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:
(2) any person who—(A)knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;(B)pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
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.
I really like your reasoning, Mark. It would certainly be no surprise if the FBI was coaching Steele from the start. Or perhaps Bruce Ohr, a longtime Steele contact.ReplyDelete
I've been of the opinion that the whole 'Steele' scenario was plotted by the FBI and HRC campaign long before Steele got involved, and he was just a stooge to dip the whole mess into a 'foreign intelligence' source to give them cover and credibility. A plotters diversion... Reading the sourcing at the Brookings Institution and Steele's court docs in UK seemed to support that supposition. I supposed you could call it coaching, but I think it was more than that- he was the dummy and they just gave him a script.Delete
Very insightful, Mark.ReplyDelete
Another key requirement for the FISA application was Alexander Downer's memo about his meeting with George Papadopoulos. That memo created the necessary fiction that Russian Intelligence was collaborating with a member of Trump's campaign staff.
I think that Downer was asked to write that memo. He did not write it on his own initiative. I hope that Durham explains that part of the story.
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.ReplyDelete
I suppose the intention was to concoct a FARA accusation against Carter Page. I'm surprised that they weren't able to do so.
I think that the difficulty there was in coming up with a plausible example of Page actually acting in an agency capacity. For purposes of FARA you need to take "agent" in the usual legal sense of the term--I'm thinking back to the usual law school course that's probably still called "Agency and Partnership". For FISA purposes you don't really need a formal relationship (like Flynn, who did register under FARA), but you do need to show that the subject accepts "tasking" from a foreign power. The way we usually put it was, that the subject is "under the direction and control" of the foreign power. With Page, the difficulty was that in the NY case he was presented in the complaint as a "recruitment target" of the Russians--meaning, that he hadn't actually been recruited. The reality was that he was actually acting under the "direction and control" of the FBI. So I think they had to steer clear of all that, and went with the Steele narrative.Delete
The Crossfire Hurricane team intended to keep the Steele Dossier out of the story, if possible.ReplyDelete
A fiction was concocted that Michael Gaeta could not figure out how to send the Dossier reports from the Rome Embassy to FBI Headquarters. Because of Gaeta's supposed incompetence, all of the Dossier reports were sent to the Chief Division Counsel at the FBI's New York Field Office, where the reports were just locked up in a safe and ignored.
If and when the Dossier reports were needed, then they would be retrieved from that safe in the Chief Division Counsel's safe.
In the meantime, the accusation against Carter Page was based on the following logic:
1) According to CrowdStrike, Russian Intelligence hacked the DNC computers and stole embarrassing documents.
2) According to Alexander Downer, George Papadopoulos said that Russian Intelligence would give those embarrassing documents to a member of Trump's campaign staff, to be used in an October Surprise.
3) That campaign staff member must be one of three people: Papadopoulos, Flynn or Page.
4) Therefore, Page must be a witting agent of Russian Intelligence.
The Crossfire Hurricane team intended for that logic to suffice -- without the Dossier. Eventually, though, the Dossier had to be brought into the story.
I'm open to other explanations. One would be that for obvious reasons--Steele's connection to the Hillary campaign--they didn't want to rest the predication for CH squarely on the dossier. That would be why the Downer/Papadopoulos thing was important--threadbare as it was, they still used it for predicating CH. But once CH was open they essentially dropped that angle and immediately pivoted to getting the FISA on Page. To me that indicates--doesn't prove, but points toward--the FBI had Page in mind for longer than they want us to think.Delete
Something about this timeline doesn't work, but I'm just a guy from flyover country. According to the complaint, Crossfire Hurricane was opened in July, 2016.Delete
But didn't Admiral Rogers order the audits of 702 forms in like...early 2016 (March/April?) That would indicate the spying was happening BEFORE any of the 4 FISA's were filed - the ones they lied to get.
I may be misremembering, but if that's the case then that would mean just about everything after April 2016 - including the standing up of 'Crossfire Hurricane' was done to make the illegal appear 'legal' (actually have a FISA).
But also, think about the timing here; first 'FISA' was in October 2016 - Hillary is still a shoe-in. Then...disaster for the cabal; Trump gets elected and it is panic time. It's not like they hid anything internally.
3 of the 4 FISA's are issued across 2017 and what happens in late 2017? Flynn is indicted...and out of nowhere we get Strzok and Page's emails 'leaked' to the media, and at that point the flow of info on this really started up. #exposed
Almost as if someone on the inside - a good guy - was also spying on the bad guys.
Sundance of "The Conservative Treehouse" has an excellent timeline that jives with what you have above. It was a plot within the OBAMA WHITE HOUSE aided and abetted by "read in" DOJ participants like Bruce Ohr. They were working in tandem with the Clinton campaign with the nexus being Fusion GPS.Delete
Type FBI spying in the search field and multiple articles with appear that lays out the plot.
Where the wheels fell off the plot was when Mike Rodgers abruptly shut down access to FBI outside contractors. Nellie Ohr being one of them. Amazingly enough Glenn Simpson wife, Mary Jacoby visited the White House the day after Rodgers cut off the access. Now they desperately needed a mechanism to "wash" their wiretapping information. Hence Carter Page.
The illegality and domestic spying is truly stunning and nobody has been held to account. That is the most dis-heartening and disgusting result from the 4 years of resistance.
