The Horowitz Report: It Wasn’t A ‘Witch Hunt’ But It Wasn’t Pretty – Analysis
By Published by the Foreign Policy Research Institute
By George W. Croner*
(FPRI) — In what was probably the most anticipated report on intelligence activities since 9/11, Michael Horowitz, the Inspector General for the Department of Justice, issued a “redacted for public release” version of a Review of Four FISA Applications and the Other Aspects of the FBI’s Crossfire Hurricane Investigation (the “Horowitz Report” or the “Report”)[1] on December 9, 2019.
To end the suspense before offering a more detailed assessment of the Report, the gist of Horowitz’s findings is that, while certain significant failures occurred in the FBI’s handling of surveillance applications made under the Foreign Intelligence Surveillance Act (FISA), the FBI investigation (code name: Crossfire Hurricane) into possible links between Russia and the 2016 Trump presidential campaign was not tainted by any political biases that might have been held by senior FBI and Justice Department officials.
Take a moment to digest this ultimate finding because, if you have been exposed to any of Fox News’s political “reporting,” or the meandering diatribes delivered by Devin Nunes during the impeachment hearings of the House Intelligence Committee, or, more recently, the condemnations delivered by the President of the United States, you certainly could be excused for assuming that it had been irrevocably established that the 2016 Trump campaign was maliciously smeared by an aberrant coterie of senior FBI and DoJ officials seeking to prevent Donald Trump’s election by any means. According to this narrative, these “Deep State” partisans contrived to launch a specious counterintelligence investigation of the Trump Campaign, and then misused the processes of the Foreign Intelligence Surveillance Act to surveil former Trump campaign operative Carter Page as part of that “investigation.[2] The Horowitz Report has consigned the overarching theme of this narrative to the same dustbin holding the discredited hyperbole that has been employed by many to minimize the discomfitingly close connection between the 2016 Trump campaign and the irrefutable Russian effort to influence the 2016 election.
Sadly, in these partisan times the, at times, nuanced conclusions of the Justice Department’s Inspector General, like those previously furnished in the “Report On The Investigation Into Russian Interference In The 2016 Presidential Election” (“Mueller Report”) and the Intelligence Community’s “Assessing Russian Activities and Intentions in Recent U.S. Elections (UNCLAS)” (the “ICA”),[3] will not end the false narrative that is now a political shibboleth to those claiming that the “Deep State” sought to undermine the outcome of the 2016 presidential election. Donald Trump, Devin Nunes and their compatriots will not be silenced by Horowitz’s findings any more than by the Mueller Report or the findings of the nation’s own Intelligence Community. That said, there is a bemused irony in seeing William Barr emerge as the avatar of those still insisting that illegal “spying” was directed at the 2016 Trump campaign by U.S. intelligence officials.
To digress for a moment, this is the same William Barr who, when nominated in January 2019 by Trump to be Attorney General, was described by the American Civil Liberties Union as the “godfather of NSA’s bulk data collection program.”[4] In 1992, in his first stint as Attorney General under George H. W. Bush, Barr oversaw the creation of a massive warrantless surveillance effort conducted by the Drug Enforcement Administration that served as a precursor for the Stellar Wind collection program later authorized by George W. Bush following the 9/11 attacks.[5] In 2003, Barr lamented to the House Intelligence Committee that the congressional scheme found in FISA was “too restrictive and posed significant problems for counterterrorism efforts” due to the regrettable belief that “national security issues could be dealt with within the framework of our criminal justice system or pursuant to carefully-hedged, detailed procedures derived from that system.”[6] According to Barr, FISA erroneously purported “to supplant Presidential discretion with Congressionally crafted schemes whereby judges became the arbiter of nationally security decisions.”[7]
Given these previously expressed views, there is more than a whiff of political calculation in Barr’s rejection of his own inspector general’s conclusion that the FBI properly initiated its counterintelligence investigation into the Trump campaign’s links to Russia in July 2016. While the pugnaciously partisan Attorney General was quick to endorse the Report’s criticisms of the FISA surveillances approved by the Foreign Intelligence Surveillance Court (FISC) as part of that investigation (Barr called it “a clear abuse of the FISA process”), he rejected the inspector general’s conclusion that the FBI had an adequate “predicate” for the decision to launch the investigation into the Trump campaign in July 2016 (saying that the investigation was launched upon “the thinnest of suspicions that, in my view, were insufficient to justify the steps taken”).[8] Meanwhile, Barr’s hand-picked investigator, John Durham, also issued a statement on the day the Horowitz Report was released (December 9th) saying that his ongoing inquiry raises doubts about Horowitz’s conclusion that the FBI had an adequate basis for opening its probe into Trump campaign aides.[9] This ensures that Durham, a man with limited background in intelligence or counterintelligence matters, will continue to spend more taxpayer funds turning over more rocks in an effort to find anything that Barr can claim as support for Trump’s cries of “hoax” and “witch hunt.” Which leaves us with a hand-picked minion of the Attorney General continuing to roam the globe in an effort to find something, anything, that the Attorney General can use to undermine the findings of the 20-month investigation conducted by … wait for it … the inspector general of the Justice Department over which Barr currently presides.
