Senior FBI Lawyer Did Not Read Carter Page FISA Before Signing Off on It
Congressional testimony by Trisha Anderson highlights unusual process used by FBI and DOJ in obtaining FISA warrant on former Trump campaign adviser Carter Page
Trisha Anderson, the principal deputy general counsel for the FBI and head of the bureau’s National Security and Cyber Law Branch, signed off on an application for a warrant to spy on former Trump campaign adviser Carter Page—before the application went to FBI Director James Comey—despite not having read it, she said.
Anderson, whose division was also assigned the Mid-Year Exam—the FBI’s investigation into Clinton’s use of a private email server—was responsible for legal oversight of the FBI’s Foreign Intelligence Surveillance Act (FISA) applications process, and provided a final sign-off before FISA applications were sent to the FBI director level. Anderson, who supervised the FBI attorneys involved in FISA applications, characterized her role as being “involved at a supervisory level within the legal chain of command.”
Although she did not voluntarily reveal the information, she admitted during questioning that she was the individual responsible at the senior executive service (SES) level for signing off on the original Carter Page FISA application:
Mr. Breitenbach: “You had mentioned earlier that all FISAs have to be signed off, have an approver at an SES level. In OGC? Or is that anywhere inside the FBI?”
Mr. Breitenbach: “Okay. Who was that SES approver for the Carter Page FISA?”
Ms. Anderson: “My best recollection is that I was for the initiation.”
In her Aug. 31, 2018, testimony, a transcript of which was reviewed for this article, Anderson described her role in the FISA process as “a backstop” whereby she would serve as “a last check in the process to ensure that all necessary elements of the FISA package were present and that it met the basic requirements of probable cause.”
Then-Democratic presidential nominee Hillary Clinton gets in her car while leaving her daughter's apartment building in New York City on Sept. 11, 2016. BRENDAN SMIALOWSKI/AFP/Getty Images
However, there appears to be significant latitude in the “backstop” review process. According to Anderson, the Department of Justice (DOJ) attached a “cover note” that identified potential issues, if any, for her to review with every FISA application. If no issues were identified by the DOJ, then according to Anderson, there would be no need for her to read the FISA application:
Ms. Anderson: “[So] there typically would be a cover note that would summarize the FISA. That cover note is generated by DOJ. And because of the time pressures involved and the sort of very-last-stop-in-the-process nature of the review, the SES review, that’s done, I wouldn’t read a FISA unless there were some sort of issue that was identified based on the cover note.”
Mr. Breitenbach: “You are, though, reviewing for the sufficiency of probable cause --”
Ms. Anderson: “After many people have reviewed that assessment. And so, as I mentioned, this was essentially a backstop to all of the other processes and the rigor that had been applied by DOJ attorneys and by FBI investigative and legal personnel.”
Despite the FISA application’s politicized nature and obvious sensitivity, it appears that no issues were identified in relation to it, as Anderson testified that she had not read the application, only the DOJ cover note:
Mr. Breitenbach: “Does that mean you read the FISA --”
Ms. Anderson: “No.”
...
Mr. Breitenbach: “Okay. So you did not read the FISA, but you would’ve been familiar then with at least part of the FISA with regard to the legal predication for probable cause in the FISA in order to be able to sign it?”
Ms. Anderson: “I would be familiar based on the cover note, yes.”
Mr. Breitenbach: “On the cover note. Okay. So --”
Ms. Anderson: “In the case of the Carter Page FISA, I was generally familiar with the facts of the application --”
Mr. Breitenbach: “Okay.”
Ms. Anderson: “-- before I signed that cover note.”
Anderson claimed that in the case of the Page FISA, her approval was “more administrative in nature” because “all necessary approvals, including up through and including the leadership of the FBI and the leadership of the Department” had been obtained by the time the Page FISA came to her desk for sign-off.
The Page FISA application relied heavily on allegations made in the so-called Steele dossier paid for by Hillary Clinton’s 2016 presidential campaign and the Democratic National Committee.
At the time of the FISA application, none of these allegations had been verified or validated by the FBI when they were presented to the FISA court in support of probable cause, and the Steele dossier remains unverified to this day.
Former Trump campaign foreign policy adviser Carter Page at the U.S. District Court for the Southern District of New York on April 16, 2018. Drew Angerer/Getty Images
The dossier extensively cited a Sept. 23, 2016, Yahoo News article by Michael Isikoff, which focused on Page’s July 2016 trip to Moscow. This information, which was used by the FBI to “corroborate” the dossier, was provided to Isikoff by the author of the dossier, former MI6 agent Christopher Steele.
The House Intelligence Committee noted that “Deputy FBI Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.” According to former FBI counterintelligence head Bill Priestap, “corroboration of the Steele dossier was in its ‘infancy’ at the time of the initial Page FISA application.”
