On December 9, 2019, the United States Department of Justice released a PDF version of its report by Inspector General Michael Horowitz on the Foreign Intelligence Surveillance Act warrant applications against Carter Page, who had been a foreign policy adviser to then-presidential candidate Donald Trump.  The IG Report contains several curiosities that deserve further explanation.  Some background information is necessary to understand these curiosities.

You will see that

1) the FBI and DOJ appear to have deliberately and knowingly failed to monitor a British court case in which they knew that former British intelligence agent Christopher Steele, a defendant in the case, would be making statements regarding his so-called “dossier” that could affect the accuracy of the warrant applications,

2) the FBI and DOJ failed to tell the FISA Court in their June 2017 warrant application that Steele had admitted in the British court case that part of his “dossier” was unverified,

3) in a letter purporting to tell the FISA Court about material omissions from the warrant applications, the DOJ failed to tell the FISA Court about the omission from the June 2017 warrant application of Steele’s admission that part of his “dossier” was unverified,

4) the IG failed to tell the public about Steele’s admission that part of his “dossier” was unverified, and

5) the IG failed to tell the public about the DOJ’s failure in its letter to the FISA Court, to report the omission of Steele’s admission about part of his “dossier” being unverified.

The June 2017 warrant application begins on PDF page 292 of this file, with the title “VERIFIED APPLICATION.”

Steele’s “dossier” was published by Buzzfeed in January 2017.  The “dossier” is a 35-page collection of separate “Company Intelligence Reports” which are dated at the end of each Report.  On pages 34-35 of the “dossier” is the last Report, dated “13 December 2016.”

On October 4, 2017, Senator Charles Grassley (R-IA), then chairman of the United States Senate Committee on the Judiciary, sent a letter to FBI Director Christopher Wray, with a copy to Senator Diane Feinstein (D-CA), enclosing two documents from Steele that he filed in a British court case involving the “dossier.”  PDF page 4 of the letter and attachments is the initial page of an April 2017 document entitled “Defence,” which is like an Answer that is filed in American courts in response to a Complaint.  PDF page 11 is the initial page of a May 2017 document entitled “Defendants’ Response to Claimants’ Request for Further Information Pursuant to CPR Part 18.”  This document is like the responses to written questions, called interrogatories, that parties can serve on each other in American courts.  On PDF page 17 of this document Steele states that the “13 December 2016” portion of his “dossier,” which he calls the “December memorandum,” was “unverified.”  On PDF page 18 of this document Steele states that he shared some of his information with the press in September 2016.

In my August 11, 2018 article at AT entitled Declassified: Did Rosenstein Make False Statements to the FISA Judge?, I explained that former Deputy United States Attorney General Rod Rosenstein approved the June 2017 warrant application to continue spying on Page.  This application was the third renewal of the application that was first granted in October 2016.  Also, Rosenstein and the others who approved the application, which was based on Steele’s “dossier,” failed to tell the FISA Court what Steele admitted about his “dossier” a few weeks earlier in the British court case.

Steele’s responses to the requests for information in the British court case were relevant to the warrant applications for at least two reasons.  First, as set forth at PDF pages 39, 141-144, and 278-280 of the IG Report, Steele stated in those answers that he disclosed some of his information with the press in September 2016, which was the opposite of what Rosenstein and others stated in the June 2017 warrant application.  Moreover, although Steele was not under any instruction from the FBI to refrain from disclosing his information to the press in September 2016, the FBI said that Steele told them he did not disclose his information to the press in September 2016.

Although Steele disclosed his information to the press in September and October of 2016, Rosenstein and others led the FISA Court to believe Steele only disclosed in October.  Rosenstein and others falsely told the FISA Court that Steele only disclosed to the press in October 2016 because Steele became frustrated at the reopening of the Hillary Clinton email investigation.  The FISA Court was likely left with the impression that Steele only disclosed to the press because Steele was frustrated at the reopening of the Hillary email investigation, and Steele had no other motivation for disclosing to the press.  This was a false impression because Steele’s frustration over the reopening of the Hillary investigation in October 2016 could not account for Steele’s disclosure to the press in September 2016. 

The FISA Court was not given any indication that Steele’s credibility was in serious doubt because of Steele’s September 2016 disclosure to the press and his lying about it to the FBI.  This deception was significant because it was important for the FBI and DOJ to have the FISA Court view Steele as being credible.  On PDF page 296 the IG Report states: “NSD [DOJ National Security Division] told us that in the absence of information corroborating the facts from Steele’s reporting asserted in the Carter Page FISA application, it was particularly important for the application to articulate to the court the FBl’s assessment of the reliability of the source.”

