I spent part of today reading the complaint in the Carter Page lawsuit, which I discussed in passing yesterday (Paul Sperry: Whither John Durham?). Overall, as I expected, the complaint is a fine piece of legal writing. However, I want to discuss some important points regarding FISA--which, of course, is the heart of the lawsuit. I'm spending some time on this because I'm more optimistic that Page's suit will be successful than I am that Durham will forge ahead with additional important criminal prosecutions after the Clinesmith sentencing on Friday.
While the complaint is, as I said, well written and presents the case clearly, even to readers not familiar with FISA's technical legal requirements, it's not perfect, from my standpoit. What I'll do is draw attention to a certain laxness in paragraph 8 of the complaint. I'll then explain why the matters discussed in that paragraph have always fascinated me and raised suspicions that I think are significant. Unfortunately, I've seen no evidence that those suspicions have attracted any investigative attention.
So, paragraph 8 of the complaint is key to the whole lawsuit--it sets out the legal requirements for obtaining a FISA surveillance warrant:
8. In accordance with core principles of the U.S. Constitution, reinforced by the nation’s legal and cultural aversion to spying on its citizens, Congress and the executive branch have enacted rigorous requirements that must be met before electronic surveillance of a U.S. citizen is legally permitted. To surveil an American citizen, the FISA requires that there be probable cause that the target is an “agent of a foreign power” who is “knowingly engag[ing]…in clandestine intelligence activities.” In short, to legitimately obtain a FISA warrant against Dr. Page, the FBI had to demonstrate that he was a Russian agent who was knowingly engaging in intelligence activities on behalf of Russia.
Here's the 'laxness' that I object to in this paragraph. The requirements for obtaining a FISA warrant are incompletely stated in the first bolded portion.
Because Page is a US Person (in fact, a citizen), in order for the FBI to legally obtain the FISA warrant it was necessary that the FBI persuade the FISA court that there was probable cause to believe two things that are stated in paragraph 8:
1. That Page was an "agent of a foreign power" (Russia, in this case), and
2. that Page was “knowingly engag[ing]…in clandestine intelligence activities.”
What's NOT stated in paragraph 8 is a further requirement with regard to a US Person:
3. The knowing involvement in clandestine intelligence activities must also involve possible violations of US criminal statutes.
Here's the exact wording from the FISA--it's the definition of "agent of a foreign power" as applied to a US Person. That's important, because the definition with regard to non-US Persons is different. I quote the portion of the definition that applies most closely to Page's situation:
On general principle, statutes should be cited accurately and in full as they apply to the plaintiff who is making serious claims. Let's spell this out a bit.
* It's entirely possible for a US Person to be an agent of a foreign power--yet not be involved in intelligence activities, clandestine or non-clandestine.
* It's also entirely possible for a US Person to be an agent of a foreign power who is involved in intelligence activities--yet not be involved in specifically clandestine intelligence activities.
* Finally, it's at least theoretically possible for a US Person to be an agent of a foreign power who is involved in clandestine intelligence activities--yet is not violating a criminal statute of the United States.
Now, here's why this whole issue is one that I've always insisted upon (see here and here for elaborately detailed discusssions). To understand this, let's turn to a statement that Carter Page made to FBI informant Stefan Halper (cf. John Solomon's article today):
"The core lie is that I met with these sanctioned Russian officials, several of which I never even met in my entire life, but they said that I met them in July," an FBI transcript quotes Page as telling Halper during an Oct. 17, 2016 interaction at Halper's farm in Northern Virginia.
At the time, Page was unaware Halper was informing for the FBI or recording him, and unwittingly believed his host was just a fellow academic interested in his research and campaign work.
Page, without knowing that he was about to be placed under FISA surveillance within about a week, hits precisely on the "core" issue for FISA. What Page is describing--based on interviews of Page by the FBI--actually comes straight from Chris Steele's dossier account of Page's trip to Moscow to deliver a commencement address. Importantly, Steele's account--the "core lie" as Page characterizes it--checks all the boxes that the FBI needed to round out their FISA application, to fulfill all the legal requirements. The FBI had, through Steele, a narrative about Page being a Russian agent in a "well-developed conspiracy of co-operation" involving Trump, Manafort, and Page. That narrative has now been thoroughly debunked, including through CIA documentation. However, as we have seen above, the FBI needed something more exotic than just garden variety "acting as an agent of a foreign power" if they were to obtain a FISA warrant. They needed a plausible narrative that Page was engaged in intelligence activity and that he was doing so in a clandestine manner and in violation of US law.
Now, note two things about Chris Steele's dossier account. In his report 2016/94 Steele supposedly writes:
1. Speaking in July 2016, a Russian source close to Rosneft President, PUTIN close associate and US-sanctioned individual, Igor SECHIN, confided the details of a recent secret meeting between him and visiting Foreign Affairs Advisor to Republican presidential candidate Donald TRUMP, Carter PAGE.
2. According to SECHIN’s associate, the Rosneft President [CEO) had raised with PAGE the issues of future bilateral energy cooperation and prospects for an associated move to lift Ukraine-related western sanctions against Russia. PAGE had reacted positively to this demarche by SECHIN but had been generally non-committal in response.
Elsewhere in the same report we also read of Page meeting another sanctioned individual, Diveykin. We also know that Page was reported to have been engaged in negotiations to close an absurdly lucrative deal with Rosneft.
It's all pure fantasy, but it is a "core lie." It's "core" because it portrays Page as allegedly engaged in "secret" (i.e., "clandestine") meetings with "sanctioned individuals" with whom he is suspected to have business dealings as well as intelligence dealings. That checks two boxes for FISA. First, the requirement for "clandestine" intelligence activity. Second, the dealings with sanctioned individuals at least arguably involves Page in violation of US criminal statutes.
This report was written by Steele--or by somebody--in about early July, 2016. That's before Crossfire Hurricane was opened, but we know that Carter Page had been very much on the FBI's radar ever since he was named as an adviser to Trump, in March, 2016.
My question is this: Is it pure coincidence that Steele's reporting--even before Crossfire Hurricane was officially opened--hits on every single necessary legal requirement for a FISA? These legal requirements are technical, very specific for those not involved with FISA, and even a bit arcane in their legal definitions. Was Steele really so knowledgeable about FISA's requirements? Or did someone coach him about exactly what was needed in his reporting?
If I were in charge of debriefing Steele, I would absolutely have grilled Steele on those aspects of his reporting. I don't believe in coincidences that are this specific. Or, at a minimum, I need to be convinced. Otherwise, I'll continue to suspect that the general outlines for what became Crossfire Hurricane were in the works for months before the case was actually opened.