To provide a framework for the discussion and analysis presented in the 434-page Report, and assess its conclusions, a chronology is helpful. Since this saga is perpetually unfolding, the chronology is, admittedly, detailed. You can access it here.
What Does the Inspector General’s Report Tell Us?
Crossfire Hurricane was a properly authorized counterintelligence investigation
A measured and impartial reading of this massive effort by the Justice Department’s inspector general supports several legitimate conclusions, but offers no substantiation for the embellished conspiracy theories espoused by Donald Trump and his confederates. There was an adequate and appropriate factual predicate for opening the Crossfire Hurricane investigation in July 2016. This was a momentous bureaucratic decision dictated by the unprecedented circumstance of a major global adversary initiating a detailed and coordinated effort to affect the outcome of the 2016 U.S. presidential election. At this point, no rational citizen should question the legitimacy of the conclusion that Russia sought to interfere in that election in an unprecedented way and on an unprecedented scale. Continued denial of this unassailable truth only advances the prospects of success when the Russians, and perhaps other U.S. adversaries, try it again in 2020.
Where the FBI has an authorized purpose and factual “predication” — that is, allegations, reports, facts or circumstances indicative of possible criminal activity or a national security threat, or the potential for acquiring information responsive to foreign intelligence requirements — it may initiate an investigation. It is important to note that the “predication” standard is not a legal mandate, but a prudential requirement imposed by FBI and Justice Department policy.[10] The investigative undertaking may be termed a “Preliminary Investigation” or a more extensive “Full Investigation;”[11] these being terms of art in the administrative patois of the FBI. The designation of the type of investigation dictates a series of regulatory criteria that, inter alia, govern various features of the investigation including the types of investigative methods that are permitted. Electronic surveillance and physical searches, for example, are authorized methods only in “Full Investigations.” Both Crossfire Hurricane and the already existing (in July 2016) counterintelligence investigation of Carter Page were initiated as Full Investigations.[12]
Factual information available to the FBI in the spring and summer of 2016 indicated that this unprecedented Russian effort to undermine the American electoral process included activities intended to assist the campaign of Donald Trump and damage the campaign of Hillary Clinton. At the same time, as detailed in Volume I of the Mueller Report, the FBI also became aware of a number of contacts between Russians and individuals identified as members of the Trump campaign, or contacts between Trump campaign operatives and those offering to broker contacts with Russians allegedly possessing information harmful to the Clinton campaign. It bears noting that, concurrently with these developments, the spadework that ultimately was analyzed and used in preparing the Intelligence Community Assessment delivered to President Trump in January 2017[13] was developing in a way that ultimately led the Intelligence Community (or, more specifically, the National Security Agency, Central Intelligence Agency, and the FBI) to conclude “‘with high confidence,’ that Vladimir Putin ordered an influence campaign aimed at the 2016 U.S. presidential election and that ‘we further assess Putin and the Russian government developed a clear preference for president-elect Trump.’”[14]
Faced with this novel threat posed by a sophisticated adversary, and having just received information from a friendly foreign government (FFG) reporting a conversation between an FFG official and Trump campaign advisor George Papadopoulos that the Trump campaign had “received some kind of a suggestion from Russia” that it [Russia] could assist the campaign by anonymously releasing derogatory information about presidential candidate Hillary Clinton, the FBI, on July 31, 2016, opened, as a “Full” investigation, a counterintelligence probe into links between the Trump Campaign and the Russian government.[15] Initially, the case number assigned internally by the FBI linked the investigation to possible violation of the Foreign Agents Registration Act (FARA).[16]
