By Jeff Carlson
Justice Department Inspector General (IG) Michael Horowitz released his report on FISA abuse on Dec. 9, providing a condemnation of activities undertaken by the FBI.
The focus of the IG Report was abuse of the FISA process and the findings of the IG show numerous problems with the actions by FBI agents in obtaining the FISA warrant used to spy on Trump 2016 presidential campaign adviser Carter Page.
All told, the IG identified “at least 17 significant errors or omissions in the Carter Page FISA applications, and many additional errors in the Woods Procedures.”
Although many media organizations are trying to focus on the IG’s finding that the FBI was within its rights in opening the initial July 31, 2016, counterintelligence investigation, it should be noted that this was not the focus of the IG’s investigation. This matter was addressed by the IG on the very first page of his report:
“Our role in this review was not to second-guess discretionary judgments by Department personnel about whether to open an investigation.”
However, Horowitz did note that he had material concerns about the FBI’s legal ability to open an investigation into the campaign of a presidential candidate: “We were concerned to find that neither the AG [attorney general] Guidelines nor the DIOG [FBI’s Domestic Investigations Operations Guide] contain a provision requiring Department consultation before opening an investigation such as the one here involving the alleged conduct of individuals associated with a major party presidential campaign.”
The IG report highlighted several different areas of misconduct and identified a number of errors and findings that will be detailed in the sections below.
7 Significant Errors in the Original Carter Page FISA Application
The inspector general noted that the FBI omitted information from the FISA application that detailed work that Page had previously done for another U.S. government agency. This likely relates to the case of convicted Russian spy Evgeny Buyrakov in which Page had provided evidence against Buryakov to the U.S. government’s case:
The IG report noted “omitted information the FBI had obtained from another U.S. government agency detailing its prior relationship with Page, including that Page had been approved as an ‘operational contact’ for the other agency from 2008 to 2013.”
The report added that “Page had provided information to the other agency concerning his prior contacts with certain Russian intelligence officers, one of which overlapped with facts asserted in the FISA application.”
The report stated that the omission of this information was particularly troubling given that the attorney for the Office of Intelligence (OI) had specifically asked the case agent in late September 2016 whether he had been a source for another government agent but was told that Page’s relationship was “dated” and “outside the scope,” stemming from a time when Page lived in Moscow during 2004-2007.
The case agent omitted information from the OI attorney of Page’s work for another governmental agency during the 2008-2013 time frame or that Page “had been approved as an operational contact by the other agency during a five-year period that overlapped with allegations in the FISA application.”
The FBI mischaracterized former British intelligence officer Christopher Steele’s prior work for the Department of Justice (DOJ) in the FISA application. According to the IG report, this “included a source characterization statement asserting Steele’s prior reporting had been ‘corroborated and used in criminal proceedings,’ which overstated the significance of Steele’s past reporting and was not approved by Steele’s handling agent, as required by Woods procedures.”
The FBI did not inform the FISA Court of certain material concerns regarding a key source that Steele used for his dossier:
The report noted “omitted information relevant to the reliability of Person 1, a key Steele sub-source (who was attributed with providing the information in Report 95 and some of the information in Reports 80 and 102 relied upon in the application).”
Steele had himself told investigating members of the FBI’s Crossfire Hurricane team that Person 1 was a “boaster” and an “egoist” and “may engage in some embellishment.” There is also a second concern in relation to this source but it is fully redacted in the IG’s report.
The FBI used a Sept. 23, 2016, article by Yahoo News reporter Michael Isikoff as corroboration of Steele’s reporting. The FBI failed to inform the FISA Court that Steele was actually the source for Isikoff’s article.
According to the report, “the FBI had assessed that Steele did not directly provide to the press information in the September 23 Yahoo News article based on the premise that Steele had told the FBI that he only shared his election-related research with the FBI and Fusion GPS.”
