at that point NYFO had no knowledge that Page was even engaging in politics.

And that’s important because of the IG Report’s analysis of whether and how obtaining a FISA order on Page implicated his First Amendment activities.

In its analysis of how FISA treats First Amendment activities, the Report includes the following discussion, once again citing FARA, relying on House and Senate reports on the original passage of FISA.

FISA provides that a U.S. person may not be found to be a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment. 129 Congress added this language to reinforce that lawful political activities may not serve as the only basis for a probable cause finding, recognizing that “there may often be a narrow line between covert action and lawful activities undertaken by Americans in the exercise of the [F]irst [A]mendment rights,” particularly between legitimate political activity and “other clandestine intelligence activities. “130 The Report by SSCI accompanying the passage of FISA states that there must be “willful” deception about the origin or intent of political activity to support a finding that it constitutes “other clandestine intelligence activities”:

If…foreign intelligence services hide behind the cover of some person or organization in order to influence American political events and deceive Americans into believing that the opinions or influence are of domestic origin and initiative and such deception is willfully maintained in violation of the Foreign Agents Registration Act, then electronic surveillance might be justified under [“other clandestine intelligence activities”] if all the other criteria of [FISA] were met. 131

129 See 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A).

130 H. Rep. 95-1283 at 41, 79-80; FISA guidance at 7-8; see also Rosen, 447 F. Supp. 2d at 547-48 (probable cause finding may be based partly on First Amendment protected activity).

131 See S. Rep. 95-701 at 24-25. The Foreign Agents Registration Act, 22 U.S.C. § 611 et seq., is a disclosure statute that requires persons acting as agents of foreign principals such as a foreign government or foreign political party in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.

The first citation to the House report says only that an American must be working with an intelligence service and must involve a violation of Federal criminal law, which may include registration statutes. The second citation says only that political activities should never be the sole basis of a finding of probable cause that a US person was an agent of a foreign power. Neither would apply to Carter Page, since the evidence against him also included sharing non-public information that had nothing to do with politics, and he shared that information with known intelligence officers.

The citation to the Senate report is a miscitation. The quoted language appears on page 29. The cited passage spanning pages 24 and 25, however, emphasizes that someone can only be targeted for activities that involve First Amendment activities if they involve an intelligence agency.

It is the intent of this requirement that even if there is some substantial contact between domestic groups or individual citizens and a foreign power, as defined in this bill, no electronic surveillance wider this subparagraph may be authorized unless the American is acting under the direction of an intelligence service of a foreign power.

With Page, the FBI had his admitted and sustained willingness to share non-public information with known intelligence officers, the Steele allegations suggesting he might be involved in a conspiracy tied to the hack and leak of Hillary’s emails, and his stated plans to set up a think tank that would serve as the kind of cover organization that would hide Russia’s role in pushing Page’s pro-Russian views.

The question of whether Page met probable cause for being a foreign agent doesn’t, in my mind, pivot on any analysis of First Amendment activities, because he had a clear, knowing tie with Russian intelligence officers with whom he was sharing non-public information. The question pivots on whether he could be said to doing so clandestinely, since he happily admitted the fact, if asked, to both the CIA and FBI. Both the Steele allegations (until such point, after his first application, that they had been significantly undermined) and Page’s enthusiasm to set up a Russian-funded think tank probably get beyond that bar.

And remember, for better and worse, this is probable cause, not proof beyond a reasonable doubt.

The DOJ IG Report analysis all seems premised on assessing FARA violations, not violations of 18 USC 951. That may be the appropriate lens through which to assess the actions of Papadopoulos, Flynn, and Manafort.

But the evidence presented in the report seems to suggest that’s a mistaken lens through which to assess the FISA application targeting Carter Page, the only Trump flunky who was so targeted. And given the evidence that at least some of the people who wrote the report did not understand how the two statutes overlap when they conducted the analysis, it raises real questions about whether all that analysis rests on mistaken understandings of the law.