As the Horowitz Report cites, the then-director of the FBI’s Counterintelligence Division (E.W. Priestap) told the inspector general that “the combination of the FFG information and the FBI’s ongoing cyber intrusion investigation of the July 2016 hacks of the Democratic National Committee’s (DNC) emails created a counterintelligence concern that the FBI was “obligated” to investigate.”[17] Every senior FBI official involved in the decision was in agreement regarding the opening of the investigation because the information had been received from a trusted intelligence partner and concerned a “Russian connection to the Trump campaign.”[18] Notwithstanding the remonstrations of the Attorney General and his chosen consigliere, John Durham, the Report confirms that Crossfire Hurricane was properly opened as a Full Investigation by the FBI. As the DoJ inspector general concluded, the FBI’s exercise of discretion in opening the original counterintelligence investigation, and the corresponding individual investigations relating to Papadopoulos, Page, Manafort and Flynn, was in compliance with DoJ and FBI policies, and the Horowitz inquiry produced neither documentary nor testimonial evidence that political bias or improper motivation influenced the decisions to open any of these investigations.[19]
The FISA Applications Seeking Authority to Surveil Carter Page Were Marred By Significant Errors and Omissions
As a “Full” investigation, the FBI could use its entire panoply of investigative tools in pursuing Crossfire Hurricane. In September 2016, after receiving six of the reports prepared by Christopher Steele (comprising part of the now famous — or infamous — “Steele Dossier”) addressing matters related to Russian interference in the 2016 presidential election and the activities of Carter Page while in Moscow in July 2016, the FBI began internal preparations to obtain authority pursuant to FISA to conduct electronic surveillance of Carter Page, who is a U.S. citizen. As recounted in considerable detail in the Report,[20] the first of the FISA surveillance orders was obtained from the FISC in October 2016, with three renewals of that surveillance authority subsequently obtained in January, April and June 2017.
I have written previously expressing the view that there was adequate probable cause to support the Carter Page FISA orders.[21] I continue to adhere to the view that the information available to the FBI in October 2016 that included, inter alia, (1) Carter Page’s prior recruitment by, and activities with, Russian intelligence operatives; (2) statements by Russian intelligence agents describing Page’s willingness to “take[s] on everything” and his “enthusiasm” in assisting the Russians while noting his eagerness to earn “lots of money” from his Russian contacts; (3) Page’s three years spent residing in Moscow (2004-2007) where he served as an adviser on “key transactions” involving PAO Gazprom and RAO UES; (4) Page’s identification in the national press as an “out-and-out Putinite” with “a direct financial interest in ending American sanctions against [the Kremlin’s state-run gas company] Gazprom;” and (5) Page’s trip to Moscow in July 2016, all when coupled with the information about Carter Page in the Steele Dossier which, in my view, need not have been summarily discounted in October 2016 (or even today), collectively, were sufficient to furnish probable cause to support at least the initial FISC order authorizing the FISA surveillance of Carter Page who, it should be noted, was no longer affiliated with the Trump campaign when that October 2016 surveillance was authorized.
Probable cause, after all, “is a flexible standard that emphasizes common sense requiring a reasonable basis for conclusions based on articulable facts. The probable cause standard is considerably below “beyond a reasonable doubt,” but neither is it unsubstantiated speculation. As William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University College of Law, has described it, “It’s the probability of a possibility.”[22] As the Supreme Court has described it: “[P]robable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers. We weigh not individual layers but the ‘laminated total …’ In dealing with probable cause, … as the very name implies, we are dealing with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”[23] FISA specifically provides that, in determining whether or not probable cause exists, the FISC may consider “past activities of the target, as well as facts and circumstances relating to current or future activities of the target.”[24] Judged against the probable cause standard, I believe the known facts support the FISC’s approval of the surveillance of Carter Page, and the Horowitz Report does not state otherwise.
What the Report does reveal, however, is a multitude of serious failings connected to the FBI’s handling of the Page FISA applications that violated numerous administrative procedures in place at the FBI that exist specifically to insure that all factual statements in FISA applications are, in the words of the DoJ inspector general quoting those FBI procedures, “scrupulously accurate.”[25]
The Horowitz Report is not kind to the FBI; its painstaking examination of the internal handling of the Page FISA applications consumes over 180 pages of the Report and reveals 17 significant errors and omissions in the four FISA applications that were submitted to, and eventually approved by, the FISC. All of those errors and omissions relate to violations of DoJ and FBI procedures implemented to assure accuracy in FISA applications presented to the FISC, and all of them had the effect of making the information presented to the FISC in support of probable cause appear stronger than it actually was.