After reading this, I thought of that old saying 'Once is happenstance, twice is coincidence...but the third time is enemy activity'.ReplyDelete
The chances of Steele 'accidentally' ticking every single legal box for FISA is about the same as producing a computer by shaking a box of sand for 2000 years.
Keyword: 'legal'. "...hits on every single necessary LEGAL requirement for a FISA?"
McCabe is quoted 'We are all responsible for the work that went into that FISA'. (which one(s)? Point being, ALL of these guys have the knowledge of what LEGAL boxes need to be checked.
At the same time, it's not like a deep pool of people were actively engaging with Steele. His 'handler' (Gaeta) reported directly to Preistap. But Agent Gaeta was suspicious from the first salvo, and ultimately reported Steele to Preistap when he found out Steele was the source of the 'Mother Jones' article. According to Page's complaint, that killed the use of Steele.
Seems like agents at the level of Gaeta wouldn't be likely candidates as 'coaches', but those above him and particularly/especially the 'backchannel' folks, like James Baker....? And the virulently anti-Trumpers Page and Strzok?
But on the other hand, what are the odds that all of the events caused by Killary’s smear work are just a massive cluster of Government dysfunction?
Not that it excuses what’s happened, but what if….Clinton knew exactly the kind of ‘red-meat’ to dangle in front of this DOJ/FBI lions den to send them scurrying in 360 directions. It was almost too easy… kind of like, I dunno..WMD in Iraq.
Hey, when the main tool in your bag is a Russian hammer, everything looks like a Russian spy.
The Hillary campaign definitely had the cooperation of legal people at DoJ/FBI as well as in the private sector who would have understood all this, what was needed.Delete
I'm betting Fusion GPS is far more centered in that story than has been disclosed so far.ReplyDelete
I can see that--with ties in that regard to people really central to the whole Clinton org.Delete
I suppose I'm a broken record on this...but I think:ReplyDelete
1. Page was initially recruited by the Conspirators to join the Trump Campaign long before CH was opened to 'keep tabs' on Trump from within.
2. Why do I believe this? Because Page is clearly a career CIA (and sometime FBI) operational asset and not a political campaign volunteer.
3. The original intent of the Conspirators may have been just to let Page (and other assets inserted in the campaign) report on any developments with national security implications. Presumably, 'innocent' enough.
4. When Mrs Clinton's email problems didn't go away after Comey declared her innocent, and when Trump somewhat unexpectedly became the GOP nominee, Page's role became more important.
5. As the Summer of 2016 unfolded and Anthony Weiner's laptop was discovered with a treasure trove of Clinton emails and non-public polling available to Clinton showed Trump's chances improving, the Conspirators decided to play the Russia Collusion card.
6. This required sacrificing Page (and in all likelihood Papadopoulos, too). Steele was instructed to invent the 'Page is a Russian agent' story for his Dossier and Halper was instructed to confirm it with fake evidence.
7. The Conspirators then filed the first FISA application based on the Dossier and Halper's fake evidence.
8. When Mrs Clinton lost the Conspirators found themselves in a world of hurt. They had illegally surveilled the Trump campaign, filed a false FISA application and were faced with a Trump administration likely to be crawling through their records. So they doubled down.
9. Perhaps Page would not have minded being sacrificed 'for the cause' if the Steele Dossier had not been exposed by Buzzfeed and the confidential FISA paperwork had not been disclosed.
10. But the fake Dossier and the false FISAs which painted Page as a Russian agent engaged in clandestine intelligence activity in violation of US criminal law were exposed to the public. This must have been a bridge too far for Page, who presumably had joined the CIA in the belief that he was working for the good and right. He must have been very surprised to find himself yet another victim of the Deep State which had employed him.
Cassander - When I heard this theory I thought it had some merit but on further reflection I don't believe it is the case. Carter Page is suing for big bucks and if he was indeed a plant then the people who he is suing would bring that out and the case is over and he is liable for their attorney fees.Delete
I am agnostic on this and let's see how this plays out.
I hear you. My theory is rather preposterous.
But I'm not sure it matters whether Carter Page had a yearning to volunteer to support Trump or whether his CIA handler suggested it might not be a bad idea to volunteer to support Trump. Either way, the FBI and DoJ subsequently falsely accused him of being a Russian agent and destroyed both his cover career and his undercover career.
We'll see how this strange tale plays out.
Page could have been a player in the plot, doing exactly what he had been doing for the FBI and CIA for years, and in that role, he would know what purposes his information was for only so far as his handler wanted him to know.Delete
But there is the fact that Page sat for two or three long-form interviews with the FBI without a lawyer. Sure he graduated from the Naval Academy and is a Ph.D., but I know lawyers a standard deviation smarter than myself who would not dare sit for an FBI interview without a lawyer. And he was never charged with a crime. So there is that...
Checking all the boxes is why James Comey smirks at every interaction since then.ReplyDelete
Here is an excellent timeline about Carter Page and his cooperation with both the FBI and CIA. It's damning.ReplyDelete
I totally agree with you on Page, I've had my head caved in for saying he's a IC lackey and likely a plant or a intentional asset of his own making.
Some guys just have that 007 wannabe gene, his history is just too long into it for mere coincidence.
Even with his lawsuit, or maybe even more so with his lawsuit that narrative fits him history all too well.