IG’s Report Reveals 4 Spurious Allegations as Basis for FBI Spying on Trump Campaign Aide

COMMENTARY Crime and Justice

IG’s Report Reveals 4 Spurious Allegations as Basis for FBI Spying on Trump Campaign Aide

Dec 12, 2019 11 min read

Commentary By

Hans A. von Spakovsky @HvonSpakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

John Malcolm @malcolm_john

Vice President, Institute for Constitutional Government

Charles “Cully” Stimson @cullystimson

Senior Legal Fellow and Deputy Director, Meese Center

Justice Department Inspector General Michael Horowitz testifies before the Senate Judiciary Committee for a hearing on Wednesday Dec. 11, 2019. Caroline Brehman / Contributor / Getty Images

Key Takeaways

Horowitz’s report exposes 17 flagrant errors, omissions, and misstatements in the four FISA applications related to Page, any one of which is inexcusable. 

The fact that the Foreign Intelligence Surveillance Act was apparently misused to target a presidential campaign is shocking.

It seems reasonable to conclude that this unprecedented FBI intelligence operation against a presidential campaign should never have been opened in the first place.

A shocking report by the Justice Department’s inspector general lays bare the FBI’s “serious performance failures” in conducting a counterintelligence operation in 2016 against the Trump campaign.

Inspector General Michael Horowitz’s 434-page report details numerous mistakes, errors, and omissions by FBI personnel in four applications for special warrants to spy on Trump campaign aide Carter Page under the Foreign Intelligence Surveillance Act. 

Horowitz released his long-awaited report Monday on the FBI’s four applications for the FISA warrants to conduct electronic eavesdropping on Page as part of the bureau’s investigation into potential collusion between the Russian government and members of the Trump campaign.   

Horowitz’s report says he did not find any “documentary or testimonial evidence” that political bias influenced the FBI’s decision to seek authority to surveil Page in Operation Crossfire Hurricane, the code name the FBI gave to the investigation.

The Foreign Intelligence Surveillance Court considers applications by the U.S. government for approval of electronic surveillance, physical search, and other forms of investigative actions for foreign intelligence purposes. The court’s proceedings are secret, and the federal judges that sit on the court are appointed by the chief justice of the Supreme Court.

Because the Foreign Intelligence Surveillance Act is such a powerful tool and given the potential for abuse, FBI policy mandates that case agents ensure that all factual statements in an application for a FISA warrant be “scrupulously accurate”—an understandably high bar.  

Yet Horowitz’s report exposes 17 flagrant errors, omissions, and misstatements in the four FISA applications related to Page, any one of which is inexcusable. 

In fact, those mistakes, errors, and omissions were so serious that we have serious doubts as to whether any of the four FISA court judges would have approved any of the warrant applications in the first place, had they been provided the full and complete information in the hands of the FBI.   

Flashback to Russia’s Meddling in 2016 Campaign

Before getting into the devastating findings of the IG report, it is important to step back and think about what was happening in 2016.  

According to special counsel Robert Mueller’s report, the Russian government “interfered in the 2016 presidential election in sweeping and systemic fashion.”  By mid-2016, the Russian operations began to surface. 

That June, the Democratic National Committee announced that Russian hackers had compromised the party’s computer network. Releases of hacked materials via WikiLeaks began that same month. WikiLeaks released additional materials in July, October, and November.  

In July 2016, an official with a foreign government, reported to be Alexander Downer, the Australian high commissioner to the United Kingdom at the time, contacted the FBI about a conversation he had at a bar two months beforehand with Trump campaign adviser George Papadopoulos. 

Downer claimed that Papadopoulos “suggested” that the Trump campaign had received “some kind of suggestions” from the Russian government that it could assist the Trump campaign by releasing damaging information against rival Hillary Clinton. Pretty vague stuff.  

So in 2016, our government and our FBI knew that Russia was trying to interfere with our presidential election, and that, quite possibly, the Russians were in contact with a member of the Trump campaign. Rather than providing a defensive briefing to high-level members of the Trump campaign about this innuendo of an innuendo, the FBI opted to initiate a full-blown investigation of members of the campaign whom it thought might be implicated, including Page, who has said he never met Donald Trump.  

Embarking down the path of investigating the campaign of a major party’s candidate for president is, of course, a momentous and potentially perilous undertaking. If there were ever a time for the FBI director, and senior members of his inner circle, to take personal ownership of a case and abide by and exceed the “scrupulously accurate” standard for FISA applications, that was the time.  

But that didn’t happen. In fact, the opposite happened, as Horowitz makes clear in his report. This was a monumental failure by then-FBI Director James Comey and his subordinates.

