The Ugly Truth in the Nunes Memo
On Oct. 21, 2016, attorneys from the FBI and the Department of Justice sought and received a probable-cause order from the United States Foreign Intelligence Surveillance Court targeting an American citizen named Carter Page. This information was revealed in a recently declassified four-page memo prepared by the majority staff (i.e., Republicans) of the House Permanent Select Committee on Intelligence on behalf of the majority (i.e., Republican) members of the same committee. This memo has been at the heart of a political firestorm pitting the Republican chair of the House intelligence committee, Devin Nunes, against his Democratic co-chair, Adam Schiff, and the administration of President Donald Trump against the FBI, the DOJ and the U.S. intelligence community.
At stake is the credibility of the ongoing investigations by various congressional committees—including that of the House intelligence committee, as well as the criminal investigation by special prosecutor Robert Mueller—that arose from allegations that people associated with the campaign of then-candidate Trump colluded with the Russian government to interfere with the 2016 presidential election to tip it in favor of now-President Trump.
Page, a onetime volunteer foreign policy adviser to then-candidate Trump, was one of the people suspected of working with the Russians to undermine American democracy. The Foreign Intelligence Surveillance Act (FISA) warrant sought and executed by the FBI targeting Page has emerged as the focal point of the politicized issue surrounding allegations of Russian interference in the election and whether opponents of the Trump candidacy used the FBI investigation to spy on and undermine Trump’s presidency.
The release of the memo was a drawn-out piece of political theater, in which the committee voted along party lines to implement an obscure rule, allowing it to declassify information that had come into its possession as part of its oversight responsibilities. The memo was forwarded to the president, who had five days to decide either to block publication or send it back to the committee for action. This rule played out for the public to see, replete with objections from the Democratic minority, which sought to publish a dissenting memo, and the FBI and DOJ, which decried publication of the memo as a frontal assault on the American system of justice.
In the end, the memo was published with great fanfare, with both sides claiming that their respective positions were sustained.
The Republican case set forth in the memo is centered on its assertion that the FBI and DOJ made extensive use of a dossier containing derogatory information prepared by former British intelligence officer Christopher Steele, under contract to Fusion GPS, a research company contracted by the Democratic National Committee and Hillary for America to conduct opposition research into Trump’s candidacy. The Steele dossier, the conservative narrative goes, was then used to mislead the FISA court into granting the initial probable-cause order and three further extensions.
Democrats, backed up by the FBI and DOJ, counter that the memo is a meaningless collection of cherry-picked information that has been taken out of context and/or exaggerated to manufacture a case that cannot be sustained by the totality of the facts, most of which were omitted from the memo by its drafters. The Steele dossier, the Democrats contend, was but a small part of a larger collection of information that underpinned the justification for the FISA warrant targeting Page.
A plain read of the House intelligence committee majority memo appears to back up the Democratic stance that the case put forward by the Republicans was much ado about nothing. However, an investigation of the information suggested by the memo, but not spelled out in its text, sustains the Republican contention that either the FBI and DOJ engaged in a deliberate effort to deceive the FISA court, the FISA court is little more than a rubber-stamp entity that fails in its mission of protecting the civil rights of Americans targeted by the FBI, or both.
Any responsible examination of the issues surrounding the use of the Steele dossier in sustaining the successive FBI/DOJ applications for a FISA warrant targeting Page must start with an acknowledgement that, at the time of the publication of the House intelligence committee majority memo, Page has not been identified as a target of interest for the special prosecutor’s investigation into the issues he was accused of in the first place—namely, colluding with the Russian government to interfere in the 2016 presidential election. Page is, as of this writing, uncharged in the face of a FISA court warrant application process that is supposed to establish probable cause that a crime has been committed. This simple fact serves as a signal that something is wrong with the information the FBI and DOJ relied on in sustaining the case for a warrant. That three successive applications for extension of the FISA warrant were approved, even though each application was required to demonstrate that the previous warrant had produced intelligence that furthered the original case sustaining a finding of probable cause, is extremely problematic.