Update: I’ve corrected the introduction of this to note that DOJ or FBI declassifies information, not DOJ IG.

Crossfire Hurricane Glossary

December 21, 2019/12 Comments/in 2016 Election, Department of Justice, Intelligence, Law, Mueller Probe, Surveillance, Timeline, Trump Administration, We Are All Fucked /by bmaz

Even before it went live yesterday, I was looking through Marcy’s incredibly awesome timeline on Crossfire Hurricane. It is a stunningly important and good thing, not only for those here, but those everywhere. I read things day and night, and have seen many timelines on this subject, but none that approach that which Marcy has produced. That said, if even I have to do double takes on what some of the names and acronyms are, I thought a guide was in order.

So, I thought an enduring glossary would help not even now, but going forward. What follows will be what appears appropriate now, and this post may be supplemented lated as necessary. I hope it helps. Maybe at some point I’ll come back an make it alphabetical, but for now I am just going from front to back in order of appearance.

Some are patently obvious and need no explanation, e.g. “CIA” for instance. As to the rest though, away we go:

ASAC: Assistant Agent In Charge, typically of an FBI Field Office.

Zainab Ahmad: Is a seriously kick ass former member of DOJ. Ahmad was a prosecutor with the DOJ who long specialized in investigating and prosecuting terrorism. She served as an AUSA in the Eastern District of New York until 2017, successfully prosecuting several high-profile terrorism cases. In 2017, she was reassigned to the Special Counsel for the United States Department of Justice team. After Mueller closed up shop, Zainab landed as a white collar and cyber security specialist at the NY office of Gibson Dunn.

Evgeny Burykov: A convicted Russian spy. He was arrested on January 26, 2015, charged with, and pleading guilty to, spying on the United States for the Russian Foreign Intelligence Service (SVR). Buryakov was a New York-based Deputy Representative of Vnesheconombank, Russia’s state-owned national development bank.

CHS-3: In addition to Steele (CHS-1) and Halper (CHS-2) there was another FBI informant who spoken on a number of occasions with George Papadopoulos. The person’s identity is unknown. Papadopoulos told him a version of the Joseph Mifsud in fall 2016.

Anne Conway: Conway is a GHW Bush nominated judge to the Middle District of Florida, and who serves on the FISC, since being do designated by John Roberts in 2016. Judge Conway approved a 2017 FISA Court warrant for Carter Page, a former adviser to the 2016 Trump Campaign.

Raymond Dearie: Is a well respected Senior United States District Court Judge from EDNY originally nominated by Reagan, and served on FISX between July 2012 and July 2019, after appointment by Chief Justice John Roberts.

Oleg Deripaska (Oligarch 1): Paul Manafort’s one-time paymaster, and also the client of a lawyer employing Christopher Steele in 2016. In that role, Steele repeatedly offered to broker a meeting at which Deripaska could provide derogatory information on Manafort. FBI belatedly considered whether Deripaska was a source of disinformation for the dossier.

Alexander Downer: Former Australian High Commissioner (ambassador) to the UK (2014-18), former leader of the Australian Liberal Party (1994-95), and former Australian Minister for Foreign Affairs (1996-2007). Definitely not a coffee boy, but met with one over a few drinks in London.

For bmaz, I note that he is a fan of V8 motor racing and has a CMAS racing license. (h/t EH)

Stu Evans: Stuart Evans, deputy assistant attorney general of DOJ’s National Security Division. He’s the person who insisted on adding a footnote alerting the FISC of Steele’s potential bias.

FIFA: The international governing body of soccer. A body Chris Steele gave work and information on to not just US authorities but worldwide ones too.

Michael Gaeta (Handling Agent 1): An FBI agent, previously an attache in Rome and one time handler of Christopher Steele. A specialist in Eastern European organized crime including in the Republic of Georgia, Russia, and Ukraine.

Taushina Gauhar: Is a (former) Deputy Assistant Attorney General (DAAG) in the Department of Justice National Security Division (NSD) and FISA lawyer specialist.