Anderson admitted that the Page FISA process was handled outside of normal procedures, receiving early approvals from leadership officials at both the FBI and DOJ—including Deputy FBI Director Andrew McCabe and Deputy Attorney General Sally Yates—prior to the document reaching her desk:
Ms. Anderson: "In this particular case, I’m drawing a distinction because my boss and my boss’ boss had already reviewed and approved this application. And, in fact, the Deputy Attorney General, who had the authority to sign the application, to be the substantive approver on the FISA application itself, had approved the application. And that typically would not have been the case before I did that. Before, I would usually sign the cover note on the FISA application.
“So this one was handled a little bit differently in that sense, in that it received very high-level review and approvals -- informal, oral approvals -- before it ever came to me for signature. And so, in this particular case, I wouldn’t view it as my role to second-guess that substantive approval that had already been given by the Deputy Director and by the Deputy Attorney General in this particular instance.”
Normally, the applications would be presented to Anderson for sign-off and then sent to the FBI director, before being sent to the DOJ for final approval by either the attorney general, deputy attorney general, or assistant attorney general for the National Security Division.
When asked to describe the attention the FISA application received from FBI and DOJ leadership, Anderson testified that the “Deputy Director was involved in reviewing the FISA line by line. The Deputy Attorney General over on the DOJ side of the street was similarly involved, as I understood, reviewing the FISA application line by line.”
Anderson later appeared to soften her characterization of McCabe’s level of review, noting that “[t]he Deputy Director read it, as I understood.”
Acting FBI Director Andrew McCabe before a Senate Intelligence Committee hearing on the Foreign Intelligence Surveillance Act (FISA) in Washington, D.C., on June 7, 2017. REUTERS/Kevin Lamarque
Notably, during McCabe’s testimony before the House Judiciary and Oversight committees, with Anderson acting as his FBI attorney, McCabe’s review of the Page FISA was not addressed at any time.
In particular, Anderson singled out the involvement of her former boss, FBI General Counsel James Baker, in the Page FISA review process. Anderson described Baker as “one of the Nation’s leading experts on FISA...one of the best people you could possibly consult about what was contained within the FISA application.”
Anderson, while defending her handling of the Page FISA signing, claimed that Baker had “personally reviewed and made edits to the FISA.”
Former FBI General Counsel James Baker testified before the House judiciary and oversight committees on Oct. 3 and Oct. 18, 2018. Samira Bouaou/The Epoch Times
However, according to Baker’s Oct. 3, 2018, testimony, he had only read a small portion of the Page FISA and specifically did not review the underlying Woods Procedure file, which provided documentation for the accuracy of facts represented in the FISA application:
Rep. Meadows: “And did you read the whole Carter Page FISA application?”
James Baker: “I -- my recollection is that I read the factual part of the initiation of the Carter Page FISA. I am not going to say I read --”
Baker clarified that by “factual part” he meant that he had only read the probable cause section of the Page FISA. He also testified that he had asked Anderson to personally notify him when the Page FISA began “moving through the system.” Baker noted that he did not believe he reviewed the final document, stating “the final would not necessarily have to come to me for approval.”
Bruce Ohr (C), a former associate deputy attorney general, after a closed hearing with the House Judiciary and House Oversight and Government Reform committees on Capitol Hill on Aug. 28, 2018. Samira Bouaou/The Epoch Times
Contrary to Anderson’s claim, Baker said that he was primarily relying on briefings from his staff, which presumably would have included Anderson in her role as head of the National Security and Cyberlaw Branch—the specific legal division within the FBI that was responsible for the Page FISA:
“[W]hatever briefing I received from my folks about what was in the application, my assessment was that the information that we were providing was adequate and consistent, it was adequate to put the FISA court on notice of the important information that it needed to know, and we were doing so in way that was consistent with our practice with the FISA court that I have been involved with for 20 years.”
During his testimony, Baker admitted that disclosures regarding the role of DOJ official Bruce Ohr and his wife, Nellie, had been unknown to him at the time of the Page FISA application. Ohr was passing on information from Steele, and Fusion GPS co-founder Glenn Simpson, to the FBI.
Fusion GPS Co-Founder Glenn Simpson in the Rayburn Office Building on Capitol Hill, where he testified before the House Judiciary and Oversight Committee on Oct. 16, 2018. Zach Gibson/Getty Images
Baker also testified that this information, had he known of it at the time, would have been subject to further consideration for inclusion in the FISA application:
Rep. Ratcliffe: “But you agree with me, generally speaking, that if the number four person at the Department of Justice and his wife both play roles with respect to the creation of a piece of evidence, that the Foreign Intelligence Surveillance Court should have been apprised of that fact.”