The House intelligence committee majority memo highlights how Steele researched the links between Trump and the Russian government. In the parlance of political campaigns, this kind of work is known as “opposition research.” Steele performed his tasks diligently, preparing some 16 memos under contract between June and October 2016. When added to a 17th memo prepared in December 2016, after his contract with Fusion GPS had expired, Steele’s work comprised 35 pages of material that collectively became known as the “ Steele dossier.” Much has been written about the contents of the dossier and their relationship to the investigation into possible collusion between people affiliated with Trump’s candidacy and the Russians. But the House intelligence committee majority memo sheds new light on the dossier, allowing for a more detailed examination of its contents and usage.
Glenn Simpson, co-founder of Fusion GPS, told investigators from both the Senate and the House that Steele was so concerned with the national security implications of the information he was collecting on Trump that, on his own volition, he reached out to a prior contact in the FBI stationed in Rome to bring it to the attention of U.S. authorities. Steele’s connection with this FBI contact dated to 2010, when Steele provided reporting to the FBI’s Eurasian Organized Crime Task Force that proved useful in a subsequent FBI investigation of corruption in the upper levels of the world soccer association, or FIFA. Steele’s FBI contact, special agent Michael Gaeta, was, as of 2016, assigned to the U.S. Embassy in Rome as an assistant legal attaché. Steele and Gaeta met in Rome on July 5, 2016, when Steele provided a copy of his initial memo that, among other details, reported on the Russians’ compilation of a dossier of compromising information on Hillary Clinton.
The media has treated this meeting very casually, as if it were a chance encounter between two old friends. This, however, is not how the FBI works. Steele may have viewed Gaeta as an “old friend,” but to Gaeta, Steele was what the FBI called an “extra-territorial confidential human source,” or ET CHS, with whom any relationship required vetting and approval at multiple levels of FBI bureaucracy, regardless of Steele’s status as a prior confidential source. The FBI is not in the business of haphazardly collecting information on American citizens, especially high-profile ones such as Donald Trump. Before Gaeta could continue working with Steele, several steps would have had to been taken to validate his utility as an FBI source.
First and foremost, there would have to be what the FBI calls “an open full investigation” that would guide any relationship between the FBI and the Steele. This could be fulfilled by determining whether the information he provided supported an existing investigation or was of sufficient quality and detail to warrant opening a new, stand-alone investigation. Given the sensitive circumstances surrounding the information Steele provided, any request for guidance submitted by Gaeta would have been subjected to even greater scrutiny by the FBI bureaucracy.
The information Steele provided to Gaeta would have been forwarded to the FBI’s directorate of intelligence, which oversees the FBI’s confidential human source program, for evaluation in accordance with the agency’s confidential human source validation manual, which establishes standardized policy and guidance regarding the validation process for reliability, authenticity, integrity and overall value of a given source. According to the FBI’s confidential human source policy manual, this evaluation would have been overseen by the FBI’s human intelligence management unit. The House intelligence committee majority memo made mention of this process when it noted that, according to assistant director Bill Priestap, head of the FBI’s counterintelligence division, an “independent unit inside the FBI” was conducting source validation of the Steele information (the memo further noted that this validation process was “still in its infancy,” and that the Steele data had been “minimally corroborated”).
According to the procedures outlined in the FBI’s manual, the agency would have subjected Gaeta’s request to use Steele as an CHS ET to what is called an “enhanced review,” which would have been overseen by Carlos Cases, the special agent in charge of the FBI’s international operations division, who was responsible for legal attaché operations at the time.
Steele also would have been thoroughly vetted by special agent Peter Strzok, deputy director of the FBI’s counterintelligence directorate, who oversaw a counterintelligence investigation opened by the FBI in late June 2016 to investigate allegations of Russian interference in the elections arising from the alleged theft and subsequent public dissemination of emails from the computer servers of the Democratic National Committee (DNC). Strzok’s investigation provided the “hook” needed by Gaeta and the FBI to legitimately consider Steele as an ET CHS, and Strzok would have carefully evaluated all information provided by Steele.
This is not an insignificant factor. The House intelligence committee majority memo notes that the Oct. 21, 2016, FISA application targeting Page incorporated information from an FBI investigation into another foreign policy adviser to the Trump campaign named George Papadopoulos. Papadopoulos had come to the FBI’s attention through information provided by the Australian government that detailed a May 2016 meeting between an Australian diplomat, Alexander Downer, and Papadopoulos in a London bar. During this meeting, Papadopoulos recounted an April 2016 conversation with a Maltese professor named Joseph Mifsud, who claimed that the Russian government had “thousands” of emails belonging to Clinton that contained compromising information. WikiLeaks’ publication of stolen DNC emails in June 2016 provided the FBI with the nexus needed to use the Australian information to open an investigation on Papadopoulos.
