Larry C. Johnson: Benchmarks to Look For in the Horowitz Report on FISA
There are some very clear markers that Senators Graham and Grassley laid down for Inspector General Horowitz in his investigation of the FISA process to spy on Carter Page. Since Graham will chair the hearing where IG Horowitz will present his report, I think it is pretty safe to assume that Graham will demand that Horowitz answer the issues he and Grassley raised in their letter of February 28, 2018.
Here is what IG Horowitz committed in writing to do in a letter dated March 28, 2018:
I write in response to your letter to me dated February 28, 2018, requesting that the Office of the Inspector General (OIG) review several matters, including issues surrounding the Federal Bureau of Investigation’s (FBI) application and renewal of authority to conduct surveillance of a certain U.S. person under the Foreign Intelligence Surveillance Act (FISA). . . .
. . . the OIG is initiating a review that will examine the Department’s and FBI’s compliance with legal requirements, and with applicable DOJ and FBI policies and procedures, in applications filed with the FISC relating to this U.S. person. As part of this examination, the OIG also will review information that was known to the Department and the FBI at the time the applications were filed from or about an alleged FBI confidential source. Additionally, the OIG will review the Department’s and FBI’s relationship and communications with the alleged source as they relate to the FISA applications. If circumstances warrant, the OIG will consider including other issues that may arise during the course of the review.
To fully appreciate the import of Horowitz’s promises to Graham, we should revisit the two Graham/Grassley missives that elicited this response. Here are the key issues raised by Graham and Grassley in their February 2nd memo to Deputy Attorney General Rod Rosenstein:
- Either Mr. Steele lied to the FBI or the British court, or that the classified documents reviewed by the Committee contain materially false statements.
- There is substantial evidence suggesting that Mr. Steele materially misled the FBI about a key aspect of his dossier efforts, one which bears on his credibility.
- Public reports, court filings, and information obtained by the Committee during witness interviews in the course of its ongoing investigation indicate that Mr. Steele provided dossier information the end of to numerous media organizations prior to October 2016. . . . In Steele’s sworn court filings in litigation in London, he admitted that he “gave off the record briefings to a small number of journalists about the pre-election memoranda [i.e., the dossier] in late summer/autumn 2016.”
- In his interview with the Committee, Glenn Simpson of Fusion GPS confirmed this account by Mr. Steele and his company as filed in the British court.
- Mr. Steele admitted that he received and included in it unsolicited-and unverified-allegations.21 That filing implies that he similarly received unsolicited intelligence on these matters prior to the election as well, stating that Mr. Steele “continued to receive unsolicited intelligence on the matters covered by the pre-election memoranda after the US Presidential election.”
- It is troubling enough that the Clinton Campaign funded Mr. Steele’s work, but that these Clinton associates were contemporaneously feeding Mr. Steele allegations raises additional concerns about his credibility.
- Accordingly, we are referring Christopher Steele to the Department of Justice for investigation of potential violation(s) of 18 U.S.8. § 1001.
In short, if you’re looking for the first person to be indicted for the whole feckless coup attempt is likely to be Christopher Steele.
Senators Graham and Grassley followed up on February 28, 2018 with the following letter to Inspector General Horowitz. They detail documents that were unclassified during the proceedings and request that additional classified documents be brought into the sunlight. Then they get down to business and ask for answers to the following questions:
- Who in the Department of Justice or the FBI knew that Christopher Steele’s work ultimately was funded by the Democratic National Committee (DNC) and the Clinton Campaign? When did each individual learn that information?
- Why didn’t the Foreign Intelligence Surveillance Act (FISA) warrant for Carter Page, or any of its subsequent renewals, more specifically disclose the source of funding for Steele’s claims?
- What connections are there between Mr. Steele and the Russian government or Russian intelligence community? Has Mr. Steele ever been paid directly or indirectly by the Russian government, Russian intelligence community, or other Russian sources?
- Was any consideration given to providing more information about the funding source than actually appears in the warrant and in its renewals? If not, why not?
