Recommended by Ricochet Members Created with Sketch. Meanwhile, Back at the FISA Court…

 

The FISA Court just declassified an order Thursday relating to the FBI spying on the Trump campaign. Here is the order; here is a National Review article with a brief summary. This is a significant order addressing an important question not answered in the Horowitz Report. The order was entered on January 7, 2020.

The important, new information from this order is that the DOJ has concluded that the third and fourth FISA warrants obtained against Carter Page were wrongful. This means that the FBI conducted unlawful surveillance of the Trump campaign in violation of the Constitution.

If you need to get back up to speed about the Horowitz Report, see my post last month titled Executive Summary of the Executive Summary. To understand the significance of the current FISA Court order, a quick recap is in order.

The FBI opened a counterintelligence investigation of the Trump campaign at the very end of July 2016, and related investigations of several individuals shortly thereafter. The FBI and DOJ ultimately obtained four FISA warrants to conduct electronic surveillance on Carter Page, based on a set of reports commonly called the “Steele Dossier,” prepared by a former intelligence officer named Christopher Steele. The Steele Dossier was funded by the Democratic National Committee through several intermediaries.

The exact dates of the four Carter Page FISA warrants are redacted in the Horowitz report, but the initial warrant was in October 2016, and there were three renewals in January, April, and June 2017. The Horowitz Report concluded that there were “seven significant inaccuracies and omissions” in the original FISA application, and “10 additional significant errors in the three renewal applications.”

The Horowitz report did not reach a conclusion about whether these inaccuracies, errors, and omissions were material to the ultimate question — the existence of probable cause for the issuance of the FISA warrants against Page. Rather, the report stated: “We do not speculate whether or how having accurate and complete information might have influenced the decisions of senior Department leaders who supported the four FISA applications, or the court, if they had known all of the relevant information.”

The FISA Court order declassified today states (citations omitted):

Thanks in large part to the work of the Office of the Inspector General, U.S. Department of Justice, the Court has received notice of material misstatements and omissions in the applications filed by the government in the above-captioned dockets. DOJ assesses that with respect to the applications in Docket Numbers 17-375 and 17-679, “if not earlier, there was insufficient predication to establish probable cause to believe that [Carter] Page was acting as an agent of a foreign power.”

These docket numbers correspond to the third and fourth FISA warrants obtained against Page (also called the second and third renewal applications).

This means that, as to the last two of the four FISA warrants against Page, the inaccuracies, errors, and omissions identified in the Horowitz Report resulted in a violation of Page’s constitutional rights. Two warrants were wrongfully issued by the FISA Court, without probable cause, because the Court was misled by the FBI and the DOJ.

This is a very big deal. It establishes unlawful surveillance of the Trump campaign by the FBI and the DOJ.

Three final notes of clarification:

  1. The conclusion that there was no probable cause for the third and fourth FISA warrants against Page was reached by the DOJ, not by the FISA Court itself.
  2. The FISA Court order does not address the first two FISA warrants against Page. It appears that these are still under review.
  3. The conclusion regarding the absence of probable cause does not necessarily indicate individual wrongdoing on the part of the senior FBI or DOJ officials approving the applications, as the inaccuracies, errors, and omissions identified in the Horowitz Report may have been present in the documents that they were given for review.

Finally, there will be more to come. The FISA Court order sets a January 28, 2020, deadline for the DOJ to make a further written submission.

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There are 21 comments.

  1. WI Con Member
    WI Con Joined in the first year of Ricochet Ricochet Charter Member

    This seems to be some type of premptive CYA, like they can state how fair they were when they state the first two were on the up and up. 

    • #1
    • January 23, 2020, at 2:54 PM PST
    • 9 likes
  2. Hoyacon Member

    WI Con (View Comment):

    This seems to be some type of premptive CYA, like they can state how fair they were when they state the first two were on the up and up.

    I’m inrigued by the bifurcation as well. Wasn’t the Steele Dossier used to obtain the original warrant? This suggests to me that something beyond that may be thought necessary to invalidate. If so, troubling.

     

    • #2
    • January 23, 2020, at 2:58 PM PST
    • 9 likes
  3. DonG (skeptic) Coolidge

    Thanks for the update. My cynical take is that this justifies a second book by Comey.

    • #3
    • January 23, 2020, at 3:09 PM PST
    • 2 likes
  4. Jon1979 Lincoln

    WI Con (View Comment):

    This seems to be some type of premptive CYA, like they can state how fair they were when they state the first two were on the up and up.

    Judge Boasberg is also the same person who, as he was writing this up, was also naming David Kris as the attorney to supervise FBI reforms on FISA warrants. Kris being one of the ones who had been defending the FISA warrants on Page makes you wonder if he’s even willing to go as far as Boasberg’s actions here, and the judge himself doesn’t seem to be pedal-to-the-metal to root out the problems that led to the problems with the Page warrants.