Principal among the measures instituted at the FBI to insure that factual presentations in FISA applications are scrupulously accurate are the “Woods Procedures.” Developed in 2001, the Woods Procedures focus on ensuring accuracy in three areas: (1) the specific factual information supporting probable cause, (2) the
existence and nature of any related criminal investigations or prosecutions involving the target of the FISA authorization, and (3) the existence and nature of any ongoing asset relationship between the FISA target and the FBI.[26] The Woods Procedures require FBI agents and supervisors to undertake specific steps before filing a FISA application that include determining whether the target is the subject of a past or current criminal investigation, negative or positive results in searching FBI databases on the target, and a review of the FISA application for factual accuracy. Implemented properly, the Woods Procedures will produce a file containing all the material that corroborates the factual statements made in the accompanying FISA application or, conversely, that diminishes the reliability of factual information contained in the application. FBI training materials specify that “everyone in the FISA process” may rely on the case agent’s signature on the Woods Form verifying that the factual assertions contained in the application are accurate.[27]
The Horowitz Report finds serious deficiencies in the manner in which the Woods Procedures were applied in the execution of the Carter Page FISA applications. That said, it bears noting these internal FBI procedures are not part of FISA, do not have the force of law, and do not necessarily dictate that the FISA applications approved by the FISC were, in fact, lacking in probable cause. Indeed, the inspector general specifically states:
We do not speculate as to whether or how this additional information [omitted from the FISA applications] might have influenced the decision of senior leaders [at DoJ and the FBI] who supported the applications, if they had known all of the information. … We also do not speculate as to whether the additional information would have influenced the court’s decision on probable cause at the time of the first application.[28]
Nonetheless, the absence of an adverse conclusion by the inspector general on the sufficiency of probable cause for any of the four Carter Page FISA applications should offer little consolation to the FBI which appears to have substantial compliance problems when it comes to FISA that extend to its now-documented failure to adhere to its own Woods Procedures with respect to the Carter Page FISA applications.[29] Equally disconcerting is the fact that, while the inspector general concludes that no documentary or testimonial evidence demonstrated intentional misconduct on the part of any FBI agent or supervisor, it was equally true that FBI personnel were unable to furnish the inspector general with satisfactory explanations for the multiple errors and omissions.[30] Clearly, a housecleaning of significant magnitude is needed to insure that the FBI’s handling of future FISA applications for surveillance authority are fully and properly vetted to provide the scrupulous accuracy that is ostensibly the applicable standard mandated by FBI procedures. Whether that housecleaning involves regulatory changes, personnel changes, or both – and whether it is left entirely to the FBI to accomplish – will be determined in the coming weeks and months.
Some (Initial) Reactions to the Horowitz Report
Based on his findings, the DoJ inspector general has recommended a broad series of reviews and corrective measures. Among those is the initiation of an audit to examine the FBI’s compliance with its “Woods Procedures” in FISA applications that target U.S. Persons in foreign intelligence and counterintelligence investigations. This is a worthy undertaking, and an informed reaction to the Horowitz Report should await the completion of the inspector general’s audit which will disclose whether the Carter Page FISA applications are truly outliers in an otherwise properly functioning FBI system of internal checks or, instead, manifest systemic issues producing errors and omissions that improperly infect the entire process. The latter result would obviously raise legitimate demands for more extensive corrective measures that reach beyond FBI headquarters and the Justice Department, perhaps, to Congress itself.
FISA critics may seize upon the Horowitz Report as demonstrating the need for Congress to either scrap, or massively overhaul, the existing FISA statutory scheme. Here, again, prudence requires a more measured approach. The problems revealed by the DoJ inspector general do not stem from any faulty feature or provision in the FISA statute itself; they reflect, instead, institutional failings of human actors in properly executing that statutory scheme. It bears remembering that the Supreme Court’s Keith decision[31] requires some form of judicial approval prior to the initiation of a search or surveillance in domestic national security matters. FISA was, and remains, the carefully crafted legislative response to that mandate for judicial participation, and the FISC continues to offer the wisest vehicle for its implementation. Indeed, a “pre-FISA” decision to surveil Carter Page would have been made exclusively by the executive branch pursuant to procedures developed and implemented solely by the executive branch. Little speculation is necessary to conclude that a decision to proceed with the surveillance of Carter Page under that exclusive executive branch regimen was guaranteed. The errors and omissions revealed by the inspector general’s investigation of these Carter Page FISA applications are not attributable to the FISC in any way — the court cannot consider and deliberate on facts it does not receive. To the extent critics of the FISC as an institution use the Horowitz Report in an effort to advance their institutional criticisms, such criticism is opportunistically misplaced.