The IG noted that “this premise was incorrect and contradicted by documentation in the Woods File.” The IG also pointed out that Steele had provided his information to the State Department in the summer of 2016.
The FBI failed to provide the FISA Court with a statement by Trump campaign adviser George Papadopoulos to a confidential human source (CHS) in September 2016—presumably FBI informant Stefan Halper—in which Papadopoulos denied that anyone from the Trump campaign was collaborating with Russia.
The report states the FBI “omitted Papadopoulos’s consensually monitored 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.”
The FBI also omitted a statement from Page denying he ever met former Trump Campaign manager Paul Manafort. This denial was important as Steele claimed that Page was acting as an intermediary to Russia on behalf of Manafort:
“Omitted Page’s consensually monitored statements to an FBI CHS in August 2016 that Page had ‘literally never met’ or ‘said one word to’ Paul Manafort and that Manafort had not responded to any of Page’s emails,” the report states.
As the IG report noted, “those statements were in tension with claims in Report 95 [of the Steele dossier] that Page was participating in a conspiracy with Russia by acting as an intermediary for Manafort on behalf of the Trump campaign.”
The FBI “cherry-picked” statements made by Page to their CHS that served to support obtaining a FISA on Page while at the same time excluding statements from Page that were not supportive of such an action.
The IG found that the FBI “Included Page’s consensually monitored statements to an FBI CHS in October 2016 that the FBI believed supported its theory that Page was an agent of Russia but omitted other statements Page made that were inconsistent with its theory.”
The IG noted that “none of these inaccuracies and omissions were brought to the attention of OI before the last FISA application was filed in June 2017.”
“Consequently, these failures were repeated in all three renewal applications.”
10 Significant Errors in the 3 Carter Page FISA Renewals
All of Steele’s sourcing for his dossier came from second- and third-hand sources. The FBI presented Steele’s Primary sub-source as being credible to the FISA Court but omitted statements and information that called the source’s credibility into question.
The IG report found that the FBI “omitted the fact that Steele’s Primary Sub-source, who the FBI found credible, had made statements in January 2017 raising significant questions about the reliability of allegations included in the FISA applications.”
As noted previously, the FBI failed to inform the FISA Court of Page’s “prior relationship with another US government agency, despite being reminded by the other agency in June 2017, prior to the filing of the final renewal application, about Page’s past status with that agency.”
The FBI presented Steele as a former intelligence official whose work was held in high standing by not only the FBI but also other government departments. But the FBI failed to provide the FISA Court with available information that was derogatory or unflattering regarding Steele.
Specifically, the FBI omitted information from persons who previously had professional contacts with Steele or had direct knowledge of his work-related performance. Some of the criticisms leveled were that Steele demonstrates “lack of self-awareness,” “poor judgement,” “pursued people with political risk but no intelligence value,” and claimed that Steele “didn’t always exercise great judgment, and it ‘was not clear what he would have done to validate’ his reporting.”
The FBI also hid from the FISA court that Steele’s information was being sent to other politically motivated individuals and the media while playing down Steele’s personal biases against then-candidate Trump:
The FBI “omitted information from Department attorney Bruce Ohr about Steele and his election reporting, including (1) Steele’s reporting was going to [rival presidential candidate Hillary] Clinton’s presidential campaign and others, (2) Simpson was paying Steele to discuss his reporting with the media, and (3) Steele was “desperate that Donald Trump not get elected and was passionate about him not being the U.S. President,” the report states.
The FBI failed to update the FISA Court with new information regarding the veracity of Steele’s work as new information came into the FBI’s possession.
The FBI failed “to update the description of Steele after information became known to the Crossfire Hurricane team, from Ohr and others, that provided greater clarity on the political origins and connections of Steele’s reporting including that Simpson was hired by someone associated with the Democratic Party and/or the DNC.”
Even after the FBI had conclusive knowledge that Steele had been the source for Isikoff’s article in Yahoo! News, they failed to provide the FISA Court with this information during any of the FISA renewals.