For Strzok, the information Steele provided Gaeta about the existence of a Russian dossier of compromising communications involving Clinton provided corroboration for the Downer/Papadopoulos information. This created the kind of circular corroboration that human source managers seek to avoid, one in which Steele’s information was used to corroborate the Papadopoulos information, which was then used to sustain a FISA warrant application targeting Carter Page that was justified, in large part, by the information provided to the FBI by Steele. Simply put, the Papadopoulos information was not, as detractors of the House intelligence committee majority memo claim, a stand-alone source of independent corroboration that moots the significance of the Steele dossier when it comes to the granting of a FISA warrant against Page. Complicating matters further is that, according to Glenn Simpson, Gaeta appears to have shared the existence of the Papadopoulos information with Steele, contaminating Steele as an independent source and further diluting the legitimate utility of the Papadopoulos information in support of a FISA warrant application.
The degree to which the FISA court was made aware of the extent of the cross-corroboration and source contamination inherent in the Papadopoulos information used to sustain the FISA warrant application targeting Page is unknown. However, the communication of sensitive FBI information by a case agent such as Gaeta to a confidential human source such as Steele is a violation of FBI procedure, and would normally be justification for invalidating Steele as a confidential human source.
In short, Steele’s information should never have seen the light of day in any FISA court warrant application. This would also hold true for any information, such as the Papadopoulos conversation with Downer, for which Steele’s information was used as a means of corroboration.
This is the kind of vetting that would be conducted by a specially designated confidential human source coordinator within both the responsible FBI field office and the DOJ. The national security division of the DOJ would have been forwarded all relevant reports concerning the FBI’s intent to use Steele as a confidential human source, which it would then use to conduct a “meaningful analysis” regarding the utility and viability of Steele as a confidential human source. Given the sensitivity of the matter being investigated—the potential involvement of campaign personnel advising Trump in collusion with the Russian government to interfere with the presidential election—the head of the DOJ national security division, who at that time was John Carlin, U.S. assistant attorney general for national security, would have been aware of, and probably overseen, the vetting of Steele as an FBI confidential human source (Carlin previously served as the chief of staff for former FBI Director Robert Mueller).
The process of vetting and validating a confidential human source as sensitive as Steele would take about 60 days. During this time, the FBI office responsible for handling Steele—in this case, the international operations division—would develop a detailed plan involving both the handling of the confidential human source, as well as the kinds of information desired for collection by the source, and the methods used to collect this information. Because Steele made extensive use of sub-sources, this aspect of his work would also have to be factored into the plan. This time frame tracks with the chronology of Simpson’s declared interactions with the FBI—about 2.5 months transpired between Steele’s initial meeting in Rome on July 5, 2016, and his follow-up meeting in mid-to-late September 2016.
According to The New York Times, the FBI was willing to pay Steele $50,000 for targeted intelligence collection in support of its investigation of collusion between the Trump campaign and Russia. This amount represents far more than a simple reimbursement for travel. Steele was being paid to implement an intelligence collection plan devised by the FBI to further an ongoing counterintelligence investigation into the Trump campaign less than a month and a half before the presidential election. What emerges is the reality that when Steele traveled to Rome in September 2016, it wasn’t for continuing an informal relationship between himself and special agent Gaeta, as Simpson contended in his congressional testimony. By this time, Steele had been carefully vetted by both the FBI and DOJ, and Gaeta had been formally designated as the case agent responsible for handling an extra-territorial confidential human source—Christopher Steele.
This was not a relationship unknown to Steele. He had been through this process before, when he cooperated with the FBI on the FIFA investigation. As a confidential human source, Steele would have been carefully briefed on what the FBI calls “admonishments”—what he could do, and couldn’t do, while working for the FBI. The nature of their financial arrangement would have been spelled out, as well as the intelligence collection plan Steele was being charged with implementing.
