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More On The Carter Page FISA Warrant And The Need For A Second Special Counsel

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My Washington Post column earlier this elicited some comments from a Bureau veteran of more than 2 decades, one with extensive FISA experience:

1. If Carter Page cooperated in 2013-14 in the investigation when Russian intelligence tried to recruit him, that means he had a “handler” in Counter-Intelligence — an agent who worked with him in 2013-14 because he cooperated and the Russians were prosecuted. The first thing that would have normally happen when Page turned up in the Trump dossier — when known to have previously been a cooperator– would have been to have his handler arrange to meet with him to talk. He’d cooperated before, and the first reaction to the new information would be that he would cooperate again. It would NOT have been to begin working up a FISA application on him. Page has denied that the FBI ever approached him in the summer of 2016.

2. In a FISA warrant on a US citizen, you NEVER rely on information that can’t be verified. If it can’t be verified, its taken out of the application. Agents fight to keep stuff in, even when thinly sourced, but the lawyers at FBI and DOJ are constantly removing stuff that they think isn’t adequately sourced. The fact that Steele was a former MI6 agent is nice, but its not a substitute for being able to verify the sources that gave Steele the information. Doing a FISA on a US Citizen, based on the premise that he’s engaged in espionage, is a HUGE step, and its not done on thin sourcing. The fact that Steele was retired, and working for pay — as opposed to being active and working only on behalf of his government — works against Steele’s credibility. He’s being paid to produce shaded information, not necessarily “truthful” information — which would be the presumption if he was still an active MI6 agent. So it normally would have been required for him to identify his sources — not keep them confidential. If he was an active MI6 agent, then you would respect his need to keep his sources confidential for future work. But he’s not acting on behalf of the British government, so that deference no longer applies. His information would not be accepted simply on his say-so. He’s selling his services, and wants to get paid, so he has a motivation to provide what his patron is looking for.

3. The Grassley memo says that the FISA renewal in January 2017 states the FBI disclosed that Steele was terminated as a Source in “October, 2016”, without specifying the date. The date exists — there is a “Source Termination” document in his file, and it has a date on it. If he was terminated BEFORE the FISA application was submitted on October 21, 2016, that is a massive red flag problem — the kind that gets people fired, and maybe prosecuted. If the FISA application went forward with information from Steele AFTER the date Steele was terminated as a source, that’s a violation of Bureau policy that would result in termination. The fact that the date is omitted in Grassley’s memo — as if it wasn’t in the underlying document Grassley or his staff read — is a noteworthy omission because that date was known when the January 2017 renewal disclosed the termination to the FISC, and its omission is almost certainly not accidental. This is the same kind of purposeful omission as the failure to specify that the Clinton campaign and the DNC paid for Steele’s work.

4. Whenever a key source in a FISA Application is terminated for misconduct, you do NOT wait for the next renewal to inform the FISC of the development. Policy is to file a disclosure of the change in circumstances with the Judge who issued the warrant, and leave it to the Judge to determine whether the new information requires rescinding the warrant. Only the Judge knows whether the information from that particular Source was crucial in the Judge’s determination that the application made a sufficient showing to justify issuance of the warrant. It was shocking to see that the termination of Steele was only disclosed to the FISC at the time of the first renewal approximately 3 months after Steele was terminated.

5. Whenever a FISA source is terminated for misconduct, that source’s information cannot be relied upon in the renewals. Normally the renewal is justified based on intelligence that is gathered during the first 90 days. Its normally not necessary to rely on the original source as justification to renew the FISA warrant UNLESS your surveillance is NOT turning up information about the target’s foreign entanglements. You only rely on the original PC if your surveillance is not providing you new PC information. But you would NEVER be allowed to rely on a terminated source’s information to continue PC when the surveillance is not providing sufficient new PC. So it makes no sense — as stated in Grassley’s memo — for the Bureau to continue to rely on Steele’s dossier information as PC in the 90, 180, or 270 day renewals. If there is new PC generated by the surveillance, then there is no need to use the terminated source. If there is no new PC from the surveillance, its a violation of policy to rely on the information from the terminated source as a substitute. The fact that the Bureau continued to present the Steele information in the renewals SUGGESTS — though is not necessarily conclusive — that there was insufficient intelligence coming out of the surveillance to provide new PC to continue the surveillance.

6. The idea that a Yahoo News article could be cited in a FISA application as “verification” of a source’s information is “Laugh Out Loud” funny. If such a claim was made in a regular FISA application, the first line of legal review would call and ask if that was included as a joke. The story in question cites anonymous sources. So you have Steele quoting anonymous sources, and Isikoff citing anonymous sources. The idea that they constitute verification of each other when the Bureau has no idea who they are or why they would know what they told Steele/Isikoff is simply “Through the Looking Glass” stuff. The fact that something like that survived FISA review confirms that the FISA process was corrupted. Its just beyond the pale — its that ridiculous.

7. When it became known that the info in the September 23, 2016 Yahoo News article matched pretty much exactly the information provided by Steele to the Bureau, and Steele denied having any contact with the press on the subject of his work, that would normally have led to a decision that Steele be polygraphed to see if he was being deceptive in his denial. If he had been polygraphed and passed, that would have been disclosed as the basis for believing his denial. The fact that he wasn’t polygraphed is a big tell that the “fix” was in — they feared he would fail. The idea that an Agent would write in the application — as Grassley’s memo says — ” The FBI does not believe [Steele] directly provided this information to the press”, relying only on Steele’s denial of having done so — MI6 or not — is laughable. Again, it goes back to the gravity of seeking a FISA warrant on a US citizen.

As you can see, veterans of the FISA process have collective eyebrows raised, and both this Bureau veteran and the retired federal judge quoted in my column have much more recent FISA experience than mine from the Reagan-era DOJ.  It doesn’t seem likely to me that AG Sessions can avoid appointing a second special counsel, one wholly independent of the investigation underway by SC Mueller (which, to repeat, should continue without interference.)

As Secretary Clinton told me in our conversation last year, “you can keep two thoughts in your mind at the same time.” Thought one: The Russians attacked our election –they hacked John Podesta’s and the DNC’s emails, played havoc with social media etc– and everything about that attack needs complete investigation.  Thought two: There is at least the appearance of impropriety regarding the treatment of the server investigation and in the obtaining of the Carter Page FISA warrant.  A special counsel was needed for the investigation into the first issue.  A special counsel is also needed for the investigation into the latter.

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