    At the moment it seems more like acknowledgement of the undeniable due to the information from the Horowitz report on the problems with the warrants, but do as little as possible to rock the boat when it comes to any meaningful changes in how FISA warrants are obtained.

    • #4
    • January 23, 2020, at 3:18 PM PST
    • 9 likes
  5. Sweezle Member

    Yep, WI nailed it with CYA.

    • #5
    • January 23, 2020, at 3:21 PM PST
    • 1 like
  6. Dan Wilson Coolidge

    Too bad this can’t undo the damage the whole thing already caused.

    • #6
    • January 23, 2020, at 4:10 PM PST
    • 5 likes
  7. PHCheese Member

    Jerry what are the “ poisonous tree” implications?

    • #7
    • January 23, 2020, at 4:40 PM PST
    • 2 likes
  8. Jerry Giordano (Arizona Patrio… Member

    PHCheese (View Comment):

    Jerry what are the “ poisonous tree” implications?

    Sorry, I don’t know.

    I don’t do criminal defense work, so my knowledge in the area is almost entirely limited to a single law school class, over 20 years ago. My recollection is that the exclusionary rule does not apply when a search violated a third party’s rights, but only when the search violated the defendant’s rights. So, for example, if the police conducted an unlawful search of your house, and found evidence incriminating both of us, that evidence would be excluded in your trial but not excluded in mine.

    In addition, as a factual matter, I don’t know whether any evidence obtained from the Carter Page warrants was used in any of the subsequent prosecutions. I think that Flynn and Manafort were prosecuted, but my impression is that those prosecutions were not related to anything revealed by the surveillance of Page.

    • #8
    • January 23, 2020, at 5:34 PM PST
    • 4 likes
  9. DonG (skeptic) Coolidge

    Jerry Giordano (Arizona Patrio… (View Comment):
    In addition, as a factual matter, I don’t know whether any evidence obtained from the Carter Page warrants was used in any of the subsequent prosecutions. I think that Flynn and Manafort were prosecuted, but my impression is that those prosecutions were not related to anything revealed by the surveillance of Page.

    It is my recollection that none of the prosecutions were related to the Page warrants. But, the goal of the warrant was to spy on the campaign during the election. Not all acts of tyranny result in a prosecution.

    • #9
    • January 23, 2020, at 6:12 PM PST
    • 2 likes
  10. PHCheese Member

    Jerry Giordano (Arizona Patrio… (View Comment):

    PHCheese (View Comment):

    Jerry what are the “ poisonous tree” implications?

    Sorry, I don’t know.

    I don’t do criminal defense work, so my knowledge in the area is almost entirely limited to a single law school class, over 20 years ago. My recollection is that the exclusionary rule does not apply when a search violated a third party’s rights, but only when the search violated the defendant’s rights. So, for example, if the police conducted an unlawful search of your house, and found evidence incriminating both of us, that evidence would be excluded in your trial but not excluded in mine.

    In addition, as a factual matter, I don’t know whether any evidence obtained from the Carter Page warrants was used in any of the subsequent prosecutions. I think that Flynn and Manafort were prosecuted, but my impression is that those prosecutions were not related to anything revealed by the surveillance of Page.

    Thanks Jerry. This is getting interesting.

    • #10
    • January 23, 2020, at 6:22 PM PST
    • 1 like
  11. Gumby Mark (R-Meth Lab of Demo… Thatcher

    WI Con (View Comment):

    This seems to be some type of premptive CYA, like they can state how fair they were when they state the first two were on the up and up.

    I read this as an interim step. They have said the last two renewals were illegal and are continuing to review the initial and first renewal. I’ve read the entire IG Report and it is pretty clear that all of the FISA warrants were illegal. The IG Report concludes that the warrants would not have been sought, and not granted, without the use of the Steele Dossier and goes into great detail on the inaccuracies and the inability to verify anything beyond some basic dates (such as Page’s visit to Russia in July 2016).

    • #11
    • January 23, 2020, at 7:38 PM PST
    • 4 likes
  12. colleenb Member
    colleenb Joined in the first year of Ricochet Ricochet Charter Member

    It establishes unlawful surveillance of the Trump campaign AND PRESIDENCY by the FBI and DOJ. That is my small correction. The original FISA order was during the campaign but the other three were, I believe, all after Trump became President. (I am fudging only because the January 2017 order may have been before he was sworn in.) I agree this is a very big deal.

    • #12
    • January 24, 2020, at 11:54 AM PST
    • 5 likes
  13. Hoyacon Member

    Gumby Mark (R-Meth Lab of Demo… (View Comment):

    WI Con (View Comment):

    This seems to be some type of premptive CYA, like they can state how fair they were when they state the first two were on the up and up.

