The memo released by the House Intelligence Committee makes several claims that are in dispute. Here are key points in the debate.
This memorandum provides Members an update on significant facts relating to the Committee's ongoing investigation into the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) and their use of the Foreign Intelligence Surveillance Act (FISA) during the 2016 presidential election cycle. Our findings, which are detailed below, 1) raise concerns with the legitimacy and legality of certain DOJ and FBI interactions with the Foreign Intelligence Surveillance Court (FISC), and 2) represent a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process.
David Lauter Washington Bureau Chief
Notably, this memo by the Intelligence Committee majority staff does not assert that the DoJ and FBI actions were illegitimate or illegal, just that they "raise concerns."
On October 21, 2016, DOJ and FBI sought and received a FISA probable cause order (not under Title VII) authorizing electronic surveillance on Carter Page from the FISC. Page is a U.S. citizen who served as a volunteer advisor to the Trump presidential campaign. Consistent with requirements under FISA, the application had to be first certified by the Director or Deputy Director of the FBI. It then required the approval of the Attorney General, Deputy Attorney General (DAG), or the Senate-confirmed Assistant Attorney General for the National Security Division.
The date is significant because Page was no longer working for the Trump campaign at this point. Trump's supporters have argued that the surveillance was improper because it was targeted at his campaign.
The FBI and DOJ obtained one initial FISA warrant targeting Carter Page and three FISA renewals from the FISC.
The fact that the FISA court renewed the warrant on Page three times was not previously on the record and is significant. That means the federal judges who have been assigned to the FISA court on four separate occasions decided that prosecutors had met the legal standard of showing evidence of probable cause to believe that Page was "a foreign power or an agent of a foreign power.”
As required by statute (50 U.S.C. §,1805(d)(1)), a FISA order on an American citizen must be renewed by the FISC every 90 days and each renewal requires a separate finding of probable cause. Then-Director James Comey signed three FISA applications in question on behalf of the FBI, and Deputy Director Andrew McCabe signed one. Then-DAG Sally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one or more PISA applications on behalf of DOJ.
Due to the sensitive nature of foreign intelligence activity, FISA submissions (including renewals) before the FISC are classified. As such, the public's confidence in the integrity of the FISA process depends on the court's ability to hold the government to the highest standard – particularly as it relates to surveillance of American citizens.
However, the FISC's rigor in protecting the rights of Americans, which is reinforced by 90-day renewals of surveillance orders, is necessarily dependent on the government's production to the court of all material and relevant facts. This should include information potentially favorable to the target of the FISA application that is known by the government. In the case of Carter Page, the government had at least four independent opportunities before the FISC to accurately provide an accounting of the relevant facts. However, our findings indicate that, as described below, material and relevant information was omitted.
1) The "dossier" compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application.
This is one of the memo's key, contested assertions. Republicans say the material in the Steele dossier was "essential" for the warrant application; Democrats say it was just one piece of evidence among several. The actual evidence to tell whether this statement is true or false would be the warrant affidavit, which remains highly classified.
Steele was a longtime FBI source who was paid over $160,000 by the DNC and Clinton campaign, via the law firm Perkins Coie and research firm Fusion GPS, to obtain derogatory information on Donald Trump's ties to Russia.
a) Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele's efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials.
Without seeing the application, there's no way to verify if this statement is true. But legal experts have also noted that a judge reviewing a warrant application might not find the question of who paid Steele relevant. Warrants often rely on information given to law enforcement officials by informants, and informants typically have ulterior motives. That's not a new issue for judges.
b) The initial FISA application notes Steele was working for a named U.S. person, but does not name Fusion GPS and principal Glenn Simpson, who was paid by a U.S. law firm (Perkins Coie) representing the DNC (even though it was known by DOJ at the time that political actors were involved with the Steele dossier). The application does not mention Steele was ultimately working on behalf of – and paid by – the DNC and Clinton campaign, or that the FBI had separately authorized payment to Steele for the same information.