- What were Mr. Steele’s motivations in distributing the dossier and the information in the dossier after President Trump won the election? Were these efforts coordinated in any way ·with employees of the FBI or DOJ?
- Pursuant to the procedures in Rule 9(a) of the Foreign Intelligence Surveillance Court’s Rules of Procedure, did the FBI or Justice Department provide the Foreign Intelligence Surveillance Court (FISC) with a proposed FISA application targeting Mr. Page while he was still affiliated with the Trump campaign? Did the FISC notify the DOJ that the warrant application was insufficient as written and required additional information? If so, why? Was the draft warrant returned with any specific feedback? If so, what was the feedback? Was the dossier information included in any draft warrant applications that might have been provided to the court? If not, when was the dossier information first presented to the court, either in draft or final form?
- Were Page’s departure from his role on the campaign’s National Security Working Group and the timing of the application connected in any way?
- Did the FISA order allow the FBI to obtain emails Page sent prior to the order, during the time he was affiliated with the Trump campaign? If so, were any Obama political appointees able to read internal Trump campaign emails before the election? During the transition period? If so, who, when, and for what purpose?
- What department standards, rules, regulations, or policies, if any, govern the use of privately or politically funded intelligence gathering as a predicate for a FISA application? Are those standards, rules, regulations, or policies adequate to ensure the ultimate political and financial motivations behind the work are adequately shared and disclosed? Were those standards, rules, regulations, or policies followed in connection with the use of the Steele dossier information in the FISA application for Carter Page or in any other context where the dossier information was relied upon?
- Do the so-called “Woods Procedures” adequately address how to evaluate potential credibility concerns when using privately or politically funded intelligence in FISA warrant applications??
- Do the Woods Procedures adequately ensure that unverified and uncorroborated information is not used to obtain FISA warrants targeting American citizens?
- Did the FBI properly follow the Woods Procedures in obtaining the Page FISA warrant or any of its renewals, including those procedures designed to prevent reliance on unverified or uncorroborated information?
- How many people at the FBI and the Department of Justice reviewed and approved the Page FISA warrant and renewal applications? Did anyone ever raise any concerns with its accuracy or sufficiency?
- Did anyone express any concerns about the propriety of presenting unverified, uncorroborated claims from the Steele dossier as the basis for a FISA warrant on an American citizen?
- Which specific dossier claims presented in the FISA application, if any, had the FBI independently verified at the time they were first presented to the court? Which claims, if any, had been verified by the time each of the renewal applications was filed?
- Who leaked classified information about the Page FISA warrant to the Washington Post while the warrant was active? Why?
- Chairman Grassley wrote to former Director Comey nearly a year ago requesting him to resolve apparent material discrepancies between information he provided in a closed briefing and information contained in classified documents. Specifically, what Mr. Comey disclosed in a private briefing to the Chairman and Ranking Member Feinstein about the timeline of the FBI’s interactions with Mr. Steele appeared inconsistent with information contained in FISA applications the Chairman and Ranking Member later reviewed. No explanation for the inconsistencies has ever been provided. It is unclear whether this was a deliberate attempt to mislead the Oversight Committee about whether the FBI’s communications with Mr. Steele about the Trump allegations began before or after the FBI opened the investigation.
What is the reason for the difference between what Mr. Comey told the Chairman and Ranking Member in March 2017, and what appears in the FISA application? Did Director Comey intentionally mislead the Committee? Why did the FBI never respond to Chairman Grassley’s questions about the inconsistencies? Did the Chairman’s letter first alert the FBI to the inconsistences? Did the FBI seek to correct them in anyway? Did any one block or delay a response to the Chairman on this issue? If so who, and why? Has Mr. Comey provided any other information to congressional committees, Members, or staff, in public testimony or in private briefings, that is inconsistent with the classified documents produced by the FBI in response to congressional inquiries related to the 2016 election?