The 4 Disputed ‘Facts’ in the Steele ‘Dossier’ Targeting Trump

At the center of the four FISA applications targeting Page was opposition research work done by Christopher Steele—a former British intelligence officer who had previously provided information to the FBI—at the behest of Fusion GPS, a research and intelligence company that was acting on behalf of the Clinton campaign.  

The so-called Steele dossier was actually a series of reports provided directly to the FBI by Steele beginning in September 2016. After the FBI officially terminated Steele as an approved “confidential source,” the reports were provided through Bruce Ohr, a high-ranking Justice Department official, whose wife worked for Fusion GPS. Ohr continued to meet with Steele and pass along information from him to the FBI, in violation of departmental policy.

The information that Steele provided clearly implicated the Trump campaign in illegal activity with the Russians to interfere in the 2016 election. But was it accurate? According to the inspector general, the Steele dossier played a “central and essential role in the FBI’s and [Justice] Department’s decision to seek the FISA order.”  And it’s easy to see how.  

Although the FBI considered filing an application after receiving the information from Downer in July, FBI attorneys declined to do so because they did not believe that the requisite “probable cause” existed to justify issuing a FISA warrant. According to FBI officials, the information they received from Steele in September “pushed [the FISA proposal] over the line,” and they applied for the warrant. 

Critical to the application was the explosive allegation that Page was coordinating with the Russian government on 2016 presidential election activities, and was, therefore, acting as a foreign agent. For this, the FBI “relied entirely” on four “facts” that Steele had reported: 

1. The Russians had been compiling information about Hillary Clinton for years and had been feeding that information to the Trump campaign for an extended period of time. 

2. During a trip to Moscow in July 2016, Page met with the head of a Russian energy conglomerate (Igor Sechin) and a highly placed Russian official (Igor Divyekin) to discuss sharing derogatory information about Clinton with the Trump campaign in exchange for future cooperation and the lifting of Ukraine-related U.S. sanctions against Russia.

3. Page was an intermediary between Russia and Paul Manafort, chairman of the Trump campaign from June to August 2016, as part of a “well-developed conspiracy” of cooperation that led to Russia disclosing hacked Democratic National Committee emails via WikiLeaks and to the campaign’s decision to “sideline” Russian intervention in Ukraine as a campaign issue. 

4. Russia’s release of the DNC emails was designed to help the Trump campaign and was “an objective conceived and promoted by Page.”  

As it is, the FBI had in its possession, or would shortly obtain, information undercutting all four of these allegations, which the FBI never brought to the attention of the FISA court in its original application against Page or in any of the three applications to renew surveillance.

IG Identifies 7 ‘Significant Inaccuracies and Omissions’ by FBI

Horowitz’s report says he found seven “significant inaccuracies and omissions”—glaring errors, really—in the first FISA application to surveil Page.

First, the FBI failed to inform the FISA court that it had been notified by another government agency (presumably within the intelligence community) that Page had provided information to that agency (and to the FBI) about some of his contacts with Russian intelligence agents and had been approved to have “operational contact” with those Russian agents. 

In other words, the very contacts that the FBI cited in the FISA application to establish that Page was really a clandestine foreign agent were known to and had been approved by another U.S. intelligence agency.  The IG report also states that an FBI lawyer—reported to be Kevin Clinesmith—subsequently altered a document he received from the other agency to indicate, falsely, that Page was not a source for that other agency.

Second, to bolster Steele’s credibility, the application stated that his prior reporting had been “corroborated and used in criminal proceedings.” But in fact, most of that information had not been corroborated, and none of it had  been used in a criminal proceeding.

Third, while Steele informed the FBI that the critical information he was reporting about Page came from a “sub-source,” the FISA application left out the fact that Steele described this source as a “boaster” and an “egoist” who “may engage in some embellishment.”

Fourth, to bolster Steele’s credibility, the FISA application stated that some of the information that Steele reported had appeared in an article in Yahoo News, and that Steele was not the source for that story. This implied that somebody else had the same information Steele had and could serve as independent corroboration. However, it turns out that Steele was the source for that story, and that the FBI either knew it or easily could have learned it.

Fifth, the FISA application included the information that the FBI had received from Downer about his conversation with Papadopoulos. But it did not include the fact that during a subsequent secretly recorded conversation in September with an FBI confidential source, Papadopoulos explicitly denied that anyone associated with the Trump campaign was collaborating with the Russians or any other outside group, including WikiLeaks, with respect to the disclosed DNC emails.

