David Kris is a founder of Culper Partners consulting firm and the former assistant attorney general for national security.
The Justice Department on Saturday released the documents in the Carter Page saga used in its application in 2016 for permission from a federal court to wiretap Carter Page, a former foreign policy adviser to Donald Trump’s presidential campaign whose ties to Russia had sparked the interest of national security officials.
Over two days following the documents’ release in response to Freedom of Information Act requests, President Trump fired off a series of tweets. He claimed that the Justice Department and FBI had misled the Foreign Intelligence Surveillance Court about the potential bias of Christopher Steele, the former British MI6 officer who was a source of information included in the application. The president also said the wiretaps were politically motivated, and he quoted Andrew McCarthy, a former federal prosecutor appearing on Fox News, arguing that we “should be looking at the judges who signed off on this stuff, not just the people who gave it.”
Trump’s ultimate point, in capital letters and an exclamation mark, is that the surveillance was illegal; it’s part of that “Witch Hunt!”
What to make of all this? The first contention, that the government’s wiretap application misled the court about Steele, is demonstrably false. The documents, even with their many redactions, show unequivocally that the FBI properly advised the surveillance court about Steele’s potential hostility toward the Trump campaign — an unmissable page-long footnote describes how the person who hired Steele to conduct research “was likely looking for information that could be used to discredit [Trump’s] campaign.”
The president’s complaint that the wiretap application was politically motivated was also misplaced. Although the wiretap was initiated during the Obama administration, it was renewed repeatedly and signed by Trump’s own team at Justice, including Dana Boente, who is now the FBI’s general counsel. All four judges who approved them were Republican appointees, nominated by presidents Ronald Reagan, George H.W. Bush and George W. Bush, although the conclusion would be the same even if they had been appointed by Democratic presidents. The insinuation that “looking at the judges who signed off on this stuff” would reveal a hidden political agenda is laughable but also unsettling. Reflexively impugning the motives of legal decision-makers, without evidence, is corrosive to the rule of law.
That brings us to the final point, about the legality of the surveillance. Did the judges get it right? The central challenge in answering this question is that, as the president put it, the wiretap applications are “ridiculously heavily redacted” to protect sources and methods. The redactions mean we don’t know all the evidence the government presented about Page and his possible dealings with Russians who may have been trying to influence the 2016 election. But there are a few things that can be said.
First, the Foreign Intelligence Surveillance Act requires only “probable cause” that the surveillance target is an “agent of a foreign power.” Probable cause, the Supreme Court has explained, requires only a “fair probability” that the asserted facts are true. It’s not a trivial standard, but it’s nothing like “proof beyond a reasonable doubt or by a preponderance of the evidence.”
Second, despite significant redactions, the affidavits of probable cause for Page show extensive contact between him and Russians who might be of interest to U.S. counterintelligence. Page, who lived in Russia roughly from 2004 to 2007, traveled to Russia in July 2016, according to the documents, and met with two Russian officials, including Igor Sechin, the former deputy prime minister of Russia and “a close associate to Russian President Putin,” and Igor Divyekin, a former Russian security official and aide to Putin. Page “has established relationships with Russian Government officials, including Russian intelligence officers,” the surveillance application said.
In an interview with CNN’s Jake Tapper on Sunday, Page said that he was not an agent of a foreign power but “might have participated in a few meetings” and acknowledged that in a letter he had referred to himself as an “informal adviser” to the Kremlin.
There are large sections of the surveillance applications that are entirely redacted. In the first application, the first and second parts cover Russian efforts to influence U.S. elections, including the 2016 election; part three introduces Page, part four reviews Page’s denials of cooperation with the Russian government; and parts five and six, a total of five pages, are redacted. By the third renewal application, some of the numbering has changed, and a new seventh part has been introduced. The redactions come to a total of more than 33 pages. This means that new information was almost certainly being acquired and presented to the surveillance court, most likely through the wiretapping but perhaps from other sources.
Even with the redactions, the applications for permission to wiretap Page were serious and substantive. But the redactions mean that contentious days lie ahead. In this asymmetrical dispute, the FBI will be unable to reveal all the facts because the agency needs to protect its sources and methods, while the president and his proxies are free to distort and fabricate at will.