- Was Peter Strzok aware of Steele’s claims when he opened the so-called Trump/Russia counterintelligence investigation? Did Mr. Steele’s claims play any role in the decision to open this investigation, despite the stated basis of foreign intelligence regarding George Papadopoulos? Was there any discussion at the FBI about whether to cite to Steele’s information in opening the investigation?
- To what extent did Mr. Steele’s information form any part of the basis for the FBI to expand its investigation from Mr. Papadopoulos to Mr. Page, Lt. Gen. Michael Flynn, and Mr. Manafort?
- Have Mr. Steele’s sources or sub-sources who are described in the dossier, or in any “intelligence reports” compiled by Mr. Steele or his company related to the 2016 election, received any payments directly or indirectly from Mr. Steele, Orbis International, any of Mr. Steele’s other sources, or any Russian source?
- Was anyone in the Justice Department, including senior leadership, aware that Mr. Ohr continued to pass information from Steele and Fusion GPS to the FBI even after Steele was suspended, and terminated, as a source? Who? Were those people aware that Mr. Ohr’s ·wife worked for Fusion? If so, how and when did they become aware?
- Was anyone in the senior leadership ofthe FBI aware that Mr. Ohr continued to pass information from Steele and Fusion GPS to the FBI after Steele was terminatedasasource? Who? Were those people aware that Mr. Ohr’s wife worked for Fusion? If so, how and when did they become aware?
- Did Mr. Ohr ever seek ethics advice from DOJ about his participation in this investigation in light of his wife’s employment with Fusion? In light of his becoming a fact witness in a case over which his office (ODAG) likely had supervisory authority? From whom did he seek advice? If so, was he properly advised and to what extent did he follow it?
- Was it proper for Mr. Ohr to continue to pass information from Steele and Fusion to the FBI after it had suspended, and later terminated, Steele as a source? Why was that fact not disclosed to the FISC? Should it have been? Why was Mr. Ohr’s wife’s work on behalf of Fusion not disclosed to the FISC?
- Why did the FBI and the Justice Department fail to disclose Steele’s personal bias to the FISC? Specifically, Mr. Ohr informed the FBI that Steele himself was “desperate” to prevent Trump from being elected president. Why was this information withheld from the FISC? Should it have been disclosed in the renewal applications to correct any previous assessments or characterizations about Steele’s motivations, as distinct from his client’s (Fusion) and funders’ (DNC/Clinton campaign)?
- Who at the Department of Justice or the FBl was aware that Fusion was the subject of a Foreign Agents Registration Act (FARA) complaint alleging that it failed to register as a foreign agent for its work on behalf the Katsyv family to undermine Magnitsky Act sanctions against Russia?11
- Was anyone involved in the decision to use Steele’s dossier information in the FISA application aware that Steele’s client, Fusion GPS, was accused of being an unregistered foreign agent for Russian interests at the time? Should that information have been shared with those working in the FISA application and disclosed to the FISC at the time? If so, then why wasn’t it?
- Did the FBI provide a defensive briefing to alert then-candidate Trump or any Trump campaign officials to the FBI’s counterintelligence concerns about Carter Page, George Papadopoulos, or Paul Manafort? If not, to what extent was such a briefing considered and rejected as a potential way to thwart Russian attempts to interfere with the 2016 election? If it was rejected as an option, why was it rejected and did that decision comply with any standards, rules, or regulations that govern the use of defensive briefings as a counterintelligence tool? Are the existing standards and guidelines for providing defensive briefings adequate to ensure that senior government officials or major party candidates are adequately warned if individuals surrounding them may be targets of foreign intelligence operations? If not, how should those standard and guidelines be improved?
- In congressional testimony, Mr. Corney claimed that the FBI briefed then President-Elect Trump about the Steele dossier because the FBI had received word that the media was about to report on the dossier.12 However, subsequent media reporting made clear that the media generally had found the dossier’s unverified allegations unreportable, and CNN only broke the story on the dossier because Mr. Corney briefed the President-Elect about it. Thus, there is a question as to whether the FBI included the dossier in the briefing, and possibly leaked that it had done so, in order to provide the media a pretext to report on the dossier.