Specifically, the IG noted that the FBI “failed to correct the assertion in the first FISA application that the FBI did not believe that Steele directly provided information to the reporter who wrote the September 23 Yahoo News article.”
The FBI overstated Steele’s credentials and past contributions to prior investigations. Steele’s work was presented to the FISA Court as having been used in criminal proceedings when they had, in fact, not been utilized.
The FBI “omitted the finding from a FBI source validation report that Steele was suitable for continued operation but that his past contributions to the FBI’s criminal program had been ‘minimally corroborated,’” the report stated.
Instead the FBI falsely “continued to assert in the source characterization statement that Steele’s prior reporting had been ‘corroborated and used in criminal proceedings.’”
The FBI continued to omit statements from Papadopoulos made to the CHS, whereby Papadopoulos continued to deny “that the Trump campaign was involved in the circumstances of the DNC email hack.”
The FBI omitted denials from Maltese professor Joseph Mifsud that he “supplied Papadopoulos with the information Papadopoulos shared with the FFG [Friendly Foreign Government] (suggesting that the campaign received an offer or suggestion of assistance from Russia).”
The FBI “omitted information indicating that Page played no role in the Republican platform change on Russia’s annexation of Ukraine as alleged in the Report 95, which was inconsistent with a factual assertion relied upon to support probable cause in all four FISA applications.”
The IG report noted that “among the most serious of the 10 additional errors we found in the renewal applications was the FBI’s failure to advise OI or the [FISA] court of the inconsistencies … between Steele and his Primary Sub-source on the reporting relied upon in the FISA applications.”
“[T]he Primary Sub-source’s account of these communications, if true, was not consistent with and, in fact, contradicted the allegations of a “well-developed conspiracy” in Reports 95 and 102 attributed to Person 1. The FBI did not share this information with OI,” the report states.
The IG Report also noted, “The fact that the Primary Sub-source’s account contradicted key assertions attributed to his/her own sub-sources in Steele’s Reports 94, 95, and 102 should have generated significant discussions between the Crossfire Hurricane team and OI prior to submitting the next FISA.”
This issue was material enough that Stuart Evans, the National Security Division’s then-deputy assistant attorney general, with oversight responsibility over the OI, claimed that “had OI been made aware of the information, such discussions might have included the possibility of foregoing the renewal request altogether, at least until the FBI reconciled the differences between Steele’s account and the Primary Sub-source’s account.”
According to the Inspector General “none of the inaccuracies and omissions that we identified in the renewal applications were brought to the attention of OI before the applications were filed.”
This lack of information directly impacted the department officials who were providing final signoff on the FISA applications:
“Similar to the first application, the Department officials who reviewed one or more of the renewal applications, including Yates, Boente, and Rosenstein, did not have accurate and complete information at the time they approved them,” the report states.
Conclusions Concerning All 4 FISA Applications
The Inspector General’s report stated that it concluded that the failures described in the report “represent serious performance failures by the supervisory and non-supervisory agents with responsibility over the FISA applications.”
According to the IG, these failures prevented the Office of Intelligence “from fully performing its gatekeeper function and deprived the decision makers the opportunity to make fully informed decisions.”
The IG stated that all of the “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.”
In total, the IG’s report identified “at least 17 significant errors or omissions in the Carter Page FISA applications, and many additional errors in the Woods Procedures. These errors and omissions resulted from case agents providing wrong or incomplete information to OI and failing to flag important issues for discussion.”
The IG stated that “While we did not find documentary or testimonial evidence of intentional misconduct on the part of the case agents who assisted OI in preparing the applications, or the agents and supervisors who performed the Woods Procedures we also did not receive satisfactory explanations for the errors or problems we identified.”