JD Gordan: Gordan is an American communications and foreign policy advisor, who served as a Pentagon spokesman during the Bush Administration and later a National Security Advisor to Donald Trump. He is also a crackpot gadabout on forums such as One America News Network, Fox News, Sky News, The Daily Caller, The Hill, and The Washington Times. He’s the guy who ensured that the Republican platform did not incorporate lethal aid to Ukraine.

Stefan Halper (Source 2): Ooof, this could go on even longer, but per Wiki, Halper is an American foreign policy spy and Senior Fellow at the University of Cambridge where he is a Life Fellow at Magdalene College. He served as a White House official in the Nixon, Ford, and Reagan administrations, and was reportedly in charge of the spying operation by the 1980 Ronald Reagan presidential campaign that became known as “Debategate”. Through his decades of work for the CIA, Halper has had extensive ties to the Bush family. Through his work with Sir Richard Dearlove he also has ties to the British Secret Intelligence Service MI6. For purposes here, Halper acted as an FBI informant for its investigation into Russian interference in the 2016 United States elections.

Kathleen Kavalec: Former Deputy Assistant Secretary of State who met with Chris Steele in October 2016.

Mary McCord: McCord was the Acting Assistant Attorney General for National Security at the U.S. Department of Justice from 2016 to 2017 and Principal Deputy Assistant Attorney General for the National Security Division from 2014 to 2016. She now teaches at Georgetown and contributes at Lawfare.

Sergei Millian (Person 1): A Belarus born businessman knee deep in everything Russia and a putative source for Chris Steele. He was also the subject of a counterintelligence investigation during 2016-17. Much still not necessarily clear about Millian.

NYFO: New York Field Office of the FBI.

OGC: Office Of General Counsel at the Department of Justice.

OI: The Office of Intelligence at DOJ. They’re in charge of writing FISA applications.

Bruce and Nellie Ohr: Bruce Ohr is a United States Department of Justice official. A former Associate Deputy Attorney General and former director of the Organized Crime Drug Enforcement Task Force (OCDETF). He is an expert on transnational organized crime and has spent most of his career overseeing gang and racketeering-related prosecutions, including Russian organized crime. Nellie is Bruce’s wife, and a longtime expert on all things Russian. She worked at one point for Fusion GPS as a contractor between October 2015 and September 2016.

Victor Podobnyy: An Russian SVR (foreign intelligence) officer worked under the cover as a banker who was recruiting Carter Page in 2013.

SSA: Supervisory Special Agent.

Scott Schools: Scott Schools was the “highest-ranking career civil servant at the United States Department of Justice”, serving as Associate Deputy Attorney General. For those who have been around long enough, he was, for a while, the “new” David Margolis. Schools, a putatively decent chap, is gone now, having been replaces by a Jeff Sessions designated mope named Bradley Weinsheimer.

Glenn Simpson: Former journalist for the Wall Street Journal and co-founder of Fusion GPS.

Paul Singer: An American billionaire hedge fund manager, activist, investor, vulture capitalist, and philanthropist. A hard line Republican promoter and shill, but also a longtime supporter of LGBTQ rights.

Bruce Swartz: Deputy Assistant Attorney General for International Affairs. Key to the story because of a purported effort by Kurt Volker to get Swartz to officially ask Ukraine to investigate the Bidens. He would have been in the loop in any normal requests between the US and Ukraine. Still a lot of questions open as to Swartz.

UCE: An FBI employee working undercover. A woman working under the pseudonym Azra Turk accompanied Stefan Halper on his interviews with George Papadopoulos.

Sally Yates: Former US Attorney for Northern District of Georgia, Deputy Attorney General, and Acting AG.

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

December 20, 2019/4 Comments/in 2016 Presidential Election, 2020 Presidential Election, Impeachment, Mueller Probe /by emptywheel

I’m still working on my multi-post deep dive into the substance of the IG Report on the Carter Page FISA.