The latter is a critical factor that has been overlooked in the coverage of the Steele dossier. Whereas Steele and Simpson have treated the various memos prepared by Steele as part of his Fusion GPS contract, and consisting of reporting from agents operating without specific direction from Steele, the fact is that following the late September 2016 meeting with the FBI in Rome, Steele was serving as a controlled confidential human source for the FBI, preparing reports from sub-sources based upon specific tasking from the FBI. The FBI relationship with Steele was that of a controlled extra-territorial confidential human source whose activities were scripted by both the FBI and the DOJ to further the prosecutorial or intelligence objectives of the investigation. Every aspect of the relationship between the FBI and Steele would have been documented at multiple levels within the FBI and DOJ.
The extent to which Steele’s relationship with Fusion GPS was communicated to the FBI and the DOJ is unknown—the House majority memo states that in the FISA warrant, the FBI and DOJ make a reference to a single U.S. citizen as Steele’s current employer (Simpson told congressional investigators that Peter Fritsch, a co-founder of Fusion GPS, was responsible for contractual relations between Fusion GPS and Steele). The House Intelligence Committee majority memo notes, however, that both the FBI and DOJ were aware of the “political origins” of the information Steele had provided to the FBI. It is not known to what extent, if any, Steele shared the money he had been paid to prepare the reports on Trump—some $160,000—or that the source of these payments was Fusion GPS, through Perkins Coie, a law firm operating on behalf of the Democratic National Committee and Hillary for America.
Moreover, it is not known to what extent, if any, the FBI and DOJ were aware that the information Steele was providing them as part of the program of work for which Steele was to be paid $50,000 was going to be shared with Fusion GPS as part of Steele’s existing contractual relationship with that firm. The FBI does have a history of using confidential human sources to access “business records,” a category that could be used to describe the reports Steele was producing on behalf of GPS Fusion.
But it is unheard of for the FBI to seek to collect “business records” for use in an investigation that was directly influenced by an intelligence collection plan prepared by the FBI in support of prosecutorial objectives set forth by the DOJ. This, however, is what transpired when the FBI and Steele embarked on their relationship in the aftermath of the September 2016 meeting in Rome. Steele, by this time a controlled intelligence collection asset operating under the guidance of his case agent—Gaeta—prepared three reports while under contract with the FBI as a confidential human source. They are dated Oct. 12, 18 and 19, and they address aspects of Page’s alleged collusion with the Russian government.
The extent to which these specific reports influenced the Oct. 21, 2016, FISA warrant application targeting Page is unknown. Steele did, however, provide Gaeta with two memos prepared on behalf of Fusion GPS in July and August of 2016 that detailed specific allegations of collusion between Page and the Russian government. These memos helped shape the FBI’s utilization strategy involving Steele.
Glenn Simpson, in his testimony before congressional investigators, indicated that the FBI had expressed to Steele, during their September 2016 meeting in Rome, its concern about media coverage of its investigation of Page. Of concern was a report by Michael Isikoff, published by Yahoo News on Sept. 23, 2016—prior to the meeting between Steele and the FBI in Rome. Isikoff reported that, according to a “Western intelligence source,” Page traveled to Moscow in July 2016, where he met with Igor Sechin, executive chairman of Rosneft. During this meeting, the source told Isikoff, Sechin raised the issue of lifting of economic sanctions imposed by the United States on Russia in the aftermath of Russia’s 2014 annexation of the Crimea. Isikoff also reported that U.S. intelligence agencies had received reports that Page met with Igor Diveykin, a senior aide to Russian President Vladimir Putin, who U.S. officials believed was responsible for Russia’s collection of intelligence about the 2016 election. This information was relayed to Isikoff by the same “Western intelligence source.”
The problem with the Isikoff report is the similarity between it and a July 20, 2016, report Steele prepared and provided to the FBI during their meeting in Rome. The FBI asked Steele if he was the source for the Isikoff report, something Steele denied. This was a lie. In documents submitted to a British court, Steele acknowledged that he was the source for the Isikoff article, something Simpson confirmed in his congressional testimony. The Steele lie played an important role in shaping the information the FBI and DOJ provided in support of their Oct. 21, 2016, FISA warrant application targeting Page. The Isikoff article was submitted to the FISA court as corroborating evidence, along with a statement attributed to Steele denying that he was the source of the information used by Isikoff.