Finally, it is important to maintain an appreciation for institutional competence as one reads the Horowitz Report. There are two avenues of inquiry implicated in assessing the decision to open the Crossfire Hurricane investigation and conduct the electronic surveillance of Carter Page. One avenue of inquiry examines the legality of the manner in which the investigation was commenced and conducted in terms of the FBI’s compliance with existing statutory and regulatory authorities; the second avenue of inquiry implicates the more esoteric and fluid issue of whether the FBI’s analysis and conclusions in undertaking Crossfire Hurricane were “right.”
The first of these inquiries is one for which the Department of Justice is eminently suited and, by all accounts, has been commendably conducted by the Department’s Inspector General. The second inquiry, however, is one of intelligence collection and analysis and is an area in which the Justice Department has “no experience, no knowledge of, no particular perspective to bring to bear on analysis and they’re likely to get the answer wrong because their standards of making a judgment are very, very, very different from the intelligence community standards.”[32] Forgetting this distinction is dangerous because it leads to myopically misguided, and perhaps politically influenced, decisions like bestowing upon the Attorney General, a law enforcement officer unversed in the nuances of intelligence-gathering and the protection of intelligence sources and methods, the unfettered discretion to declassify intelligence product in pursuit of finding a politically malleable explanation for the unprecedented events that led to the Crossfire Hurricane investigation in the first place.
The Horowitz Report is assuredly not the last word on all of this; but, if used properly, it can offer valuable insight and guidance to improving the FISA process in a way that preserves important considerations affecting both national security and civil liberties. The first shoe dropped on December 17th when, in an unprecedented public order containing language harshly critical of the FISA process used by the FBI in securing the court’s authorizations to surveil Carter Page, the FISC ordered the government (i.e., the Department of Justice will file the response which undoubtedly will be prepared in close coordination with the FBI) to submit a sworn written submission, no later than January 10, 2020, “of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects the information possessed by the FBI that is material to any issue presented by the application.”[33] The coming sworn submission and the court’s reaction to it will represent the opening sequence as the FBI attempts to repair its tarnished credibility with the FISC. Congress will be watching, and the future of FISA in its current form may depend on convincing Congress that the actions needed to restore confidence in the FISA process can be reliably accomplished by the combined efforts of the FISC and the executive branch.
*About the author: George W. Croner, a Senior Fellow in the Program on National Security at FPRI, previously served as principal litigation counsel in the Office of General Counsel at the National Security Agency. He is also a retired director and shareholder of the law firm of Kohn, Swift & Graf, P.C., where he remains Of Counsel, and is a member of the Association of Former Intelligence Officers.
Source: This article was published by FPRI
[1] Review of Four FISA Applications and the Other Aspects of the FBI’s Crossfire Hurricane Investigation, Department of Justice, December 9, 2019. Available at https://www.washingtonpost.com/context/read-the-inspector-general-s-report-on-the-trump-russia-investigation/f97e93ca-d5b4-4d8f-a37f-8b2cdfdcdc88/.
[2] I use “surveil” instead of “spy” which is the discredited descriptive previously chosen by the Attorney General. I explain why, as the Report concludes, the Attorney General’s description is misleadingly inaccurate in Lowering the ’Barr,’ the Attorney General’s Disappointing and Disrespectful Dissing of the U.S. Intelligence Community, FPRI E-Notes, April 15, 2019. Available at https://www.fpri.org/article/2019/04/lowering-the-barr-the-attorney-generals-disappointing-and-disrespectful-dissing-of-the-u-s-intelligence-community/.