    I read this as an interim step. They have said the last two renewals were illegal and are continuing to review the initial and first renewal. I’ve read the entire IG Report and it is pretty clear that all of the FISA warrants were illegal. The IG Report concludes that the warrants would not have been sought, and not granted, without the use of the Steele Dossier and goes into great detail on the inaccuracies and the inability to verify anything beyond some basic dates (such as Page’s visit to Russia in July 2016).

    My concern is why the need for an interim step. 

     

    • #13
    • January 24, 2020, at 11:55 AM PST
    • Like
  14. colleenb Member
    colleenb Joined in the first year of Ricochet Ricochet Charter Member

    Oh and thanks for an excellent summary. You’re almost in Byron York/Mollie Hemingway/Margot Cleveland territory for keeping all this straight for us.

    • #14
    • January 24, 2020, at 11:55 AM PST
    • 2 likes
  15. MichaelKennedy Coolidge

    I have a solution. Repeal FISA. Fire the top 10% of the FBI and the top 30% of the CIA. Maybe 60% of the latter.

    • #15
    • January 24, 2020, at 12:03 PM PST
    • Like
  16. cdor Member
    cdor Joined in the first year of Ricochet Ricochet Charter Member

    When discussing the FISA warrant for surveillance against Carter Page, who was a very minor player of little or no public recognition, I always like to explain what this type of warrant enabled the FBI to do. I don’t have the exact language in gubmintspeak, but this is called a 2 hop surveillance warrant for all texts, emails, phone calls for Page himself, as well as everyone that contacted Page, AND, everyone that contacted everyone that contacted Page. The warrant goes back to all contacts for about six years. There is no question that the warrant on Page allowed direct surveillance of President Trump, even after he was inaugurated and before he announced his candidacy.

    • #16
    • January 24, 2020, at 12:43 PM PST
    • 2 likes
  17. ToryWarWriter Thatcher

    Actually the Democrat Kris has now that he is in the role really critical of the FBI’s handling. I almost think he might be upset that he was duped, into defending a raw deal.

    • #17
    • January 24, 2020, at 12:43 PM PST
    • Like
  18. cdor Member
    cdor Joined in the first year of Ricochet Ricochet Charter Member

    colleenb (View Comment):

    Oh and thanks for an excellent summary. You’re almost in Byron York/Mollie Hemingway/Margot Cleveland territory for keeping all this straight for us.

    Wow…heavy!

    • #18
    • January 24, 2020, at 12:47 PM PST
    • Like
  19. cdor Member
    cdor Joined in the first year of Ricochet Ricochet Charter Member

    MichaelKennedy (View Comment):

    I have a solution. Repeal FISA. Fire the top 10% of the FBI and the top 30% of the CIA. Maybe 60% of the latter.

    Yes. And might I add…move all the bureaucratic offices out of Washington D.C. and into the heartland of our country. The geographic centralization of administrative government is related to its amalgamation of power.

    • #19
    • January 24, 2020, at 12:51 PM PST
    • 1 like
  20. Jerry Giordano (Arizona Patrio… Member

    cdor (View Comment):

    When discussing the FISA warrant for surveillance against Carter Page, who was a very minor player of little or no public recognition, I always like to explain what this type of warrant enabled the FBI to do. I don’t have the exact language in gubmintspeak, but this is called a 2 hop surveillance warrant for all texts, emails, phone calls for Page himself, as well as everyone that contacted Page, AND, everyone that contacted everyone that contacted Page. The warrant goes back to all contacts for about six years. There is no question that the warrant on Page allowed direct surveillance of President Trump, even after he was inaugurated and before he announced his candidacy.

    Holy geometrically expanding unconstitutional searches, Batman!

    • #20
    • January 24, 2020, at 2:53 PM PST
    • 1 like
  21. Unsk Member

    “Jerry what are the “ poisonous tree” implications?”

    As I understand it under the “two hop” rule, any conversation surveilled under the FISA warrant with the first person identified by warrant allows the government to then surveil anyone that the identified person talked to and then to surveil anyone that the ( many) second person talks to. In the end hundreds if not thousands of people are thus surveilled which meant in the Trump situation almost the entire Trump campaign and staff.

    In the Flynn cased, from what I have read the government’s case was that Flynn should have known that some potential clients of his represented the Turkish government because CIA were surveilling them under the Page FISA warrant and knew who they were unlike Flynn himself. I don’t know which FISA warrant it was though. But hopefully in addition to Page FISA warrants 3 and 4, 1 and 2 will also soon be ruled illegal which would hopefully make a whole lot of crap that Comey, Brennan, Weisman and Mueller et al did “fruit of the poisonous tree”.

    • #21
    • January 24, 2020, at 5:53 PM PST
    • Like