Sixth, although the FBI included the four allegations above, it did not include the fact that during a later secretly recorded conversation in August with an FBI confidential source, Page said that he never had met or spoken to Manafort and that Manafort had not responded to any of his emails.

And seventh, in another secretly recorded conversation with an FBI source in October, Page denied meeting the Russians Sechin and Divyekin, and denied even knowing who Divyekin was. 

10 More Errors in FBI Applications to Spy on Carter Page 

The IG report also concludes that after the FISA court approved the first warrant application, the FBI learned more information—some of it from secretly recorded conversations by its own confidential informants—that cast serious doubt on the facts contained in that application. 

Yet the FBI didn’t bring this information to the attention of the FISA court, and the errors were repeated in the three renewal applications to continue surveilling Page.

The 10 additional errors—17 in all—included these facts:

—The FBI eventually interviewed Steele’s sub-source, who undercut many factual statements that Steele had attributed to him.

—The FBI spoke to some individuals who had professional dealings with Steele who said he demonstrated “poor judgment” and “pursued people with political risk but no intelligence value.”

—The individual (Joseph Mifsud) who allegedly told Papadopoulos that the Russians had dirt on Hillary Clinton denied having said that or having suggested that the Trump campaign received an offer of assistance from the Russians.

—Bruce Ohr, the high-ranking Justice Department official, had specifically informed the FBI that Steele’s information was being provided to the Clinton campaign, and that Steele was “desperate and passionate about [Trump] not being the U.S. President.”

Horowitz concluded that all of these “factual misstatements and omissions [when] taken together resulted in FISA applications that made it appear that the information supporting probable cause was stronger than was actually the case.”  

‘Basic Errors’ Raise Questions About FBI Chain of Command

Thus, it seems reasonable to conclude that this unprecedented FBI intelligence operation against a presidential campaign should never have been opened in the first place.

The IG report paints a damning picture of everyone involved in this case, from the FBI’s Crossfire Hurricane team to Comey, and everyone in between. The report notes: 

That so many basic and fundamental errors were made by three separate, hand-picked teams on one of the most sensitive FBI investigations that was briefed to the highest levels within the FBI … raised significant questions regarding the FBI chain of command’s management and supervision of the FISA process.

Later, the report soberly concludes: “ … this was a failure of not only the operational team, but also of the managers and supervisors, including senior officials, in the chain of command.”

Those trying to minimize the shocking findings in this report have focused on the IG’s statement that he could not “find documentary or testimonial evidence of intentional misconduct,” or that “political bias or improper motivation” influenced the decision to open the investigation. But the IG also said he “did not receive satisfactory explanations for the errors or problems” that he identified in the FBI’s work.  

Moreover, this may not be the last word on the subject. Horowitz candidly admits in the report that “[b]ecause the activities of other agencies were not within the scope of this review, we did not seek to obtain records from them that the FBI never received or reviewed, except for a limited amount of State Department records relating to Steele.”  

The IG says his office “did not seek to assess the actions taken by or information available to U.S. government agencies outside the Department of Justice, as those agencies are outside our jurisdiction.”

Attorney General Finds ‘Clear Abuse of the FISA Process’

Connecticut U.S. Attorney John Durham, who has been tasked by Attorney General William Barr to conduct a criminal investigation into the origins of the FBI’s Russia probe, is not similarly constrained.  

Following release of the IG report Monday, Durham stated:

[O]ur investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S. Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.

Barr also weighed in on the IG’s findings. In a press release Monday, Barr said the IG report “makes clear the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.” In fact, from the very beginning, Barr added, “the evidence produced by the investigation was consistently exculpatory.”

In the strongest condemnation of the FBI in recent memory by an attorney general, Barr said that in their “rush to obtain and maintain FISA surveillance” of individuals involved in the Trump campaign, “FBI officials misled the FISA court, omitted critical exculpatory facts from their filings, and suppressed or ignored information negating the reliability of their principal source.”  

What happened, Barr said, “reflects a clear abuse of the FISA process.”

As the attorney general said, “FISA is an essential tool for the protection of the safety of the American people.” It is a tool we need for national security purposes to protect us from foreign espionage. 

The fact that the Foreign Intelligence Surveillance Act was apparently misused to target a presidential campaign is shocking, and Barr promises that he will take “whatever steps are necessary to rectify the abuses that occurred and to ensure the integrity of the FISA process going forward.”

At the very least, Horowitz has uncovered a massive failure of leadership at all levels of the FBI with respect to one of the most important investigations in the agency’s history. Whether there is more to this story will depend, in part, on what Durham uncovers.

This piece originally appeared in The Daily Signal