This question arises against the backdrop of an apparent broader pattern of FBI leaks about high-profile investigative matters. Text messages recently produced to the Committee by the Department for example show high-level FBI officials apparently communicating with reporters. Those messages also show that the FBI at least considered using the briefing for the purpose of carrying out a counterintelligence assessment of the attendees.
Did anyone from the FBI or the Department of Justice leak to the media the fact that officials briefed the President-Elect about the contents of the dossier? Did anyone from the FBI or the Department of Justice inform Mr. Steele or anyone associated with Fusion GPS that they briefed the President-Elect about the contents of the dossier? Did the FBI use the briefing to develop a counterintelligence assessment of its attendees?
- Who leaked to the press the presumably classified contents of the publicly reported call between the Russian ambassador and Michael Flynn? Has anyone been held accountable, and if not, why not?
- On January 24, 2017, before Lt. Gen. Flynn resigned as National Security Advisor, he was interviewed by FBI agents about phone calls he had with former Russian Ambassador Sergei Kislyak. On December 1, 2017, Lt. Gen. Flynn pled guilty to lying to them. Recent news reports, however, state that former FBI
Director Corney previously told congressional investigators that those agents neither believed that Lt. Gen. Flynn had lied, nor that “any inaccuracies in his answers were intentional.”
Was the interview conducted by the FBI agents on January 24, 2017 part of a criminal investigation or a counterintelligence investigation? Did the FBI agents who interviewed Lt. Gen. Flynn believe that he lied to them or intentionally misled them? Did the FBI agents document their interview with Lt. Gen. Flynn in one or more FD-302s? What were the FBI agents’ conclusions about Lt. Gen.
Flynn’s truthfulness, as reflected in the FD-302s? Were the FD-302s ever edited? Ifso, by whom? At who’s direction? How many drafts were there? Are there material differences between the final draft and the initial draft(s) or the agent’s testimony about the interview?
What information did the FBI present to the DOJ regarding this interview, or any other investigative steps involving Lt. Gen. Flynn, and when? What, if anything, did the DOJ do with this information?
This letter to Horowitz provides the framework for an investigation, a criminal investigation. And the Inspector General agreed to take on all the questions except for two areas:
We do not intend for the review to address leak allegations or questions regarding possible defensive briefings by the FBI.
Additionally, given the prosecution of Lt. Gen. Flynn is a pending criminal matter and it appears to be unrelated to the FISA issues, we do not intend for the review to address questions related to the prosecution.
These two issues will fall under the purview of Prosecutor John Durham. Horowitz’s refusal to take them on does not mean they are dead.
The big takeaway from the Graham/Grassley letter is Jim Comey’s jeopardy. He lied. The bureaucratic euphemism is “gave conflicting accounts.” Look again at Question 17:
It is unclear whether this was a deliberate attempt to mislead the Oversight Committee about whether the FBI’s communications with Mr. Steele about the Trump allegations began before or after the FBI opened the investigation.
What is the reason for the difference between what Mr. Corney told the Chairman and Ranking Member in March 2017, and what appears in the FISA application? Did Director Corney intentionally mislead the Committee?
Why did the FBI never respond to Chairman Grassley’s questions about the inconsistencies? Did the Chairman’s letter first alert the FBI to the inconsistences? Did the FBI seek to correct them in anyway? Did any one block or delay a response to the Chairman on this issue? If so who, and why? Has Mr. Corney provided any other information to congressional committees, Members, or staff, in public testimony or in private briefings, that is inconsistent with the classified documents produced by the FBI in response to congressional inquiries related to the 2016 election?
Michael Horowitz knows that he must answer these questions and that Senator Graham will not let this issue go.
The other major focus of Horowitz will drill down on the actions and interactions of the FBI with Bruce Ohr, who was continuing to pass on “intelligence” from Christopher Steele.
The facts presented by Senators Graham and Grassley are damning. I do not see how Michael Horowitz can white wash them. And I do not believe that Senator Graham will allow obfuscation to rule the upcoming hearing.