Sunday, August 12, 2018

Declassified: Did Rosenstein Make False Statements to the FISA Judge? - Allan J. Favish

by Allan J. Favish

A newly revealed memorandum sets forth a compelling case that the deputy attorney general was dishonest in carrying on his witch hunt.

Journalist Paul Sperry tweeted on August 5, 2018 that we should look this month for President Donald Trump to "declassify 20 redacted pages of the June 2017 FISA renewal."  Sperry is referring to a Portable Document Format file released on July 21, 2018 by the Federal Bureau of Investigation, which contains heavily redacted versions of four Foreign Intelligence Surveillance Act warrant applications to conduct surveillance of Carter Page, who had been a foreign policy adviser to presidential candidate Donald Trump.  Even with the redactions, the June 2017 warrant application is damning for deputy United States attorney general Rod Rosenstein.
The June 2017 warrant application begins on PDF page 292, with the title "VERIFIED APPLICATION."  On PDF page 379, it states: "The FBI has reviewed this verified application for accuracy in accordance with its April 5, 2001 procedures[.]"  On PDF pages 390-391, it states the following under the heading "APPROVAL":
I find that this application regarding Carter W. Page satisfies the criteria and requirements for such applications set forth in the Foreign Intelligence Surveillance Act of 1978, as amended, and hereby approve its filing with this Court. [redacted] Accordingly, I approve the filing of this application regarding Carter W. Page with the Court [redacted][.]
This APPROVAL is signed on PDF page 391 by Rosenstein.
The unredacted portions of the June 2017 warrant application reveal two deceptions by Rosenstein that have not received sufficient attention.  The first is that Rosenstein told the FISA judge that the information from former British intelligence agent Christopher Steele that was in the warrant application was "verified" but failed to tell the FISA judge that a month earlier, Steele admitted that his information was "unverified."  After Steele's dossier was published in early 2017, Steele was sued for libel in Great Britain.  On page seven of Steele's response to interrogatories in that case, Steele stated:
The December memorandum [a portion of Steele's dossier] was a raw intelligence report which contained information gathered from a confidential source(s) about various national security issues that warranted further investigation.
Further, the words complained of [by the plaintiffs in the libel suit] were published by BuzzFeed as part of an article which stressed that the contents of the dossier (which included the December memorandum) were "unverified", "unconfirmed" and contained "unverified, and potentially unverifiable allegations".  The article added that, "BuzzFeed News reporters in the US and Europe have been investigating the alleged facts in the dossier but have not verified or falsified them."  The article reported that the President-elect's attorney, Michael Cohen, had said that allegations in the dossier "were absolutely false".
In these circumstances, readers of the words complained of were therefore aware that (i) the contents of the December memorandum did not represent (and did not purport to represent) verified facts, but were raw intelligence which had identified a range of allegations that warranted investigation given their potential national security implications; (ii) persons mentioned in the December memorandum were unlikely to have been approached for comment, and therefore many of those persons were likely to deny the allegations contained in the raw intelligence; and (iii) while the December memorandum was prepared in good faith, its content must be critically viewed in light of the purpose for and circumstances in which the information was collected.
As seen on page nine of Steele's response to the interrogatories, the document is dated May 18, 2017.  Presumably, this document was made public on that date or shortly thereafter.  Although we know that Senator Charles Grassley, chairman of the United States Senate Committee on the Judiciary, sent FBI director Christopher Wray a copy of Steele's interrogatory responses in October 2017, it is likely that the FBI and the DOJ had a copy before the June 2017 warrant application was submitted.   It would be difficult to believe that the FBI and DOJ were not monitoring the lawsuit against Steele.  If for no other reason, failure to monitor the lawsuit would have been a dereliction of duty by the FBI and DOJ, given that the Steele dossier was used in the three previous FISA warrant applications and was being used again in the fourth FISA warrant application for a warrant that would allow surveillance for another 90 days.
The FBI and DOJ had a duty to monitor the lawsuit to see if anything developed that would impact the representations the FBI and DOJ were making to the FISA judges.  This is precisely what happened in May of 2017, when Steele responded to the interrogatories.  Yet there is nothing in the June FISA warrant application indicating that Rosenstein informed the FISA judge about Steele's interrogatory responses.  It is unlikely that a disclosure about Steele's interrogatory responses was redacted in the publicly released version of the June 2017 FISA warrant application because there would be no legitimate reason to redact it given that Steele's interrogatory responses were public information.
Rosenstein's second deception was falsely telling the FISA judge that Steele did not disclose his information to the press in September 2016, but disclosed to the press only in October 2016.  Footnotes on PDF pages 308-309 and 320-321 in the June 2017 warrant application state that 1) Steele told the FBI that he shared his information only to Fusion GPS and the FBI, and the FBI did not believe that Steele shared his information with the press in September 2016; 2) in late October 2016, when FBI director James Comey publicly announced the reopening of the Hillary email server investigation, Steele became "frustrated" with this action and, in response, disobeyed the FBI and shared his information with the press in late October 2016; and 3) the FBI continues to assess Steele's reporting as reliable but closed Steele as an active source.
The problem for Rosenstein is that on page eight of Steele's interrogatory responses, from May 2017, Steele admitted that he shared his information with the press in September 2016.  This is the opposite of what Rosenstein told the FISA judge in June 2017.  Rosenstein did not tell the FISA judge in June 2017 about Steele's admission from a month earlier.  The FISA judge was likely left with the impression that Steele had only disobeyed the FBI once regarding sharing with the press, and then only because Steele was "frustrated" at the reopening of the Hillary email investigation in late October 2016, and Steele had no other motivation for sharing with the press.  This was a false impression because Steele's "frustration" over the reopening of the Hillary investigation could not account for Steele's sharing with the press in September 2016.  Moreover, Rosenstein did not tell the FISA judge that Steele had lied to the FBI about his sharing with the press in September 2016.  The FISA judge was not given any indication that Steele's credibility was in serious doubt because of that lie.  This is especially egregious, given that the June 2017 warrant application was significantly based on Steele's credibility.
Senator Grassley and Senator Lindsey Graham, chairman of the Judiciary Committee's Subcommittee on Crime and Terrorism, noticed the significance of Steele's interrogatory responses over six months before the public release of the FISA warrant applications.  On February 6, 2018, Grassley and Graham, releaseda redacted version of their memorandum on the topic dated January 4, 2018.  On pages 4-5 of their memorandum, they asserted that FBI and DOJ officials misrepresented Steele's credibility to the FISA Court in order to make Steele appear more credible than the facts would justify.
The Grassley-Graham memorandum is primarily focused on Steele's lying to the FBI about when he spoke to the press.  However, the memorandum sets forth a compelling case that Rosenstein was dishonest with the FISA judge in June 2017, and the unredacted portions of the June 2017 warrant application support this conclusion.

Allan J. Favish is an attorney in Los Angeles.  His website is  James Fernald and Mr. Favish have co-authored a book about what might happen if the government ran Disneyland, entitled Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).


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