Steele’s lies caught up with him when, on Oct. 31, 2016, David Corn wrote an article in Mother Jones titled “A Veteran Spy Has Given the FBI Information Alleging a Russian Operation to Cultivate Donald Trump,” with a subtitle asking, “Has the bureau investigated this material?” Steele, the much-admired former British intelligence officer, had committed the ultimate sin an FBI confidential human source can commit—he lied to his handlers. Describing Steele (whom the article did not name) as a “credible source with a proven record of providing reliable, sensitive and important information to the US government,” David Corn wrote that “the former spy told me that he was reluctant to be talking with a reporter. He pointed out this was not his common practice. ‘Someone like me stays in the shadows,’ he said. But he indicated that he believed this material was important, and he was unsure how the FBI was handling it. Certainly, there had been no public signs that the FBI was investigating these allegations.”
The problem for the FBI was that it had used Steele’s information to support its investigation into possible collusion between the Trump campaign and Russia, mainly in the form of sworn affidavits submitted in support of a FISA warrant derived from the FBI’s interactions with Steele. Corn’s article exposed as a lie the information at the heart of the FBI and DOJ’s FISA warrant application, simultaneously invalidating any information attributed to Steele, as well as all information that relied upon Steele’s now-tainted information for corroboration. This included both Isikoff’s appended article and the Papadopoulos information. As of October 2016, the FBI had yet to interview Papadopoulos. Without corroboration of the information Steele provided in his June 20, 2016, report, turned over to Gaeta on July 5, 2016, the counterintelligence investigation Strzok headed would have not been able to act on the information the Australian government provided concerning alleged barroom conversations between Papadopoulos and Downer. The “emails” allegedly alluded to by Papadopoulos that Mifsud claimed Russia possessed would have had no “hook” to corroborate them. The emails WikiLeaks released in July 2016 that triggered Strzok’s investigation had either not been written at the time Papadopoulos spoke with Mifsud in April 2016 or had not yet been compiled by the malware alleged by the cybersecurity company CrowdStrike to have been behind the theft of the DNC emails.
Void of the Steele dossier as corroboration, the Papadopoulos-Mifsud conversation, as reported by Downer, simply had no legal legs to stand on, and as such would have been unusable in support of a FISA warrant application. Underscoring the seriousness the FBI attached to this issue, James Baker, the FBI’s general counsel, met with Corn prior to the 2016 election. Corn specifically denies that Baker was a source for his article on Steele. The only other explanation for a Baker-Corn meeting would be for the FBI’s general counsel to confirm Steele as Corn’s source in support of the FBI’s subsequent decision to sever relations with Steele, including the forfeiture of the $50,000 payment Steele was to have received for his work.
The FBI’s decision to suspend and then sever its confidential human source relationship with Steele is reflected in the House intelligence committee majority memo, as is the FBI’s decision to not give Steele the payment that had been authorized for his work on behalf of the FBI, reflected in the three October memorandums previously cited.
The House intelligence committee majority memo specifically notes that Steele had lied to the FBI about his contact with Isikoff. This helps explain the Jan. 18, 2018, letter from the chairman of the Senate Judiciary Committee, Chuck Grassley, together with Sen. Lindsey Graham, chairman of the subcommittee on crime and terrorism, which referred Steele to the DOJ on suspicion of lying to the FBI about the dissemination of information by Steele to the media. The referral contained a top-secret memorandum prepared by the judiciary majority staff that would, from its classification, appear to be derived from information relating to statements made by Steele to the FBI about the Isikoff article.
The role the FBI general counsel played in investigating the link between Steele and the media brings to light another important facet of the complex web woven by Steele in marketing his Fusion GPS-funded opposition research as “intelligence.” Corn, in his Mother Jones article, cites communications between Sen. Harry Reid and FBI Director James Comey, in which Reid refers to “explosive information” in the possession of the FBI pertaining to Page’s alleged meetings in Moscow in July 2016 with “sanctioned” Russian officials. The specificity of the information cited by Reid strongly mirrors the information contained in Steele’s July 26, 2016, report detailing his sub-sources’ allegations about Carter’s purported meeting with Russian officials. Reid’s communication with Comey closely tracks with a top-secret briefing provided to Reid by former CIA Director John Brennan, in which the information about Page was shared.