It would seem that William Barr, whose recent actions as Attorney General have corroborated the unctuous support for Donald Trump reflected in his handling of the rollout of the Mueller Report and his unsolicited “memo” condemning Mueller’s “obstruction theory,” owes the Intelligence Community an apology. At least former FBI Director James Comey thinks so. In an op-ed published in the Washington Post on December 9, 2019, Comey states: “On Monday, we learned from a report by the Justice Department’s inspector general, Michael Horowitz, that the allegation of a criminal conspiracy was nonsense. There was no illegal wiretapping, there were no informants inserted into the campaign, there was no “spying” on the Trump campaign.” James Comey, The Truth is Finally Out. The FBI Fulfilled Its Mission. Washington Post, December 9, 2019. Available at https://www.washingtonpost.com/opinions/james-comey-the-truth-is-finally-out-the-fbi-fulfilled-its-mission/2019/12/09/614df00c-1aad-11ea-8d58-5ac3600967a1_story.html.
I won’t hold my breath waiting for the acknowledgement of error that Comey has demanded and, to be sure, Comey has precious little about which to crow given the FBI’s handling of the Carter Page FISA applications during his tenure as FBI Director. As expected, Barr has emphasized the demonstrated flaws in FBI procedures revealed by the Horowitz Report and expressed his expectation of more dirt from the “other” investigation he has authorized into Russian 2016 election meddling (presently being conducted by John Durham, the U.S. Attorney for Connecticut). If Durham comes up empty, Barr will no doubt highlight that there remain 190+ sovereign countries that might still be hiding the DNC server if it isn’t in Ukraine.
Meanwhile, Russian preparations for interference in the upcoming 2020 elections continue unabated with virtually no focused response from the White House or the Department of Justice.
[3] The ICA is available at https://www.dni.gov/files/documents/ICA_2017_01.pdf.
[4] Neena Singh Guliani and Brian Tashman, William Barr Helped Build America’s Surveillance State, ACLU’s Best Reads, January 9, 2019. Available at https://www.aclu.org/blog/national-security/privacy-and-surveillance/william-barr-helped-build-americas-surveillance.
[5] Id. See also Brad Heath, U.S. Secretly Tracked Billions of Calls for Decades, USA Today, April 7, 2015. Available at https://www.usatoday.com/story/news/2015/04/07/dea-bulk-telephone-surveillance-operation/70808616/.
[6] U.S. Congress, House Permanent Select Committee on Intelligence, Hearings on Securing Freedom and the Nation: Collecting Intelligence Under the Law, Constitutional and Public Policy Considerations, Testimony of William P. Barr, October 30, 2003. Available at https://fas.org/irp/congress/2003_hr/103003barr.pdf.
[7] Id.
[8] Josh Gerstein, Watchdog Report Rips FBI Handling of Russian Probe, Politico, December 9, 2019. Available at https://www.politico.com/news/2019/12/09/watchdog-report-rips-fbi-handling-of-russia-probe-078983. If Barr really believes that the launching of Crossfire Hurricane was based on “the thinnest of suspicions,” he really needs to reread the ICA and Volume I of the Mueller Report, particularly Part IV titled: “Russian Government Links to and Contacts with the Trump Campaign.”
[9] Id. However, the Washington Post subsequently has reported that Durham does not dispute that the facts available in July 2016 supported opening an investigation; but rather, that those predicate facts only supported a “Preliminary,” as opposed to a “Full,” Investigation. See Devlin Barrett, Matt Zapotosky, Karoun Demirjian, Inspector General Says the FBI is Not Vindicated by His Report on Trump Campaign Probe, The Washington Post, December 11, 2019. Available at https://www.washingtonpost.com/national-security/inspector-general-michael-horowitz-testimony/2019/12/11/b6632b6c-1ba1-11ea-8d58-5ac3600967a1_story.html.
If the Post’s reporting is accurate, it would appear that the disagreement between the Horowitz and Durham positions is less stark than might first have appeared, and rests on the esoteric delineations of FBI administrative procedures that do not have the effect of law. As discussed more fully later, the principal distinction between these two types of investigations lies in the scope of the investigative tools that can be employed by the investigators. I confess that, where the subject of the investigation is Russian interference in a U.S. presidential election, my personal preference is to endow the FBI with the broadest scope of investigative options available under the law. I also confess that this preference is predicated (no pun intended) on the view that those investigative tools will be utilized in full compliance with the law.
[10] Report at 19.
[11] A “Full Investigation” may be opened based on “an articulable factual basis” that “reasonably indicates” the existence of an activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity. Report at iii.