2) The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff , which focuses on Page's July 2016 trip to Moscow. This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself to Yahoo News. The Page FISA application incorrectly assesses that Steele did not directly provide information to Yahoo News. Steele has admitted in British court filings that he met with Yahoo News – and several other outlets – in September 2016 at the direction of Fusion GPS. Perkins Coie was aware of Steele's initial media contacts because they hosted at least one meeting in Washington D.C. in 2016 with Steele and Fusion GPS where this matter was discussed.
a) Steele was suspended and then terminated as an FBI source for what the FBI defines as the most serious of violations – an unauthorized disclosure to the media of his relationship with the FBI in an October 30, 2016, Mother Jones article by David Com. Steele should have been terminated for his previous undisclosed contacts with Yahoo and other outlets in September – before the Page application was submitted to the FISC in October – but Steele improperly concealed from and lied to the FBI about those contacts.
As with the payment issue, the legal question here is whether a judge would consider this relevant in weighing the evidence presented in the application for a warrant.
b) Steele's numerous encounters with the media violated the cardinal rule of source handling – maintaining confidentiality – and demonstrated that Steele had become a less than reliable source for the FBI.
3) Before and after Steele was terminated as a source, he maintained contact with DOJ via then-Associate Deputy Attorney General Bruce Ohr, a senior DOJ official who worked closely with Deputy Attorneys General Yates and later Rosenstein. Shortly after the election, the FBI began interviewing Ohr, documenting his communications with Steele. For example, in September 2016, Steele admitted to Ohr his feelings against then candidate Trump when Steele said he "was desperate that Donald Trump not get elected and was passionate about him not being president." This clear evidence of Steele's bias was recorded by Ohr at the time and subsequently in official FBI files – but not reflected in any of the Page FISA applications.
The key question here is whether Steele was biased against Trump before or after he conducted his investigation. If he began the investigation with a bias, that would raise questions about his credibility. If he became "desperate that Donald Trump not get elected" because his investigation convinced him that Trump was subject to Russian blackmail, that would be a different matter.
a) During this same time period, Ohr's wife was employed by Fusion GPS to assist in the cultivation of opposition research on Trump. Ohr later provided the FBI with all of his wife's opposition research, paid for by the DNC and Clinton campaign via Fusion GPS. The Ohrs' relationship with Steele and Fusion GPS was inexplicably concealed from the FISC.
4) According to the head of the FBI's counterintelligence division, Assistant Director Bill Priestap, corroboration of the Steele dossier was in its "infancy" at the time of the initial Page FISA application. After Steele was terminated, a source validation report conducted by an independent unit within FBI assessed Steele's reporting as only minimally corroborated. Yet, in early January 2017, Director Comey briefed President-elect Trump on a summary of the Steele dossier, even though it was – according to his June 2017 testimony – "salacious and unverified." While the FISA application relied on Steele's past record of credible reporting on other unrelated matters, it ignored or concealed his anti-Trump financial and ideological motivations. Furthermore, Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.
It's notable that the memo does not quote McCabe's testimony, but merely purports to summarize it. The committee has not released a transcript of what McCabe said. Democrats say the memo's summary of McCabe's words is misleading. The statement that "no surveillance warrant would have been sought" could mean that the Steele dossier was crucial to meet the standard of probable cause. If McCabe said that, it would significantly bolster the Republican case. But the statement could also mean that the FBI, which had other things on its plate, wouldn't have moved quickly to get a warrant for surveillance on Steele if not for the dossier, but had plenty of evidence without it. Or it could mean something else entirely. Without McCabe's actual words, which the committee has, the meaning is uncertain.
5) The Page FISA application also mentions information regarding fellow Trump campaign advisor George Papadopoulos, but there is no evidence of any cooperation or conspiracy between Page and Papadopoulos. The Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok.
This statement cuts against the Republican case. It confirms that the FBI began its investigation because of information related to Papadopoulos, who is now cooperating with special counsel Robert S. Mueller III, not because of the Steele dossier.
Strzok was reassigned by the Special Counsel's Office to FBI Human Resources for improper text messages with his mistress, FBI Attorney Lisa Page (no known relation to Carter Page), where they both demonstrated a clear bias against Trump and in favor of Clinton, whom Strzok had also investigated. The Strzok/Lisa Page texts also reflect extensive discussions about the investigation, orchestrating leaks to the media, and include a meeting with Deputy Director McCabe to discuss an "insurance" policy against President Trump's election.
The meaning of Peter Strzok's reference to an "insurance policy" has been hotly debated. Moreover, the existence of the text messages doesn't add evidence to the debate over the warrant, which might have been completely valid even if the agents didn't like Trump.
Additional credits: Kyle Kim and Chris Keller