Left unexplored in the House majority memo is the role, if any, intelligence information from agencies other than the FBI played in sustaining the FISA warrant targeting Page. It appears as if the CIA, at least, was in possession of information about Page’s Moscow trip that closely aligns with the Steele reporting. Steele has emerged as the only identified source that ties Page to both Sechin and Diveykin. Isikoff’s article specifically notes that the information about Sechin’s and Diveykin’s alleged meetings with Page were shared with “U.S. intelligence agencies,” and cites the “Western intelligence officer” (i.e., Steele) as the source of this information.
There is a real possibility that the Steele dossier served as the source of the information briefed to Reid by Brennan and, by extension, any CIA intelligence that might have been relied upon by the FBI and DOJ in sustaining its Oct. 21, 2016, FISA warrant application.
The House intelligence committee majority memo notes that then-acting FBI Director Andrew McCabe, in closed-door testimony before the House intelligence committee in December 2017, stated that the FBI would not have sought a FISA warrant without the information provided by Steele. Democratic representatives familiar with McCabe’s testimony have contested the context and completeness of the majority staff’s assertion regarding McCabe’s statement. But the record regarding the role the Steele dossier played in furthering the interest of the FBI and DOJ in Page’s activities, which culminated in the Oct. 21, 2016, FISA warrant application being submitted and approved by the FISA court, seems to back up the majority staff.
Detractors of the House Intelligence Committee majority memo point out that the Steele dossier is irrelevant as it relates to any FISA warrant application, noting that Page’s history of being a potential target for recruitment by Russian intelligence services would alone sustain any FISA warrant application. Page was caught up in a 2013 FBI investigation against a Russian intelligence operative named Victor Pobodnyy. Page’s name had come up in the course of electronic surveillance the FBI carried out. The FBI interviewed Page in 2015 and cleared him of any wrongdoing.
The issue before the FISA court was not whether Page could have been “developed” as an asset of Russian intelligence. While such suspicions might serve to open an FBI investigation, they could not, on their own, sustain a FISA warrant. The critical information the FISA court needed is whether the target of the warrant was knowingly working on behalf of a foreign entity. This is the case that the FBI and DOJ would need to make to the FISA court, in the form of a sworn affidavit and application. The FBI and DOJ would need to attest that they possessed evidence that Page knew he was helping the Russians. There had to be actual evidence of action.
The 2015 interview the FBI conducted with Page—which would have been part of any review of the Page case by the DOJ’s national security division in accordance with the “Woods procedures” instituted in 2003 that mandate a review of any related criminal investigations and the existence of any prior relationship between the subject and the FBI—would have resolved any questions about whether Page was a knowing asset of the Russian intelligence service in 2013, thereby negating any chance that the FBI would be able to revive the 2013 contact between Page and the Russians as evidence of cooperation with Russia in 2016.
The standard before the FISA court was whether Page was probably working as an agent of Russia. The only way the FBI and DOJ would have been able to sustain such a finding is through intelligence reporting that alleged that Page met with senior Russian officials during his July 2016 visit to Moscow to discuss the lifting of economic sanctions and the possession by Russia of compromising material on Clinton. The sole source of reporting of this nature and specificity appears to be Steele, whose reporting at best was found by the FBI to be “minimally corroborated” and, at worst, infected with lies, deceit and political intent that borders on malfeasance.
While the initial FISA warrant application deals with a hypothetical that, according to the application, can only be proved through the interception of target communications, the issue upon renewal of the warrant is different. Here, the FBI and DOJ must demonstrate that, through the original FISA warrant, communications were intercepted that corroborated the original warrant, and demonstrate that further access to this communication would lead to further evidence being collected that could result in a successful prosecution.
Both Comey and former deputy Attorney General Sally Yates signed off on the initial application for a FISA warrant in October 2016, as well as the initial application for renewal submitted in January 2017. The FBI and DOJ would have had Page under surveillance during his December 2016 visit to Moscow, made after he had left the Trump campaign, and as such could have pointed to Carter’s travels as an indication that continued surveillance might result in something of value being collected.
This presupposes that the FISA renewal left unchanged the information linked to Steele that underpinned its initial application. By January 2018, however, the FBI had terminated its relationship with Steele based on the deceit of the former British intelligence officer. As such, all Steele’s reporting should have been recalled as unreliable, as well as any corroborating information that could be linked to Steele in any way (such as the Isikoff article, the Papadopoulos investigation and the CIA’s information as briefed to Sen. Reid). Any sworn affidavit and application used in support of a FISA renewal that sustained the Steele reporting would have been misleading at best, and most probably false, making anyone whose signature appears in any certifying capacity open to charges of making a false statement—including both Comey and Yates.