But for now, it’s worth pointing out a detail from it that debunks a key conspiracy that Rudy Giuliani is chasing as he tries to hasten his client’s impeachment.

The Report describes that the investigation into Paul Manafort that resulted in conviction in EDVA and a guilty plea in DC started in January 2016, before he joined the Trump campaign.

In addition to Ohr’s interactions with the FBI and Steele in connection with the Crossfire Hurricane investigation, Ohr also participated in discussions about a separate money laundering investigation of Paul Manafort that was then being led by prosecutors from the Money Laundering and Asset Recovery Section (MLARS), which is located in the Criminal Division at the Department’s headquarters. That criminal investigation was opened by the FBI’s Criminal Investigation Division in January 2016, approximately 2 months before Manafort joined the Trump campaign as an advisor, and concerned allegations that Manafort had engaged in money laundering and tax evasion while acting as a political consultant to members of the Ukrainian government and Ukrainian politicians.

As expressed by propagandists like John Solomon, the investigation into Manafort’s corruption was actually “resurrected” later that year, in response to the publication of the Black Ledger (which he falsely said was a suspected fake).

The second document, known as the “black cash ledger,” remarkably has escaped the same scrutiny, even though its emergence in Ukraine in the summer of 2016 forced Paul Manafort to resign as Trump’s campaign chairman and eventually face U.S. indictment.

In search warrant affidavits, the FBI portrayed the ledger as one reason it resurrected a criminal case against Manafort that was dropped in 2014 and needed search warrants in 2017 for bank records to prove he worked for the Russian-backed Party of Regions in Ukraine.

Based on this false claim, Solomon and Rudy have claimed that Serhiy Leshchenko’s publication of the ledger (but not the entries pertaining to Manafort) was part of a Ukrainian plot to defeat Trump by falsely (they suggest) portraying Manafort as corrupt.

But the Black Ledger is not what “resurrected” the investigation into Manafort. It had started long before that, even before Manafort knew (two months before it was public) that he was included in the Black Ledger. Indeed, Manafort was under investigation when Trump hired him.

Note, too, that contrary to Trump’s wails, there would be no reason to give him a defensive briefing about Manafort, as this was not a counterintelligence investigation. Indeed, the Manafort investigation remained focused on his corruption well into 2017. If you hire a spy, you might hope that the FBI would warn you. But if you hire an epically corrupt influence peddler, you own the consequences of that.

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

December 17, 2019/32 Comments/in 2016 Presidential Election, FISA /by emptywheel

Judge Rosemary Collyer just released a four page order responding to the DOJ IG Report showing problems with Carter Page’s FISA applications.

Before I explain the letter further, let me just explain for those who haven’t followed my FISA work. Collyer is the presiding judge of the court. Traditionally, it falls to the presiding judge to scold DOJ when things go haywire, and so it was to be expected that Collyer would write this. Collyer is nowhere near the most aggressive presiding judge in the court’s history (that honor might go to Reggie Walton, though Royce Lamberth was presiding when the Woods Procedures that weren’t followed here were introduced after he bitched about systematic problems). As an example, she wrote what I consider to be among the worst programmatic FISA opinions not written by a Dick Cheney flunkie, and she was reluctant to implement the new amicus mandated by Congress in the USA Freedom Act.

Predictably, while this is a sharp opinion, it’s not that onerous. She starts by spending a page explaining why candor is so important for the FISC, language that is probably for the benefit of those unfamiliar with the court. She cites three prior opinions complaining about lack of candor, just one of which I consider among the greatest hits.

She then reviews the problems laid out in the IG Report she considers most important, citing:

The failure to explain Carter Page’s past relationship with the CIA
Exaggerations about the degree to which Christopher Steele’s reporting had been corroborated
Contradictions of Steele’s claims made by his sub-source
Page’s denials he had worked closely with Paul Manafort
Page’s denials he knew the two Russians described in the Steele dossier
Details suggesting claims attributed to Sergei Millian in the dossier were unreliable

In addition, Collyer dedicates a paragraph to describing Kevin Clinesmith’s alteration of an email to hide Page’s prior CIA relationship, alluding to a prior order in which she seems to have ordered a review of everything he had touched.

