Today, we learn from Carlson, Senior FBI Lawyer Did Not Read Carter Page FISA Before Signing Off on It: Congressional testimony by Trisha Anderson highlights unusual process used by FBI and DOJ to obtain FISA warrant on former Trump campaign adviser Carter Page, that Anderson did her best to distance herself even further from the approval process, and in the process of distancing herself did two things:
* She made clear that all the normal FISA approval procedures were essentially reversed for the Carter Page FISA; and
* She thereby threw Andy McCabe and Sally Yates under the wheels of a bus that is moving at top speed with no brakes.
Here's how Anderson's Aug. 31, 2018, testimony went--as far as we have it:
Mr. Breitenbach: You had mentioned earlier that all FISAs have to be signed off, have an approver at an SES [Senior Executive Service] level. In OGC? Or is that anywhere inside the FBI?
Ms. Anderson: In NSLB, in my particular branch.
Mr. Breitenbach: In NSLB?
Ms. Anderson: Yeah. Uh-huh.
Mr. Breitenbach: Okay. Who was that SES approver for the Carter Page FISA?
Ms. Anderson: My best recollection is that I was for the initiation.
What Anderson is saying is that, for the first or initial authorization of FISA coverage on Carter Page, she was the SES approver. As we know, there were also three renewals of that initial authorization, but the underlying probable cause for those renewals remained essentially the same, relying heavily on the Steele "dossier"--the "crucial" factor, as McCabe stated in his testimony.
However, Anderson was at pains to emphasize that her role as approver was to serve as the last "backstop," meaning that she relied on the previous review by "many people," both in the FBI and at DoJ. Here's how she explains that:
Ms. Anderson: [So] there typically would be a cover note that would summarize the FISA. That cover note is generated by DOJ. And because of the time pressures involved and the sort of very-last-stop-in-the-process nature of the review, the SES review, that’s done, I wouldn’t read a FISA unless there were some sort of issue that was identified based on the cover note.
Mr. Breitenbach: You are, though, reviewing for the sufficiency of probable cause —
Ms. Anderson: After many people have reviewed that assessment. And so, as I mentioned, this was essentially a backstop to all of the other processes and the rigor that had been applied by DOJ attorneys and by FBI investigative and legal personnel.
As we see in the next snippet of testimony, the reason that Anderson says she signed off on the Carter Page FISA without reading it was because it came to her with all necessary approvals and no issues were indicated on the cover note. But, notice what she also says--she was "generally familiar" with the facts of the application already. As we saw, she knew that the application had been given a "line by line" review by McCabe and Yates.
Mr. Breitenbach: Does that mean you read the FISA —
Ms. Anderson: No.
Mr. Breitenbach: Okay. So you did not read the FISA, but you would’ve been familiar then with at least part of the FISA with regard to the legal predication for probable cause in the FISA in order to be able to sign it?
Ms. Anderson: I would be familiar based on the cover note, yes.
Mr. Breitenbach: On the cover note. Okay. So —
Ms. Anderson: In the case of the Carter Page FISA, I was generally familiar with the facts of the application —
Mr. Breitenbach: Okay.
Ms. Anderson: — before I signed that cover note.
How did that work? Normally, the applications would come to Anderson from below--she was the top SES level approver. One gets the impression that the Carter Page application would be coming to her not for her approval so much as simply for her signature. Or that is certainly the impression that she wanted to leave with the House. Thus, she could assume that all necessary review of the probable cause had been done and had proven satisfactory. And, since she knew that that review had been done by McCabe and Yates, her superiors, who was she to question them?
Carlson makes three key observations with regard to all this:
Anderson claimed that in the case of the Page FISA, her approval was “more administrative in nature” because “all necessary approvals, including up through and including the leadership of the FBI and the leadership of the Department” had been obtained by the time the Page FISA came to her desk for sign-off.
The House Intelligence Committee noted that “Deputy FBI Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.” According to former FBI Counterintelligence head Bill Priestap, “corroboration of the Steele dossier was in its “infancy” at the time of the initial Page FISA application.”
So, in other words, McCabe and Yates, the FBI and DoJ, had what they needed. They didn't care about the "infancy" of the corroboration phase. They knew that nothing was verified, but what mattered to them was that they had a package they believed would fly if presented to the FISC--it would sound plausible to a FISC judge. And then they'd have a FISA that could be leveraged against Donald J. Trump.
And Anderson makes the irregular handling of the Carter Page application explicit:
Ms. Anderson: In this particular case, I’m drawing a distinction because my boss and my boss’ boss had already reviewed and approved this application. And, in fact, the Deputy Attorney General, who had the authority to sign the application, to be the substantive approver on the FISA application itself, had approved the application. And that typically would not have been the case before I did that. Before, I would usually sign the cover note on the FISA application.
