FISA Memo Released and Fraud on the FISA Court Revealed

With the release of the House Intelligence Committee Memo, it is manifestly clear that the Department of Justice (DOJ) and the FBI participated in a fraud on the Foreign Intelligence Surveillance Court (FISC) in order to surveil Carter Page, a U.S. citizen. The FBI and the DOJ deliberately and intentionally advanced unverified opposition research paid for by one political party (the Democratic National Committee) designed to harm the opposing party by creating a fictional Russian collusion story as reliable fact. All this took place in the midst of a U.S. presidential election.  

Evidently, Deputy FBI Director Andrew McCabe testified before the Committee that but for reliance on the 35-page dossier, authored by Christopher Steele, the FISA warrant would neither have been sought nor obtained. After previously rejecting their initial request, the FISA judges relied on two sources as a basis for the eventual issuance of the warrant: the dossier authored by a foreign agent, Christopher Steele, and a Yahoo News report Mr. Steele gave to Yahoo News.

This behavior is a massive abuse of power and should outrage all Americans of both political parties.

In essence, a surveillance warrant was issued against an American citizen grounded in unverified, uncorroborated claims made by a foreign agent who “was desperate” to prevent the current President from winning the 2016 election and was passionate about him not being President. Despite this hostility toward the current President, in a 2017 filing in a British court, Mr. Steele,  said the claims he made in the dossier were unverified. Speaking through his attorneys regarding an alleged hacker, Steele “acknowledges that the part of the 35-page dossier that identified Mr. Gubarev as a rogue hacker came from “unsolicited intelligence” and “raw intelligence” that “needed to be analyzed and further investigated/verified.” Mr. Steele’s court filing portrays him as a victim of Fusion GPS — the Washington firm that hired him with money from a Hillary Clinton backer. Fusion GPS specializes in opposition research for political parties and circulated the Steele dossier among reporters in an effort to injure the opponent of one of the major political parties. Mr. Steele’s unreliability is confirmed by virtue of evidence that Christopher Steele lied to the FBI when he said he did not speak to the media.

Based largely on the information contained in the Steele dossier, financed by Fusion GPS and funded by a political party with the aid of the party’s law firm, on October 21, 2016, the DOJ and FBI obtained one initial FISA warrant targeting a peripheral member of the Trump campaign and subsequently three FISA renewals from the FISC.

The FISA statute, 50 U.S.C. §1805 (d)(1) requires a FISA order on an American citizen be renewed by FISC every 90 days. Each renewal requires a separate finding of probable cause. Then-FBI-Director James Comey, the now-disgraced former director, signed three FISA applications on behalf of the FBI, and former Deputy Director Andrew McCabe signed one. Signing on behalf of the DOJ were the Deputy Attorney General Sally Yates, then-Acting Deputy Attorney General Dana Boente, and current Deputy Attorney General Rod Rosenstein who each signed one or more FISA applications on behalf of the Department of Justice. Parenthetically, readers should note that Mr. Boente currently serves as General Counsel for the FBI currently led by FBI Director Christopher Wray.

Because foreign intelligence activity is very sensitive and because surveilling American citizens implicates the important constitutional rights we hold as citizens, the integrity of the FISA process depends on the court’s ability to hold the government to the highest standards. This means that the evidence adduced before the court must demonstrate probable cause as well as the absence of bias. Thus, all material and relevant evidence favorable to the American target should be released to the court, including evidence that the affidavit on which the FISA warrant was issued was grounded in unverified evidence funded by a political party. In addition, FISC’s rigor in protecting the rights of Americans--including applications for a 90-day renewal of surveillance order--depends on the government’s production to the court of all material relevant facts, including evidence of bias attributed to Mr. Steele, Fusion GPS, and an opposition political party.

Failure to submit all material evidence to the FISA court constitutes a fraud on the court. Even more outrageous, the source of the relevant FISA order targeting Carter Page was created by a foreign national. This means that the FBI and DOJ outsourced their research and arguably violated their solemn duty to the American people. By doing so, these two government departments fueled the narrative that the Russian interfered in America’s last presidential election. On the contrary, the adducible evidence shows that members of the FBI and the DOJ interfered in the 2016 presidential campaign much more than any Russian operative. They placed their fingers on the scales of democracy to favor one candidate over another.

This behavior suggests that each individual who signed the FISA applications on behalf of the DOJ and/or the FBI should be required to testify under oath before Congress and the American people and give a defensible account for their misconduct. Otherwise they must face consequences. They must be held accountable.