The IG noted that it appeared that some of the members of Crossfire Hurricane elected to utilize their own judgments rather than presenting the evidence to the OI for a legal and procedural decision:
“We believe that case agents may have improperly substituted their own judgments in place of the judgment of OI, or in place of the [FISA] court, to weigh the probative value of the information,” the report stated.
The IG report also hinted at biases within the investigative FBI group without specifically using the actual term:
“Failure to update OI on all significant case developments relevant to the FISA applications led us to conclude that the agents and supervisors did not give appropriate attention or treatment to the facts that cut against probable cause.”
As we have noted in prior articles, it also appears that Woods Procedures were not properly followed by Crossfire Hurricane FBI personnel:
“The agents and SSAs also did not follow, or appear to even know, the requirements in the Woods Procedures to re-verify the factual assertions from previous applications that are repeated in renewal applications and verify source characterization statements with the CHS handling agent and document the verification in the Woods File.”
The IG concluded this section by questioning the processes, oversight, and leadership within the FBI:
“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 and that FBI officials expected would eventually be subjected to close scrutiny, raised significant questions regarding the FBI chain of command’s management and supervision of the FISA process.”
“We concluded that the information that was known to the managers, supervisors, and senior officials should have resulted in questions being raised regarding the reliability of the Steele reporting and the probable cause supporting the FISA applications, but did not.”
The IG report noted that “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.”
Horowitz also provided a specific recommendation “that the FBI review the performance of the employees who had responsibility for the preparation, Woods review, or approval of the FISA applications as well as the managers and supervisors in the chain of command of the Carter Page investigation, including senior officials, and take any action deemed appropriate.”
But Horowitz did not leave the future compliance of the FBI in its own hands, noting, “We believe that additional OIG oversight work is required to assess the FBI’s compliance with Department and FBI FISA-related policies that seek to protect the civil liberties of U.S. persons.”
As part of this decision, Horowitz announced that there would be an ongoing compliance and oversight process from the Office of Inspector General:
“We have today initiated an OIG audit that will further examine the FBI’s compliance with the Woods Procedures in FISA applications that target U.S. persons in both counterintelligence and counterterrorism investigations.”
The Email Fabrication by OGC Attorney Kevin Clinesmith
The IG report detailed alterations made by FBI attorney Kevin Clinesmith regarding the background of Carter Page, and how this was used to help justify the FISA application:
“In an email from the liaison to the OGC [Office of General Counsel] Attorney [Clinesmith], the liaison provided written guidance, including that it was the liaison’s recollection that Page had or continued to have a relationship with the other agency.”
The liaison directed Clinesmith to “review the information that the other agency had provided to the FBI in August 2016. As noted above, that August 2016 information stated that Page did, in fact, have a prior relationship with that other agency.”
However, when Clinesmith subsequently sent the liaison’s email to “SSA 2,” who was to be the affiant for the third and final FISA renewal, Clinesmith “altered the liaison’s email by inserting the words ‘not a source’ into it, thus making it appear that the liaison said that Page was ‘not a source’ for the other agency.”
As the IG Report notes, “Relying upon this altered email, SSA 2 signed the third renewal application that again failed to disclose Page’s past relationship with the other agency.”
Clinesmith has reportedly been referred for criminal prosecution by Horowitz for allegedly altering the email connected to the surveillance warrant on Trump campaign adviser Carter Page
We have previously written on the actions of Clinesmith and noted that despite some media portrayals of him as a low-level attorney, Clinesmith was actually “the primary FBI attorney assigned” to the FBI’s counterintelligence investigation into alleged Russian election interference beginning in early 2017.
The Inspector General’s Findings on Christopher Steele
The Inspector General repeatedly noted in his report that the FBI appeared to make Steele—and his information—appear more credible to the FISA Court than it really was. Horowitz noted at several different sections the manner in which the FBI appeared to inflate Steele’s credibility to the FISA Court while downplaying or hiding known weaknesses regarding Steele’s past work.