The second reason why Steele’s responses to the requests for information in the British court case were relevant to the FISA warrant applications was that Steele stated in his responses that at least a portion of his “dossier” was unverified.  It is likely that the FBI and the DOJ had a copy of Steele’s British litigation responses before the June 2017 warrant application was submitted.  It would be difficult to believe that the FBI and DOJ were not monitoring the lawsuit against Steele.  If for no other reason, failure to monitor the lawsuit would have been a dereliction of duty by the FBI and DOJ, given that the Steele dossier was used in the three previous warrant applications and was being used again in the fourth warrant application for a warrant that would allow surveillance for another 90 days.

The FBI and DOJ had a duty to monitor the British lawsuit to see if anything developed that would impact the representations the FBI and DOJ were making to the FISA Court.  This is precisely what happened in May 2017 when Steele responded to the questions in the British litigation.  Yet there is nothing in the June 2017 warrant application indicating that Rosenstein and others informed the FISA Court about Steele’s responses.  It is unlikely that a disclosure about Steele’s responses was redacted in the publicly released version of the June 2017 warrant application because there would be no legitimate reason to redact it given that Steele’s responses were public information.

Unknown to the public in August 2018 when my previous article was published, was whether the FBI and DOJ knew about Steele’s British court responses before the June 2017 warrant application was filed.  The IG Report has provided new information about when the FBI and DOJ learned about Steele’s responses in the British court case.  However, the IG Report discusses the FBI’s failure to monitor the British litigation only in the context of discussing Steele’s September 2016 disclosure to the press.  The IG Report does not discuss the failure to monitor the British litigation in the context of discussing Steele’s May 2017 admission that at least a portion of his “dossier” was unverified, an admission that was not reported to the FISA Court in the June 2017 FISA warrant application, thereby constituting another element of deception in that application.

The IG Report explains at PDF page 279 that the FBI learned about Steele’s September 2016 disclosure to the press from Steele’s “Defence,” or Answer, in the British court case:

Media reporting in late April 2017 described statements Steele made in a court filing (pertinent to a lawsuit filed against him and others in a foreign court) concerning his interactions with the media.  Specifically, one article excerpted a sworn statement dated April 3, 2017 [the “Defence”], in which Steele admitted that he gave “off-the record briefings to a small number of journalists about the pre-election memoranda in late summer/autumn 2016.”  Emails reflect that on April 26, 2017, [FBI Agent Peter] Strzok circulated this article to the Intel Section Chief and the Unit Chief assigned to take over the Crossfire Hurricane investigation in April 2017 (Unit Chief 1).

Therefore, we know that by at least April 26, 2017, the FBI and DOJ knew that Steele was a defendant in the British court case.  The IG Report tells us more at PDF page 279:

Other documentation indicates that the foreign lawsuit against Steele was discussed during a meeting with then Director James Comey on May 1, 2017.  The OGC [FBI Office of General Counsel] Unit Chief took handwritten notes during the meeting, which stated “did not change our assessment, no need to update FISA” below references to the lawsuit.  The OGC Unit Chief told us that she did not recall this discussion or who concluded that the FISC did not need to be updated with information from the foreign litigation.  She also said that she did not recall specifically discussing or knowing prior to January 2018 that Steele admitted to talking to the media in these court filings and therefore she did not believe that the FBI advised of this information at the time of the Carter Page FISA applications.  Comey told the OIG that he did not recall being advised of the court filings.

The IG Report states in a footnote on PDF page 279: “The OGC Unit Chief’s notes of the meeting do not reflect who else attended the meeting, but she told us that this meeting with the Director would have included a large group of FBI officials.”  It would be nice to know the names of these FBI officials because along with Comey; we do not have any evidence that any of them sought to monitor the British litigation for statements that Steele may make that could affect the truthfulness of the warrant applications.  Once the FBI and DOJ knew that Steele was a defendant in the British court case, they knew he would be answering questions, both written and oral, as is common in court cases in Great Britain, as it is in America.  Steele provided written answers in May 2017 a few weeks after Comey and others were briefed about the British litigation on May 1, 2017.

PDF pages 279-280 of the IG Report state that

…although there had been open source reporting in May 2017 about Steele’s statements in the foreign litigation, the FBI did not obtain Steele’s court filings until the receipt of Senators Grassley and Graham’s January 2018 letter to DAG Rosenstein and FBI Director Christopher Wray with the filings enclosed.  We found no evidence that the FBI made any attempts in May or June 2017 to obtain the filings to assist a determination of whether to change the FBI’s assessment concerning the September 23 news article in the final renewal application.  However, the OGC Unit Chief’s notes suggest that on May 1, without consulting, and relying only upon open source reporting concerning the filings, the FBI decided that Steele’s April 3, 2017 sworn statement in the foreign litigation did not warrant any changes to Renewal Application No. 3.