So this one was handled a little bit differently in that sense, in that it received very high-level review and approvals — informal, oral approvals — before it ever came to me for signature. And so, in this particular case, I wouldn’t view it as my role to second-guess that substantive approval that had already been given by the Deputy Director and by the Deputy Attorney General in this particular instance.
Those words "substantive approval" are, I believe, very important. By using them Anderson is placing responsibility for approving the sufficiency and reliability of the probable cause supporting the Carter Page application squarely on McCabe and Yates. They were the ones who reviewed the application "line by line," and McCabe knew that the probable cause was all about the Steele dossier material. Further, as we've already seen, she knew that her "boss" (James Baker) had participated in the process and she knew that Baker had "personally reviewed and made edits" to the application. "Substantive" edits? I very much doubt that. All this high level review was simply for plausibility.
Baker, in fact, in his Oct. 3, 2018, testimony, confirmed that he had reviewed the probable cause in the Carter Page application:
Rep. Meadows: And did you read the whole Carter Page FISA application?
James Baker: I — my recollection is that I read the factual part of the initiation of the Carter Page FISA. I am not going to say I read —
The “factual part” is precisely the probable cause section, and that's the make or break part of the application--the rest being largely boilerplate legalese. Which is exactly why Baker didn't bother with anything but the "factual part." But note how Baker explains his role. His role was to assess whether the "information" in "the factual part" was "adequate and consistent"--not whether it was actually true or was actually factual:
“Whatever briefing I received from my folks about what was in the application, my assessment was that the information that we were providing was adequate and consistent, it was adequate to put the FISA court on notice of the important information that it needed to know, and we were doing so in way that was consistent with our practice with the FISA court that I have been involved with for 20 years.”
Anderson, of course, did her best to give the impression that her failure to read the Carter Page FISA application "line by line" was due to her heavy work load. She simply didn't have the time to slog through another FISA application if it had already been approved--out of all the ordinary channels and procedures:
“The review by an SESer within FBI OGC, it happens on a very short timeframe. In other words, those SESers often will get a stack of FISAs that are — it could be 10, could be 15, could be 5 — you know, perhaps, the morning they’re obligated to go to the Director or the night before.
“There’s not a lot of opportunity for substantive review.
“They’re very thick. It’s not unusual for the Director to receive a stack this tall. I’m indicating about a foot and a half between my hands here, for the benefit of the reporter. And so that, obviously, is not commensurate with the 20 minutes the Director has in his schedule for review and approval of the FISAs.
"And so he does rely heavily on the process, on the rigor of the process, both on the FBI side and on the DOJ side, as well as on the cover note that is generated by a DOJ lawyer who has read and been involved in the drafting of that FISA application. And so, yes, the Director or Deputy Director, if he signs the FISA, you know, relies on others.”
To which I say, Yes and no. It's true that these applications are long, but as I've said, a lot of it is legal boilerplate. The full Carter Page FISA application is about 66 pages, but the probable cause section is about 33 pages. And those pages are double spaced at a minimum, with frequent larger spaces. You might not want to read a foot high stack of these things, but the Carter Page FISA application? That's a very different story
Put yourself in Anderson's position. She admits that she knows what the Carter Page is "generally" about. Right. IT'S "GENERALLY" ABOUT DONALD J. TRUMP. Who, as Anderson lolls in her deluxe Branch Chief office in NSLB, is on the brink of becoming the 45th President of the United States of America. Is there any more important matter that will ever in her lifetime cross her desk? I'm here to tell you: No. If I were in her position, I would FIND time to read every single word in the 33 page "factual part" of that application. I would stay late, I would delay, if necessary, and take it to the john to read, but by hook or by crook I would read it all. Or at least those 33 double spaced "factual" pages. But Anderson claims she simply signed the cover note?
Well, it turns out she did clarify that. As Carlson says:
Despite the fact that Anderson did not read the final FISA application she signed off on, Anderson repeatedly noted the particular importance of the Page FISA and claimed that it received an extraordinary level of scrutiny and preparation [comment: and that "extraordinary level of preparation" is exactly why I would want to read it]:
“We understood, because of who Carter Page was, that people would second-guess the appropriateness of submitting the FISA application, and so we were taking extra care with the application itself.”
Anderson claimed not to recall if she signed any of the three subsequent renewals of the Page FISA. But she did, towards the very end of her testimony, after denying multiple times having read it, suddenly recall that she had read the FISA at an undisclosed “earlier point in the process.”
Anderson had testified, however, that her only knowledge of the legal predicate for probable cause came from the DOJ cover letter that was attached to the final version that she signed, not from the actual FISA itself.
Exactly. I thought so. And, by the way, that indicates that she was involved at an earlier stage than she wants to admit. She didn't read the "final" application because she'd already read drafts that were as close to final as dammit. So that's what she meant when she said she was "generally familiar with the facts of the application." Generally familiar as in, I read it. And that tells me there are still people out there who need to be squeezed. As if we didn't all know that already.