A controversial memo penned by Republicans on the House Intelligence Committee alleging  Foreign Intelligence Surveillance Act (FISA) abuses at the Department of Justice (DoJ) and the Federal Bureau of Investigation (FBI) has created quite a stir and more than a little confusion. According to the memo, the FBI obtained a warrant to surveil a former Trump foreign policy advisor primarily based on an opposition research dossier prepared by a former British spy and ultimately paid for by the Clinton campaign and Democrats. Further, the FBI purportedly failed to disclose the Dossier’s political origins and deceived the court about its reliability. And this, the memo argues, was a big problem that demonstrated an abuse of investigative power motivated by political bias against then-candidate Trump. Unsurprisingly, DoJ and the FBI, as well as Democrats and some Republicans see it differently.

What is the Dossier?

A compilation of memorandums prepared by Orbis Business Intelligence Limited (“Orbis”), a company run by former British intelligence officer Christopher Steele, on behalf of Fusion GPS (“Fusion”), “formed an essential part,” the memo said, of the Department of Justice (“DOJ”) application for an October 2016 FISA warrant on Carter Page.

 

What is a FISA Warrant?

The Nunes Memo: A Quick ReferenceThe FISA process was established in 1978 in responses to President Richard Nixon’s abuses of surveillance powers to spy on political enemies. In other words, the entire FISA process is designed to ensure that foreign intelligence surveillance cannot be abused to violate the Fourth Amendment rights of Americans. A principal concern of the FISC is to prevent exactly the kind of political abuse that is being alleged in the memo.

A FISA warrant is a special kind of warrant used for catching spies on American soil. In order to obtain a FISA warrant, the FBI and DOJ must present to a judge probable cause that a U.S. “person” is an “agent of a foreign power” who is “knowingly engag[ing]…in clandestine intelligence activities,” writes former FBI agent Asha Rangappa. A FISA warrant on a U.S. citizen must be renewed every 90 days. “[E]ach renewal requires a separate finding of probable cause,” according to the Nunes memo. In addition to the original Oct. 2016 warrant on Page, the FBI obtained three renewals. Each renewal was approved by the Deputy Assistant Attorney General (“DAG”) or Acting Deputy Attorney General.

Who are Fusion GPS and Christopher Steele?

Fusion retained Orbis, Steele’s research firm. in June 2016 “to prepare a series of confidential memoranda based on intelligence concerning Russian efforts to influence the US election process and links between Russia and Donald Trump,” according to court filings the company made in London. Orbis produced sixteen memoranda, with the last one produced in October 2016. After the engagement with Fusion ended, Steele produced a compilation memorandum that contained “raw intelligence” and has come to be known as the Steele Dossier. According to the memo, Steele was “was paid over $160,000 by the DNC and [the Hillary] Clinton campaign via the law firm Perkins Coie and [Fusion] . . .” for work that comprised the dossier.

The Nunes Memo: A Quick Reference

Steele, on or about July 4, 2016, briefed the FBI about his findings to date. Steele told Fusion that, at the time he briefed the FBI, the agency had “an internal Trump campaign source . . .” After Steele briefed the FBI, the agency attempted to verify the information contained in the Steele Dossier. Assistant FBI Director Bill Preistap, who heads the Bureau’s counterintelligence division, was quoted in the Nunes memo as saying that “corroboration of the Steele Dossier was in its ‘infancy’ at the time of the initial Page FISA application.”

Who is Carter Page?

The FBI had known for at least three years that Carter Page was close to the Russian government. In an Aug. 25, 2013 letter Page sent to an academic publisher, reported by Time, in which he stated: “Over the past half year, I have had the privilege to serve as an informal advisor to the staff of the Kremlin . . .” According to a CNN report, Page was also the subject of a [FISA] warrant in 2014. This followed a conversation between two Russian spies discussing efforts to recruit Page intercepted as part of an FBI investigation into a Russian spy ring in New York.

In March 2016, a year after the case was brought against the alleged Russian spies, Page was named a foreign policy advisor to then-candidate Donald Trump. Page made a July 2016 trip to Moscow where he acknowledged in Congressional testimony that he met with multiple Russian government officials.  Page had planned a return trip to Moscow in December 2016. The July 2016 trip by Page “was a catalyst for the F.B.I. investigation into connections between Russia and President Trump’s campaign.”   The FBI “received [the FISA] warrant to monitor Page’s communications after he [first] traveled to Russia . . .”

Who is George Papadopoulos?

