UPDATE: CNN has updated their reporting. The "FBI official" is now reported to be a "former FBI lawyer," so I've changed the body of the blog. See bottom for additional UPDATES.
Further, we learn:
During one of interviews this year, [OIG] confronted the witness about the document. The witness admitted to the change, the sources said.
The lawyer, who was a line attorney, is no longer working at the bureau, said a person familiar with the matter. A line attorney is a lower level lawyer within the FBI.
No charges that could reflect the situation have been filed publicly in court.
But Durham is on the case. The fact that this was a "lower level lawyer" strengthens my belief that this is probably a misrepresentation rather than a physical alteration. Nevertheless, since the FISA in question concerned unquestionably the most consequential case in Bureau history, I refuse to believe that a "lower level lawyer" just did this on their own account--whether it was a misrepresentation or a physical alteration. Durham must be pushing to find out who's behind this. Also, while this lawyer is no longer working at the Bureau, the fact that he/she was interviewed by OIG makes it a near certainty that he/she was still employed when the interview took place.
Now begins the original blog:
It's difficult, well, not possible, to be sure what's being said in this CNN story: FBI official under investigation after allegedly altering document in 2016 Russia probe. On the face of it, it seems clear enough, but as soon as you start asking questions it becomes more elusive.
Here are the main factual statements:
A former FBI lawyer is under criminal investigation after allegedly altering a document related to 2016 surveillance of a Trump campaign adviser, several people briefed on the matter told CNN.
It's unknown how significant a role the altered document played in the FBI's investigation of Page and whether the FISA warrant would have been approved without the document. The alterations were significant enough to have shifted the document's meaning and came up during a part of Horowitz's FISA review where details were classified, according to the sources.
There are multiple ways to explain this, so I'll try to keep this simple.
The first question I have is, Does this really mean a physical alteration of a case file document--or does it mean that the document was misrepresented or misquoted in the Carter Page FISA application? FISA applications reference or quote case documents, but they don't provide those documents to the FISC (FISA court) as attachments. The second paragraph seems to say that the meaning attributed to the document as presented to the FISC involved a "significant shift in meaning".
When I was still working the FBI's electronic case file (ECF) system was not yet operational. One assumes that the ECF, in whatever form it has taken, would incorporate all sorts of safeguards to prevent actual physical alteration of documents that have been entered into the system. At a minimum, to override such presumed safeguards should--again, presumably--require high level authorizations that would be be documented in the file system. If this were not the case, would it not have been impossible for Horowitz to have discovered the discrepancy? The safest working hypothesis would seem to be misrepresentation rather than physical alteration--but that must remain a hypothesis.
Now, here's the other aspect. FISA applications go through a process of vetting called "Woods procedures". This is the procedure by which FISA applications are said to be "verified."
It does not mean that every tip provided by a source has been independently corroborated. Rather, “verification” refers to the process laid out in the so-called “Woods procedures,” which require Justice Department officials to verify that representations made in a submission to the Foreign Intelligence Surveillance Court match the information in the FBI’s investigative files. If the application relies upon a source for some claim, does the documentation in the case file support that the source actually said what the application presents the source as saying? In this case, then, “verification” would not mean the FBI had necessarily tracked down Steele’s own sources to corroborate his reporting. Rather, it would require that someone “verify” that when the application summarized what Steele had told the FBI, it did so accurately.
The Woods procedures should have caught any discrepancies of that sort, so the question becomes: Were the Woods procedures actually followed? We know from Trisha Anderson's testimony that the Page FISA application was not handled in the normal way. (Cf. various previous blogs re Anderson's testimony.) In fact, Anderson was largely bypassed, even though she should have been the final vetting authority at the FBI--she claims she didn't even read the application--and the FISA application was instead vetted by Andy McCabe and Sally Yates. Were the ordinary Woods fact checkers also bypassed?
The other question that immediately comes to mind is: What kind of surveillance are we talking about here?
CNN says that document had to do with surveillance. Now, my first guess would have been that this referred to surveillance during Page's involvement in a Russian FBI case in New York City, from 2013 to 2016. I've maintained that the FISA application misrepresented Page's involvement in that case. Page would certainly have been captured by both physical and electronic surveillance in the course of that case, so is that what's being referred to when CNN speaks of the document as "related to 2016 surveillance"?
It's possible, since Page continued to cooperate with the FBI on that case up until about March 2016. But it does seem rather late in the day for that--by 2016 the NYC case had been wound down. Moreover, since CNN doesn't specify a month, it's possible that the reference is to other surveillance of Page during 2016--physical or electronic.
Either way, my working hypothesis remains the same: alteration of the document's meaning--that is, significant misrepresentation--rather than physical alteration of the document seems more likely.
Presumably we'll find out come December 9th.
UPDATE 1: It's interesting to recall re the tweet below that Andy McCabe, who read the FISA application "line by line" with Sally Yates, testified under oath that there never would have been a FISA application but for the Steele "dossier." And that speaks volumes for the politicization of the Bureau's legal corps:
Moyer:— Techno Fog (@Techno_Fog) November 22, 2019
The FBI line attorney did not believe it was a close call.
The FBI line attorney believed there was probable cause to support the Page FISA app.
May also have worked on the Hillary Mid Year Exam investigation. pic.twitter.com/GQye617Np7
There was no spying— Undercover Huber (@JohnWHuber) November 22, 2019
Okay, there was spying, but it was all legal
Some illegal things happened, but by mistake <- WE ARE HERE
Bad apples did the illegal things on purpose
We ordered the illegal spying, but there was no cover up
There was a cover up
#BOMBSHELL:— Sara A. Carter (@SaraCarterDC) November 22, 2019
How do you walk back the entire #RussianHoax if you are @CNN?
You ask @PreetBharara, here is his take on the latest investigation @FBI: https://t.co/cWChhALGS6 pic.twitter.com/TXPpq5dKlt