The court that approved surveillance of a former campaign adviser to President Trump was aware that some of the information underpinning the warrant request was paid for by a political entity, although the application did not specifically name the Democratic National Committee or the Hillary Clinton presidential campaign, according to two U.S. officials familiar with the matter.
A now-declassified Republican memo alleged that the Foreign Intelligence Surveillance Court was duped into approving the wiretap request by a politicized FBI and Justice Department. The memo was written by House Intelligence Committee Republicans and alleged a “troubling breakdown of legal processes” flowing from the government’s wiretapping of former Trump aide Carter Page.
But its central allegation — that the government failed to disclose a source’s political bias — is baseless, the officials said.
The Justice Department made “ample disclosure of relevant, material facts” to the court that revealed “the research was being paid for by a political entity,” said one official, who spoke on the condition of anonymity because of the matter’s sensitivity.
“No thinking person who read any of these applications would come to any other conclusion but that” the work was being undertaken “at the behest of people with a partisan aim and that it was being done in opposition to Trump,” the official said.
Former senior Justice Department officials who handled applications for wiretap warrants under the Foreign Intelligence Surveillance Act (FISA) say that such applications typically include dozens of pages and undergo rigorous vetting.
“We didn’t put in every fact, but we put in enough facts to allow the court to judge bias and motive and credibility of the sourcing,” said Matthew G. Olsen, former deputy assistant attorney general for national security who oversaw the Justice Department’s FISA program from 2006 to 2009.
The Republican memo, he said, “is unconvincing and one-sided. It raises more questions than it answers.”
If the FISA application to surveil Page referred to funding by political opponents “or included similar references that revealed a motivation against then-
candidate Trump, even if they did not name the DNC . . . then the FISA applications would be fine,” said David Kris, a FISA expert who led the Justice Department’s National Security Division from 2009 to 2011.
The memo left other national security experts underwhelmed.
“My basic reaction was, that’s what this was all about?” said Stephen I. Vladeck, a law professor at the University of Texas at Austin. “I was expecting something that was actually damning,” Vladeck said. “I think the only thing that has been damned was this whole controversy.”
Robert S. Litt, former general counsel to the director of national intelligence and a surveillance law expert, said, “I don’t find any of the allegations hugely problematic, in part because of the lack of context.”
Republican lawmakers characterized the memo as a public service.
“I have an obligation to the American people when we see FISA abuse . . . [that] American citizens that are represented before this court have to be protected,” House Intelligence Committee Chairman Devin Nunes (R-
Calif.), who led efforts to release the memo, said on Fox News. “It’s not a place we wanted to go, but it’s where we had to go.”
Nunes said that the Page wiretap was “outrageous” and that it was based on “salacious information paid for by a political campaign.”
At issue was an application for surveillance on Page obtained in October 2016 under the Obama administration and renewed three times, including by senior Justice Department officials in the Trump administration. To secure the warrant, the government had to persuade a federal judge there was probable cause to believe that Page was acting as an “agent of a foreign power” and engaged in criminal conduct.
The memo argues that an “essential” part of the warrant application was a dossier outlining alleged ties between Trump and Russia, a document compiled by British ex-spy Christopher Steele, who coordinated the research paid for by the DNC and Clinton campaign. But the memo failed to state how significant a role it played in the application, Litt said.
“If somebody submitted a FISA application that was based entirely on the dossier and left out information that was significant to assessing the credibility of the person who gave you the information, and that information about credibility would have made a difference to the court, I would think that’s significant,” he said.
“If the dossier was one small factor in a much larger mosaic of information going back four years indicating this man was an agent of a foreign power,” then it would be less significant, he said.
The top Democrat on the House Intelligence Committee, Rep. Adam B. Schiff (Calif.), said, “Only very select parts of what Christopher Steele reported related to Carter Page were included within the application, and some of those things were already subject to corroboration.”
A potentially damaging allegation is that the FISA application, which was based in part on information from Steele about Page’s July 2016 trip to Moscow, also cited a September 2016 Yahoo News article by reporter Michael Isikoff. “This article,” the memo states, “is derived from information leaked by Steele himself to Yahoo News.”
In other words, the memo alleges the Yahoo News article amounted to circular reasoning.
Schiff said the article was not included in the application to corroborate Steele. That was one of the memo’s “serious mischaracterizations” about the FISA application.
Kris said it’s more likely that the Justice Department cited the Yahoo News article “to show that the investigation had become public and that the target [Page] therefore might take steps to destroy evidence or cover his tracks.”
The Justice Department “uses lots of consultants who you could argue are not competent,” said Marcy Wheeler, a national security expert who runs the national security blog Emptywheel. Steele, she said, is a competent consultant. “If you want to deal with the issue of consultants in rule of law, you do that systematically; you don’t do that in this one memo.”
Karoun Demirjian contributed to this report.