The IG Report is mistaken about when the FBI obtained Steele’s British court filings.  The FBI received Steele’s May 2017 responses to questions in the British litigation as enclosers with Senator Grassley’s October 4, 2017 letter to FBI Director Wray.  The IG Report continues on PDF page 280:

We were unable to determine whether FBI personnel responsible for assisting OI [FBI National Security Division Office of Intelligence] on Renewal Application No. 3 were told about Steele’s admissions in the foreign litigation regarding his media contacts.  Case Agent 6 and the OGC Attorney told us that they did not recall whether they were aware of Steele’s admissions in the foreign litigation before the final renewal application was filed.  We are not aware of any other evidence on this point.  The Supervisory Intelligence Analyst (Supervisory Intel Analyst) told us that although he was aware at the time, he did not recall making a connection between the open source reporting about Steele’s court filings and the information in the FISA application concerning Steele’s media contacts.  He told us that if he had made such a connection, he would have made sure Case Agent 6 and the OGC Attorney were advised.

Again, the IG Report does not discuss the FBI’s and DOJ’s failure to monitor the British litigation in the context of discussing Steele’s admission that at least a portion of his “dossier” was unverified.  Had the FBI and DOJ monitored the litigation, of which they were well aware, then they would have seen Steele’s admission about the lack of verification for at least a portion of his “dossier,” and could have given this information to the FISA Court when making the June 2017 warrant application.  If the FISA Court had been told that Steele admitted that a portion of his “dossier” was unverified, this would have cast doubt on the rest of the “dossier,” and likely resulted in a denial of the warrant application.  But of course, based on everything else revealed in the IG Report, we know it is a virtual certainty that the FBI and DOJ would not have given this information to the FISA Court in June 2017 even if they knew about it.  We still do not know for certain whether the FBI or DOJ had a copy of Steele’s May 2017 responses in the British litigation before applying for the June 2017 warrant renewal.

It is not only the IG Report that ignores Steele’s admission in May 2017 that at least a portion of his “dossier” was unverified.  The IG Report discusses a letter that the DOJ sent to the FISA Court in 2018 offering some corrections to the previous warrant applications.  On PDF page 74 the IG Report states:

[U]nder Rule 13(a) of the FISC [Foreign Intelligence Surveillance Court] Rules of Procedure, if the government subsequently identifies a misstatement or omission of material fact in an application or other document submitted to the FISC, the government, in writing, must immediately inform the judge to whom the submission was made of the following: (1) the misstatement or omission, (2) any necessary correction, (3) the facts and circumstances of the misstatement or omission, (4) any modifications the government has made or proposes to make to how it will implement any authority or approval granted by the FISC, and (5) the government’s proposal for disposal of or treatment of any information obtained as a result of the misstatement or omission.

On PDF pages 270-271 the IG Report states that on July 12, 2018, “the NSD Assistant Attorney General submitted a letter to FISA Court Presiding Judge Rosemary Collyer under Rule 13(a), advising the court of certain factual omissions in the Carter Page FISA applications.”  The IG Report does not include a copy of the letter, but on PDF pages 270-280 of the IG Report, there is a discussion of the factual omissions from the warrant applications which were identified in the letter.  Based on the IG’s discussion, the Rule 13 letter did not inform the FISA Court that omitted from the June 2017 warrant application, was Steele’s May 2017 admission in the British litigation that at least a portion of his “dossier” was unverified.  On PDF pages 280-307 of the IG Report, is a section entitled “Other Inaccurate, Incomplete, or Undocumented Information in the Three FISA Renewal Applications,” that discusses information that should have been in the Rule 13 letter but was not.  Neither in this section of the IG Report, nor anywhere else, does the IG discuss the DOJ’s failure to tell the FISA Court in the Rule 13 letter that omitted from the June 2017 warrant application was Steele’s admission in the British court case that at least a portion of his “dossier” was unverified.

Therefore, the June 2017 warrant application fails to tell the FISA Court about Steele’s admission that at least part of his “dossier” was unverified, the DOJ’s Rule 13 letter over a year later, purporting to inform the court of material omissions in the FISA warrant applications, fails to include Steele’s admission, and the IG Report fails to inform the public about

1) Steele’s admission being absent from the June 2017 warrant application, and

2) the failure of the DOJ in its Rule 13 letter to inform the FISA Court about Steele’s admission being absent from the June 2017 warrant application.

The NSD Assistant Attorney General who submitted the Rule 13 letter to the FISA Court is John Demers, who rose to that position during the Trump Administration, and who still holds the position.   

Allan J. Favish is an attorney in Los Angeles.  His website is www.allanfavish.com.  James Fernald and Mr. Favish have co-authored a book about what might happen if the government ran Disneyland, entitled "Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).