One of the most important votes coming up in the next Congress is the Dec. 2023 all but certain reauthorization of the Foreign Intelligence Surveillance Act (FISA), which allows for surveillance of U.S. citizens even if they have not committed any crime on suspicion that they might be foreign agents, or perhaps in contact with foreign agents, even if it turns out to be made up.
To make the accusation, as happened with the Trump campaign beginning in Oct. 2016, the FBI and the Justice Department had to give the FISA Court a “statement of the facts and circumstances relied upon by the applicant to justify his belief that… the target of the electronic surveillance is a foreign power or an agent of a foreign power…”
The application to the FISA Court stated, “The target of this application is Carter W. Page, a U.S. person, and an agent of a foreign power… The status of the target was determined in or about October 2016 from information provided by the U.S. State Department…”
In part, those allegations relied on the Clinton campaign and DNC-financed Christopher Steele dossier that there was a “well-developed conspiracy” by Russia and the Trump campaign to hack the DNC and give their emails to Wikileaks.
But they also stated as part of the justification for that interference in the Trump campaign that Russia was attempting to convince the Trump campaign to not send weapons to Ukraine and to instead recognize Russia’s annexation of Crimea in Ukraine, telling the FISA Court that the Trump campaign “worked behind the sences to make sure [the Republican] platform would not call for giving weapons to Ukraine to fight Russian and rebel forces” stating Trump “might recognize Crimea as Russian territory and lift punitive U.S. sanctions against Russia,” citing news reports.
The Justice Department also included an Aug. 2016 Politico story highlighting Trump’s positions on Ukraine, including his suggestion the people of Crimea preferred to live in Russia, and his doubts that the territories Russia had seized could be reclaimed suggested without World War III, which Trump was running against on the campaign trail as much as Hillary Clinton.
At a Harrisburg, Pennsylvania, Politico quoted Trump saying a military conflict to take back Crimea would risk nuclear war: “You wanna go back? …You want to have World War III to get it back?” And it quoted Trump on ABC’s “This Week” suggesting the people of Crimea supported Russian annexation: “The people of Crimea, from what I’ve heard, would rather be with Russia than where they were.” This was Trump’s anti-war position in 2016 that helped him secure narrow wins in Pennsylvania, Michigan and Wisconsin and an Electoral College majority against Hillary Clinton, who he often called a war-monger.
So, that was the predicate before the FISA Court: A foreign power was allegedly attempting to influence the candidate, Trump, via campaign volunteers like Page but also hired help like Manafort, to simply recognize Russia’s claims to Ukraine’s sovereign territories in order to avert war.
During the convention, Paul Manafort was campaign chairman, who was swiftly removed by Trump after the New York Times non-coincidentally ran an erroneous hit piece in Aug. 2016 stating he had corrupt dealings in Ukraine, with a supposed ominous sounding “black ledger.” Manafort was the campaign manager of deposed former Ukrainian President Viktor Yanukovych when he was first elected in 2010. He also helped Gerald Ford secure the Republican nomination on the floor against Ronald Reagan in 1976, and then helped Reagan do the same thing in 1980. In 2016, Trump tapped him to win the convention by ensuring Trump delegates he won in the primaries would vote for him on the floor.
Page was similarly removed from the campaign when a Sept. 2016 news story appeared alleging, falsely as it turned out, he was a Russian agent.
Ultimately, former Special Counsel Robert Mueller found there was no Trump campaign conspiracy with Russia to hack the DNC and give the emails to Wikileaks. According to Mueller’s final report to the Attorney General, “the evidence was not sufficient to charge that any member of the Trump Campaign conspired or coordinated with representatives of the Russian government to interfere in the 2016 election.”
The report added, “In particular, the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government — or at its direction, control or request — during the relevant time period.”
Manafort was brought up on unrelated tax and bank fraud charges. Cohen has his own set of problems, but being a Russian agent is not one of them. Per the Mueller report, “Cohen had never traveled to Prague…” And so, he very well could not have been there meeting with Russian intelligence officials. We knew that as early as Jan. 2017 when Buzzfeed published the dossier and Cohen showed his passport saying he had never been to the Czech Republic.
As for Page, he was never charged with anything. A footnote nonetheless attempted to justify the issuance of the FISA warrants against him, stating per Mueller, “On four occasions, the Foreign Intelligence Surveillance Court (FISC) issued warrants based on a finding of probable cause to believe that Page was an agent of a foreign power. 50 U.S.C. §§ 1801(b), 1805(a)(2)(A). The FISC’s probable-cause finding was based on a different (and lower) standard than the one governing the Office’s decision whether to bring charges against Page, which is whether admissible evidence would likely be sufficient to prove beyond a reasonable doubt that Page acted as an agent of the Russian Federation during the period at issue. Cf United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) (explaining that probable cause requires only ‘a fair probability,’ and not ‘certainty, or proof beyond a reasonable doubt, or proof by a preponderance of the evidence’).”
Remarkably, it seems the Justice Department knew there was no conspiracy with Russia as early as 2017 as was revealed by Justice Department Inspector General Michael Horowitz, certainly by the time Mueller was appointed, but who kept the shameful inquiry going for another two years.
The FBI finally contacted former British spy Christopher Steele’s sources and after the surveillance had already been renewed once, in Jan. 2017. According to the inspector general report, once the main source that Steele used was contacted, “the Primary Sub-source made statements during his/her January 2017 FBI interview that were inconsistent with multiple sections of the Steele reports, including some that were relied upon in the FISA applications. Among other things, regarding the allegations attributed to Person 1, the Primary Sub-source’s account of these communications, if true, was not consistent with and, in fact, contradicted the allegations of a ‘well-developed conspiracy’…” Their case had collapsed. But on and on it went. Why?
