Prediction: Sessions will find FBI lied about Steele credibility to spy on Trump
On February 18, 2018, United States attorney general Jeff Sessions stated that the Department of Justice (DOJ) will investigate whether the process used by the Federal Bureau of Investigation (FBI) to obtain warrants under the Foreign Intelligence Surveillance Act (FISA) regarding allegations involving Russia and the Donald Trump presidential campaign was proper. The most notorious part of this process involved FISA Court surveillance and search warrants on part-time Trump campaign informal adviser Carter Page. The warrants were based on a dossier written by former British intelligence agent Christopher Steele.
Assuming that two memoranda from Republicans on two congressional committees are accurate, Sessions will find, at the very least, that the FBI and DOJ made a false statement to the FISA Court, likely knowingly, and failed to tell the FISA Court information that would have destroyed Steele's credibility before the FISA Court. On February 2, 2018, the House Permanent Select Committee on Intelligence released a memorandum discussing the use of FISA by the FBI and DOJ regarding President Trump. On February 6, 2018, the Senate Committee on the Judiciary released a less redacted version of its memorandum dated January 4, 2018 discussing the same topic.
The Senate memorandum is particularly revealing. It states that the FBI largely relied upon Steele's credibility in obtaining the FISA warrants, and it appears that, through misrepresentation and omissions, the FBI kept the FISA Court in the dark about Steele's lack of credibility. Few in the media have covered this in detail, with Byron York and Andrew C. McCarthy being notable exceptions.
The Senate memorandum states that the October 21, 2016 FISA application notes the existence of a news article dated September 26, 2016, which is presumably a Yahoo News article by Michael Isikoff entitled "U.S. Intel Officials Probe Ties Between Trump Adviser and Kremlin." The news article contained information that was also in the dossier. According to the Senate memorandum, Steele "had previously told the FBI he had not shared the information with the press," and the application to the FISA Court stated that the "FBI does not believe that [Steele] directly provided this information to the press." The Senate memorandum states: "The FBI repeatedly represented to the court that Mr. Steele told the FBI he did not have unauthorized contacts with the press about the dossier prior to October 2016."
The Senate memorandum then states that in January 2017, the FBI told the FISA Court that the FBI had suspended its relationship with Steele in October 2016 because Steele had disclosed information about his dossier to the press in October 2016 without authorization. According to the Senate memorandum, the FBI told the FISA Court that Steele did this because he was bothered by Comey's reopening, earlier in October 2016, of the investigation into Hillary Clinton's emails. The Senate memorandum states that the FBI repeated this explanation in the FISA warrant renewal applications in April and June of 2017.
The Senate memorandum explains that the problem with the FBI's statement to the FISA Court about Steele's motivation is that by April of 2017, evidence had emerged establishing that Steele had disclosed information about his dossier to the press before Comey reopened the Clinton investigation. This evidence included sworn court filings by Steele in civil litigation in England, which was reported at the time in the American press. Therefore, this evidence was probably known to the FBI before the April 2017 and June 2017 renewal applications, but the Senate memorandum does not definitively establish this fact. According to the Senate memorandum, despite this evidence, in the April 2017 and June 2017 FISA warrant renewal applications against Page, the FBI repeated the false explanation about Steele's motivation for talking to the press. Assuming that the FBI knew when it made these renewal applications that the explanation was false, which is highly likely, the FBI lied to the FISA Court.
In addition, the Senate memorandum explains that it appears that Steele lied to the FBI by telling the FBI he was not the source of the Yahoo News story in September 2016, and the FBI never told the FISA Court that Steele lied to the FBI.
Therefore, the FBI relied on Steele's credibility in making the FISA Court applications against Page. But when it became known that Steele's credibility was destroyed, the FBI hid this from the FISA Court and apparently lied to the FISA Court when trying to excuse Steele's leaking to the press. In so doing, the FBI obtained renewals of the warrant against Page in April and June of 2017.
Because of the failure of the dominant media to do their job, the public is largely unaware of these details. Hopefully, the FISA Court is not.
Allan J. Favish is an attorney in Los Angeles. His website is 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).