[12] Report at 19. As I noted earlier, the Washington Post has reported that there is disagreement between the inspector general and John Durham, Barr’s hand-picked investigator, over whether Crossfire Hurricane should initially have been opened as a Preliminary investigation or a Full investigation. See Note 9.
[13] Assessing Russian Activities and Intentions in Recent U.S. Elections (UNCLAS) (the “ICA”), January 6, 2017 at 1. Available at https://www.dni.gov/files/documents/ICA_2017_01.pdf.
[14] ICA at ii.
[15] The FFG official was relaying the details of a conversation had with George Papadopoulos that, in turn, related the details of the March 2016 conversation that Papadopoulos had had with Josef Mifsud, the mysterious London-based professor who first advised Papdopoulos of the Russian’s “suggestion” that they could aid the Trump campaign by anonymously releasing dirt on Hillary Clinton.
The Report also appropriately consigns to the growing scrap heap of discredited conspiracy theories the idea that Josef Mifsud was an FBI informant embarked on some sort of operation to entrap Papadopoulos – a scenario that Papadopoulos, who already had pled guilty on October 5, 2017 to making false statements to the FBI, tried to spin in congressional testimony given on October 25, 2018 Report at 51, n. 164.
[16] Report at 57. FARA is codified at 18 U.S.C. § 951.
[17] Report at iii.
[18] Report at 54.
[19] Report at iii.
[20] The Report devotes nearly 200 pages to dissecting the processes used and decisions made affecting the Carter Page FISA applications and the role of the Steele Dossier in those applications.
[21] See George Croner, Out‘Foxed’ – The Vulpine Network Keeps Swinging and Missing at the Carter Page FISA Applications, FPRI E-Notes, August 16, 2018. Available at https://www.fpri.org/article/2018/08/outfoxed-the-vulpine-network-keeps-swinging-and-missing-at-the-carter-page-fisa-applications/.
[22] Tom Batchelor, Donald Trump wiretapping claims: NSA director denies GCHQ was asked to spy on Trump Tower, Independent, March 20, 2017.
[23] Brinegar v. U.S., 338 U.S. 160, 176 (1948).
[24] 50 U.S.C. § 1805(b).
[25] Report at vii.
[26] Report at 42-43.
[27] Report at 44.
[28] Report at 368. Later in the Report, the inspector general reiterated: “As noted previously, we do not speculate whether the correction of any particular misstatement or omission, or some combination thereof, would have resulted in a different outcome.” Id. at 376.
[29] By way of example, another significant FISA compliance problem at the FBI was revealed in October 2019 when the Director of National Intelligence released a redacted version of a 138-page decision entered by the FISC in October 2018 where the FISC initially rejected the government’s certification for FISA Section 702 surveillance authority until the FBI instituted specific procedures to insure that: (1) FBI queries of the Section 702 database using U.S. Person identifiers were properly recorded (as required by the amendments to FISA enacted into law in January 2018); and (2) were demonstrated to be initiated to find and extract foreign intelligence information. In its opinion, the FISC found, inter alia, “the FBI’s querying and minimization procedures, as implemented, to be inconsistent with statutory minimization requirements and the requirements of the Fourth Amendment.” This is a failing of considerable magnitude considering that, combined, NSA, CIA, and the National Counterterrorism Center (NCTC) used U.S. Person identifiers to query the Section 702 database approximately 7500 times in 2017. The FBI conducted more than 3.1 million such queries in the same year. See Dustin Volz and Byron Tau, FBI’s Use of Surveillance Database Violates Americans’ Privacy Rights, Court Found, The Wall Street Journal, October 8, 2019. The redacted FISC opinion is available at https://www.intelligence.gov/assets/documents/702%20Documents/declassified/2018_Cert_FISC_Opin_18Oct18.pdf.
[30] Report at 377.
[31] U.S. v. U.S. District Court, 402 U.S. 297 (1972).
[32] The quoted language was offered by former CIA director Michael Morrell in an interview on CBS’s Face the Nation on October 20, 2019. Available at https://www.cbsnews.com/news/transcript-mike-morell-and-william-burns-on-face-the-nation-october-20-2019/.
[33] See Charlie Savage, Court Orders F.B.I. to Fix National Security Wiretaps After Damning Report, The New York Times, December 17, 2019.The FISC’s December 17, 2019 order is available at https://www.fisc.uscourts.gov/sites/default/files/MIsc%2019%2002%20191217.pdf.