As Congress considers FISA reauthorization, it must consider the only reasons we learn about any of this is because classified information was revealed to the public, in almost every case, via legal processes that were initiated by executive branch officials including the Attorney General, the President.
There is the exceptional case of Buzzfeed which published the Steele dossier in Jan. 2017, via First Amendment protected journalism. Steele and the Democrats were so anxious to shop the Russiagate story everywhere, they had distributed the dossier to major news outlets throughout the country. It was a gift to the American people, insofar as it would have required a declassification process to get at it.
Otherwise, all of these disclosures were completed by the Trump administration acquiescing to Congressional requests for information and Judicial Watch’s Freedom of Information Act (FOIA) request.
For example, the Justice Department Inspector General investigation by Michael Horowitz was only ever undertaken “in response to requests from the Attorney General and Members of Congress,” according to the March 28, 2018 statement issued by the Inspector General.
The Mueller report itself was ordered by the Attorney General and included its own declassification process. Portions of the Mueller report remain heavily redacted.
Much the same for the released transcripts of his phone calls between former National Security Advisor Michael Flynn and Russian Ambassador Sergei Kislyak on Dec. 23, 2016, Dec. 29, 2016 and Dec. 31, 2016 that showed Flynn engaging with Kislyak to stop a dangerous escalation in U.S.-Russian relations from occurring during the presidential transition of 2016 after the election were only ever revealed “[i]n response to bipartisan requests regarding the LTG Michael Flynn (Retired) transcripts” and were declassified by former President Donald Trump in 2020, according to the Director of National Intelligence’s office.
Flynn was similarly removed as National Security Advisor after the calls were non-coincidentally leaked to the Washington Post in Jan. 2017.
Yet more disclosures have been derived from the appointment of Special Counsel John Durham by former Attorney General William Barr. To the extent that we’re learning anything new from the prosecution of Igor Danchenko — for example that Steele was offered $1 million by the FBI to corroborate his allegations that former President Donald Trump was a Russian agent — is from court filings containing information that heretofore were classified.
In order to get this information out there required a President first having been targeted by FISA and then being so infuriated that he has sought to relentlessly expose the history of how the law was abused to the public. The crown jewel of that effort was on the day before he left office, former President Trump declassified a trove of documents related to the Justice Department’s botched investigation of Trump that falsely accused him and his 2016 presidential campaign of being Russian agents.
In the memorandum, entitled, “Memorandum on Declassification of Certain Materials Related to the FBI’s Crossfire Hurricane Investigation,” Trump outlined how the materials were presented to him to be declassified: “At my request, on December 30, 2020, the Department of Justice provided the White House with a binder of materials related to the Federal Bureau of Investigation’s Crossfire Hurricane investigation. Portions of the documents in the binder have remained classified and have not been released to the Congress or the public. I requested the documents so that a declassification review could be performed and so I could determine to what extent materials in the binder should be released in unclassified form. I determined that the materials in that binder should be declassified to the maximum extent possible.”
But not before the FBI complained about the need for redactions, with Trump granting the redactions: “In response, and as part of the iterative process of the declassification review, under a cover letter dated January 17, 2021, the Federal Bureau of Investigation noted its continuing objection to any further declassification of the materials in the binder and also, on the basis of a review that included Intelligence Community equities, identified the passages that it believed it was most crucial to keep from public disclosure. I have determined to accept the redactions proposed for continued classification by the FBI in that January 17 submission.”
The Trump memorandum continued, “I hereby declassify the remaining materials in the binder. This is my final determination under the declassification review and I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.”
That redacted copy was never returned to the White House as ordered. In May, former Trump administration official Kash Patel said he witnessed the declassification himself in a phone interview with Breitbart.com, but that the documents remained unaltered and had retained their classified markings: “The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified. I was there with President Trump when he said ‘We are declassifying this information.’”
And the Biden Administration Justice Department led by Attorney General Merrick Garland never complied with the Trump memorandum either, Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) and Sen. Ron Johnson (R-Wis.) revealed in a Feb. 15, 2022 letter to Garland. It was a follow-up to an Oct. 2021 letter on the same complaining about the lack of disclosure.
These appear to be the same documents the FBI raided from Trump’s residence in Palm Beach, Fla., Mar-a-Lago, on Aug. 8. On Truth Social, on Aug. 12, Trump noted that “it was all declassified,” referring to the documents seized.
Thanks to the disclosures of political enemies of the state being investigated by a secret police, public opinion of the FBI and the Justice Department, especially among Republicans, is at an all-time low. And the more we learn, the lower that opinion will become.
FISA has become an instrument of not merely political surveillance, but of one-party rule and even has been used to push the U.S. closer to nuclear war with Russia, which we are now on the apparent brink of. As for the surveillance in the U.S., it was clearly targeted at Trump and Republicans, and is rotten to the core. Disclosure is what it fears the most because that is the only way to make it stop.
And disclosure is what Congress should demand of the declassified Russiagate papers, which it should absolutely subpoena, so that it can conduct public oversight of this system’s abuses, especially should Republicans reclaim majorities in the House and Senate. The American people have a right to know just how much the Justice Department and the FBI are interfering with our elections. Without these particular documents, it might be impossible to ever reform this system, and without them, Congress should reject reauthorization of the Foreign Intelligence Surveillance Act next year.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