The next application for renewal occurred in April 2017. This one would have been signed off by Comey and then-acting Attorney General Dana Boente, who took over from Yates after she was fired by Trump in January 2017—shortly after she signed off on Page’s FISA warrant renewal application.
What is interesting about the April 2017 application is that the level of public scrutiny of the Steele dossier engendered by BuzzFeed’s publication of it in January 2017 would seem to have at least raised the issue of Steele’s credibility as a source, something that should have been reflected in the FISA renewal application.
Moreover, by the time of the renewal application, Page had met with the FBI over the course of 10 hours in March 2017, when he was questioned in depth about his interactions with Russia. Following past practice, the FBI agents conducting the interview would have relied upon FISA material to try and catch Page in a “perjury trap,” where it could be proved that he made a false statement to a federal agent. No such charges have been filed, strongly suggesting that Page was honest and forthright with the FBI. To what extent, if any, the Steele dossier factored in the April 2017 application for renewal, and whether the FBI informed the FISA court about the 10 hours of questioning it conducted with Page, is not known. Nor is the context, if any, the FBI provided to any intercepted communications that would raise them to the level needed to sustain a renewal of a FISA warrant.
The final FISA renewal application was submitted and approved in July 2017. This one was signed off by McCabe and acting Attorney General Rod Rosenstein. By this time, the media had run with numerous stories about Page being the subject of a FISA warrant, and Page himself had appealed to both Rosenstein and Mueller to make public the application used to grant his FISA warrant. Page was unemployed, his professional life ruined by the public revelations about allegations that he had colluded with the Russians and was under active FBI investigation, the totality of which could be linked back to the information Steele provided the FBI.
And yet somehow, in the face of overwhelming evidence of Page’s innocence, the FISA court saw fit to grant yet another renewal of its warrant.
In the immediate aftermath of the release of the House Intelligence Committee majority memo, Comey tweeted, “That’s it? Dishonest and misleading memo wrecked the House intel committee, destroyed trust with Intelligence Community, damaged relationship with FISA court, and inexcusably exposed classified investigation of an American citizen. For what? DOJ & FBI must keep doing their jobs.”
The House intelligence committee majority memo has not been shown to have been either dishonest or misleading. If anything, it failed to go as far as it could have, and should have, in making its case that the FBI and DOJ abuse of the FISA court constituted a willful violation of the constitutionally protected civil liberties of an American citizen.
The bottom line is that the memo exposed the ugly truth that, at least in the case of Page, the FBI and DOJ, on multiple occasions, deliberately lied to or otherwise misled the FISA court in an effort to violate Page’s Fourth Amendment rights against unlawful search and seizure, or that the FISA court is, in fact, little more than a rubber-stamp entity incapable of adequate oversight of the enormous responsibilities it has been entrusted with—or both.
At a minimum, every FBI agent and DOJ official who signed off on any aspect of Page’s FISA warrant application should be subpoenaed to appear before Congress to explain the reasoning behind their actions, and to be held accountable to the rule of law if it turns out he or she in any way suborned the truth through actions or words.
Having started down this path, the GOP members of the House Permanent Select Committee on Intelligence must now finish what they started, even if this leads to the arrest and prosecution of former and current members of the FBI and DOJ. Failure to do so would demonstrate that its actions to date were merely taken out of a sense of political partisanship, and that its stated concern for the massive violation by the FBI and DOJ of the foundational civil liberty protections afforded American citizens by the Constitution was simply lip service.
The House intelligence committee majority memo has exposed the harsh reality that the FISA court system is fundamentally broken, and that the primary reason for this is the lack of oversight and due diligence given the sworn applications of FBI agents and DOJ officials who put their career ambition above the Constitution of the United States.
“We must not make a scarecrow of the law,” William Shakespeare wrote in his play “Measure for Measure,” “setting it up to fear the birds of prey, and let it keep one shape till custom make it their perch and not their terror.” If the FISA court, and those who have perjured themselves before it, are not held to account for their actions, then the rule of law in America will become just that—a scarecrow upon which birds of prey perch as they ravage those whom the law was supposed to protect in the first place.