James Baker: “If they played a role in the creation of it, and that’s how it came to the Bureau, then that seems like something that at least -- again, I would like to know more details about it, but it seems like something that should have been evaluated about whether it should go into the FISA application or not. I would have -- what you say concerns me and I would like to know more about it.”
Questions Over FISA Process
The issuance of a FISA warrant, which allows for the surveillance of American citizens, has been sold to the public as being subject to a thorough and rigorous process that entails a detailed vetting of the application at multiple levels within the FBI and DOJ. But Anderson provided some startling insights into the actual approval process.
Judging from Anderson’s testimony, it appears that most of the work, including detailed reviews, are primarily done at lower levels within the FBI. By the time a FISA application makes its way to Anderson, her description of involvement at the SES level invokes something more closely resembling bureaucratic approval than intensive review:
“[T]he review by an SESer within FBI OGC, it happens on a very short timeframe. In other words, those SESers often will get a stack of FISAs that are -- it could be 10, could be 15, could be 5 -- you know, perhaps, the morning they’re obligated to go to the Director or the night before.”
As Anderson herself noted, “There’s not a lot of opportunity for substantive review.”
The FISA process does not appear to be any more rigorous at the leadership levels of the FBI. Anderson claimed that the FBI “Director might on any particular day receive a stack of as many as 15, 17, 20 FISAs.” And the allotted time for the director’s review of the applications seems surprisingly short:
“[They’re] very thick. It’s not unusual for the Director to receive a stack this tall. I’m indicating about a foot and a half between my hands here, for the benefit of the reporter. And so that, obviously, is not commensurate with the 20 minutes the Director has in his schedule for review and approval of the FISAs.
“And so he does rely heavily on the process, on the rigor of the process, both on the FBI side and on the DOJ side, as well as on the cover note that is generated by a DOJ lawyer who has read and been involved in the drafting of that FISA application. And so, yes, the Director or Deputy Director, if he signs the FISA, you know, relies on others.”
The amount of time spent reviewing and signing off on FISA applications at the leadership level appeared to surprise the House majority investigative counsel involved in Anderson’s interview:
Mr. Baker: “And you said just a minute ago -- I thought you said that the Director has 20 minutes set aside to review all the FISAs?”
Ms. Anderson: “Approximately, yes.”
Mr. Baker: “That’s a real number?”
Ms. Anderson: “It’s not set in stone, and so we do have a process in place by which the Deputy Director or Director often will get a heads-up about the number -- there’s an email that goes out every evening that indicates the number of FISAs that are ready for the Director’s signature by the next morning.”
Despite the fact that Anderson did not read the final FISA application she signed off on, Anderson repeatedly noted the particular importance of the Page FISA and claimed that it received an extraordinary level of scrutiny and preparation:
“We understood, because of who Carter Page was, that people would second-guess the appropriateness of submitting the FISA application, and so we were taking extra care with the application itself.”
Carter Page speaks to the media after testifying before the House Intelligence Committee on November 2, 2017. Mark Wilson/Getty Images
Anderson claimed not to recall if she signed any of the three subsequent renewals of the Page FISA. But she did, toward the very end of her testimony—after denying multiple times that she had read it—suddenly recall that she had read the FISA at an undisclosed “earlier point in the process.”
Anderson had testified, however, that her only knowledge of the legal predicate for probable cause came from the DOJ cover letter that was attached to the final version that she signed, not from the actual FISA itself.
Political Bias?
Anderson was asked if she had observed any “improper considerations, including political bias” that might have affected or impacted the Page FISA process. To this question, she immediately responded that she had not.
Anderson was then asked if she had observed “any improprieties in that process that would have required subsequent disclosures to the FISA court about content that the FBI had omitted.”
At this point, Anderson halted her testimony and the FBI counsel interjected.
Upon resumption, Anderson testified that she had been “advised by the FBI lawyers that I can’t answer that question in an unclassified setting.” The topic of additional or supplemental information provided to the FISA court would be returned to once more during Anderson’s testimony:
Mr. Baker: “Do you know if any additional information, either supplemental or for clarification, was provided to the court for any of the FISAs in the Russia case?”
Ms. Anderson: “This question raises the same classification issue that was raised by the question a few moments ago by the minority staff. And so, based on my consultation with the FBI lawyers, I’m not able to answer that question in this unclassified setting.”
Mr. Baker: “Okay.”
Anderson did testify that in the Page FISA process, she was not aware of any attempts by the DOJ or FBI to intentionally mislead the FISA court.
Jeff Carlson is a regular contributor to The Epoch Times. He also runs the website TheMarketsWork.com and can be followed on Twitter @themarketswork.