In addition, while the fourth electronic surveillance application for Mr. Page was being prepared, an attorney in the FBI’s Office of General Counsel (OGC) engaged in conduct that apparently was intended to mislead the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency. See id. at 252-56. The information about the OGC attorney’s conduct in the OIG report is consistent with classified submissions made to the FISC by the government on October 25, 2019, and November 27, 2019. Because the conduct ofthe OGC attorney gave rise to serious concerns about the accuracy and completeness of the information provided to the FISC in any matter in which the OGC attorney was involved, the Court ordered the government on December 5, 2019, to, among other things, provide certain information addressing those concerns.

In addition to ordering the declassification of that December 5 order, Collyer also ordered the FBI to explain, by January 10, what they’re going to do to fix the more general problem.

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

So she’s not calling for the FISC itself to do anything different. FBI will likely provide a plan implementing the FISC-based recommendations made by Michael Horowitz, as well as additional updates to the Woods Procedures.

This is, in the grand scheme of things, an order deferring to the government to fix the problem, not an order designed to impose new requirements (of the kind Lamberth himself ordered years ago) from the court until FBI proves it has cleaned up its act.

Which leaves it up to Congress to impose any more substantive fixes.

Posts

Overview and ancillary posts

Report shortcomings

Factual revelations in the report

What should FBI have done when faced with a credible allegation Trump’s associates had advance knowledge of a hostile attack on our elections?

In retrospect, was the decision not to use other legal process the best one?

Why did FBI forgo a Section 215 order on Page?

Does the public agree with the FBI about the intrusiveness of informants?

Is the consideration of least intrusive means adequately reviewed?

Is the FBI Director declaration regarding other investigative techniques adequately reviewed?

Does FBI conduct certain investigative techniques using FISA to keep them secret?

Why do we need FISA?

Is relationship between lawyers and FBI agents on FISA too attenuated?

Is there any legitimate reason to withhold review from defendants?

What are the boundaries between FISA’s agent of a foreign power, 18 USC 951’s Agent of a Foreign Power, and FARA?

The predication of the investigation

The errors impacting Carter Page

Notice about Page’s past CIA contacts

Inaccurate descriptions of Steele

Failure to include exculpatory information

Whether Carter Page should have been targeted

Whether Page would have been able to suppress these warrants

OTHER POSTS ON THE DOJ IG REPORT

Overview and ancillary posts

Report shortcomings

Factual revelations in the report

Errors identified on publication

Information excluded from the Bruce Ohr discussion

Possible information excluded from the George Papadopoulos transcript

What makes it into a 302 or not

The FBI is always wrong and DOJ is always right

OTHER POSTS ON THE DOJ IG REPORT

Overview and ancillary posts

Report shortcomings

Factual revelations in the report

Why Papadopoulos matters in an IG Report on Carter Page

July 28 through August 10 2016: FBI receives the tip from Australia then opens the investigation

August 10 to November 8: FBI pursues no legal process to collect on Papadopoulos

August 20: Stefan Halper asks Page about Papadopoulos

September 1: Stefan Halper asks Sam Clovis about Papadopoulos

September 15: Two interviews with Stefan Halper

Early October/a few days before Page FISA filed: FBI learns that Papadopoulos has a sustained relationship with Sergei Millian

Third week of October: First interview with Source 3

Late October: Second interview with Source 3

OTHER POSTS ON THE DOJ IG REPORT

Overview and ancillary posts

Report shortcomings

Factual revelations in the report

OTHER POSTS ON THE DOJ IG REPORT

Overview and ancillary posts

Report shortcomings

Factual revelations in the report

OTHER POSTS ON THE DOJ IG REPORT

Overview and ancillary posts

Report shortcomings

Factual revelations in the report

Interesting links

Pages