The IG noted that “We were concerned by the FBI’s inaccurate assertion in the application that Steele’s prior reporting had been “corroborated and used in criminal proceedings,” which we were told was primarily a reference to Steele’s role in the FIFA corruption investigation.”
The IG found that the Crossfire Hurricane team had “speculated that Steele’s prior reporting had been corroborated and used in criminal proceedings without clearing the representation with Steele’s handling agent, as required by the Woods Procedures.”
Steele’s handling agent told the IG that “he would not have approved the representation in the application because only ‘some’ of Steele’s prior reporting had been corroborated.” According to the IG report, most of Steele’s information had not been corroborated and his information was never used in a criminal proceeding.
The IG noted that this failure in providing full disclosure to the FISA Court “created the inaccurate impression in the applications that at least some of Steele’s past reporting had been deemed sufficiently reliable by prosecutors to use in court, and that more of his information had been corroborated than was actually the case.”
The IG also noted that, despite being unverified, information from the Steele dossier was used “in an interagency assessment of Russian interference in the U.S. 2016 elections.”
Horowitz noted that the CIA was reluctant to include Steele’s reporting in their assessments but that “the FBI, including [Director James] Comey and [Deputy Director Andrew] McCabe, sought to include the reporting in the ICA [intelligence community assessment].”
As was previously known, some of Steele’s “reporting ultimately was presented in an appendix to the ICA” which was formally presented to President Barack Obama and members of his administration.
The IG also found that while FBI officials did travel abroad to meet with individuals who knew Steele and/or had knowledge of his work, the information was not put into his confidential human source folder.
Additionally, the FBI’s Validation Management Unit (VMU) completed a human source validation review of Steele in early 2017. Horowitz noted that the VMU review’s finding that Steele’s past criminal reporting was “minimally corroborated” was provided to the Crossfire Hurricane team.
As noted by the IG Report, the VMU findings on Steele “was in tension with the source characterization statement included in the initial FISA application, which represented that Steele’s prior reporting had been ‘corroborated and used in criminal proceedings.’”
The IG also noted that the “FBI’s interviews of Steele, his Primary Sub-source, a second sub-source, and other investigative activity, revealed potentially serious problems with Steele’s descriptions of information in his reports.”
Finally, the IG Report noted that the Crossfire Hurricane team was “unable to corroborate any substantive allegations regarding Carter Page contained in Steele’s election reporting which the FBI relied upon in the FISA applications.”
Statement from Attorney General William Barr
Immediately following the release of the IG Report, Attorney General William Barr issued a statement of his own in which he made clear his displeasure over the actions taken by the FBI in 2016 and early 2017 and that he believed that FBI officials had, indeed, misled the FISA Court:
“The Inspector General’s report now makes clear that 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. It is also clear that, from its inception, the evidence produced by the investigation was consistently exculpatory. Nevertheless, the investigation and surveillance was pushed forward for the duration of the campaign and deep into President Trump’s administration. In the rush to obtain and maintain FISA surveillance of Trump campaign associates, 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. The Inspector General found the explanations given for these actions unsatisfactory. While most of the misconduct identified by the Inspector General was committed in 2016 and 2017 by a small group of now-former FBI officials, the malfeasance and misfeasance detailed in the Inspector General’s report reflects a clear abuse of the FISA process.”
Given the forcefulness of Barr’s statement, one could make an argument that it carries as much or more weight than the IG Report itself.
Statement from US Attorney John Durham
Following on the heels of AG Barr’s press release, U.S. Attorney John Durham issued a statement of his own, noting that unlike the Horowitz investigation, “our investigation is not limited to developing information from within component parts of the Justice Department.”
Durham noted that his investigation had expanded its parameters to include “developing information from other persons and entities, both in the U.S. and outside of the U.S.”
Finally, Durham provided a strong and somewhat surprising conclusion, noting his disagreement with some of the conclusions reached by IG Horowitz:
“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.”