According to court documents, on or about April 16, 2016 “an overseas professor” who “had substantial connections to Russian government officials” told George Papadopoulos, another Trump foreign policy advisor, “about the Russians possessing ‘dirt’ on then-candidate Hillary Clinton in the form of ‘thousands of emails’” Later that same month Papadopoulos told the Australian ambassador to the United Kingdom that the Russian government had “thousands of [hacked] mails that would embarrass” Clinton . . .” The ambassador passed that information to the FBI in May 2016. The “information [the FBI received about the Papadopoulos meeting with the Australian ambassador] triggered the opening of an FBI counterintelligence investigation in late July 2016. . .”  The October 2016 FISA warrant application on Page “also mentions information regarding . . . Papadopoulos . . .”

Did the FBI Hide the Dossier’s Political Origin?

In all of the Page warrant applications, the Nunes memo says, “material and relevant information was omitted” by the FBI and DOJ. Specifically, “[n]either the initial application in October 2016, nor any of the renewals, disclose or reference the role of DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts . . .” were disclosed.

Fusion was retained by two different clients to produce materials on Trump. The Washington Free Beacon was the first. and Perkins Coie a law firm representing the Democratic National Committee and Hillary Clinton’s campaign was the second. Steele briefed the FBI about portions of his dossier in July 2016. Glenn Simpson, the founder of Fusion GPS, testified before the House Select Committee on Intelligence that, at the time that he met with the FBI, it is likely Steele did not know the identity of the client. It is not unusual for a research firm to maintain the anonymity of its clients.

But, it later emerged that it was not omitted after all. A footnote was included that obliquely disclosed the political origins of the dossier. Rep. Nunes acknowledge this when asked in a recent media appearance, but complained that it was not easily visible or sufficiently clear.

Who is Peter Strzok?

According to the memo, FBI Agent Peter Strozk “trigged” the July 2016 investigation into possible connections between the Trump campaign and Russia. Strozk later worked for the office of Special Counsel Robert Mueller, and “was reassigned by the Special Counsel’s office for improper text messages” which, the Nunes memo alleges, “demonstrated a clear bias against Trump and in favor of [Hillary] Clinton, who Strozk had also investigated.”

The Intelligence Community Inspector General made a referral to the FBI in connection with Secretary of State Hillary Clinton’s use of a personal e-mail server focusing on whether classified information was transmitted on that personal system.

FBI Director James Comey announced in July 2016 that while the agency had no “clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

Comey sent a letter to Congress less than two weeks before the 2016 election that the FBI was re-opening its investigation into Clinton’s personal e-mail server. Strozk was the primary author of the October 2016 letter that Comey sent to Congress. Clinton subsequently claimed the Comey letter, combined with other events, was the primary factor behind her loss to Trump.

SOURCES

Alekse J. Buraov, Websillza B.V., Webzilla Limited, XBT Holdings S.A. and Orbis Business Limited and Christopher Steele, “Defence,” High Ct, of Queens Bench Division (U.K), HQ17D00413, at 2., Apr. 3, 2017. [Hereinafter “Defence”].

Memorandum from House Permanent Select Committee on Intelligence staff to Majority Members, Subject: Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation, Jan. 18, 2018. [Hereinafter “Nunes Memo”].

Asha Rangappa, “It Isn’t Easy Getting a FISA Warrant: I was an FBI Agent and Should Know,” Just Security, Mar. 7, 2017, https://www.justsecurity.org/38422/aint-easy-fisa-warrant-fbi-agent/ (last accessed Feb. 4, 2018).

50 U.S.C. §1805(d)(1).

Transcript of Interview with Glenn Simpson before House Permanent Select Committee on Intelligence, Nov. 14, 2017. [Hereinafter “HPSCI Transcript”]; Transcript of Interview with Glenn Simpson before the Senate Judiciary Committee, Aug. 22, 2017. [Herein after “Senate Transcript”].

See: Massimo Calabresi, Alana Abramson, “Carter Page Touted Kremlin Contacts in 2013 Letter,” Time, http://time.com/5132126/carter-page-russia-2013-letter/ (last accessed Feb. 4, 2018); Nicholas Fandos, Adam Goldman, Charlie Savage, “G.O.P. Memo Leads to Fresh Jousting on Russia Inquiry,” New York Times, Feb. 3, 2018; Michelle Goldberg, “Don’t Believe The Liberal F.B.I.,” New York Times, Feb. 4, 2018.

See: Nicholas Fandos, Adam Goldman, Charlie Savage, “G.O.P. Memo Leads to Fresh Jousting on Russia Inquiry,” New York Times, Feb. 3, 2018; Michelle Goldberg, “Don’t Believe The Liberal F.B.I.,” New York Times, Feb. 4, 2018.

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