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  Horowitz Report Chapter 5 Section I

       Decision to Seek FISA Authority
      see https://www.justice.gov/storage/120919-examination.pdf
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CHAPTER FIVE

THE FIRST APPLICATION FOR FISA AUTHORITY ON CARTER PAGE

At the request of the FBI, the Department filed four applications with the Foreign Intelligence Surveillance Court FISC seeking FISA authority to conduct electronic surveillance targeting Carter Page: the first application on October 21, 2016, and three renewal applications on January 12, April 7, and June 29, 2017. A different FISC judge considered each application and issued the requested orders, collectively resulting in approximately 11 months of FISA coverage targeting Carter Page from October 21, 2016, to September 22, 2017.

In this chapter, we describe the first of the four FISA applications, beginning with the early consideration of a potential FISA targeting Carter Page in August 2016, shortly after the FBI opened the Crossfire Hurricane investigation, and the FBl 's eventual submission of a FISA request to the Office of Intelligence( OI) in the National Security Division( NSD) in September 2016, a few days after the Crossfire Hurricane team received Christopher Steele 's reporting. We discuss the significance of the Steele reporting to the decision of FBI attorneys to proceed with the FISA request. We also describe the development of the first FISA application and the attention it received during the review and approval process from the FBI, OI, NSD management, and the Office of the Deputy Attorney General( ODAG). We further describe the filing of the read copy with the FISC, the feedback OI received from the court, revisions made to the application to address that feedback, and the last steps taken before the final application was filed and the orders were issued. These last steps included the completion of the Woods Procedures described in Chapter Two, then FBI Director James Comey 's certification of the application, and the oral briefing provided to, and final approval given by, then Deputy Attorney General( DAG) Sally Yates. Finally, we describe the most significant instances in which information in the FISA application was inaccurately stated, incomplete at the time the application was filed, or unsupported by documentation in the Woods File.

I. Decision to Seek FISA Authority

A. Early Consideration of a Potential FISA

As described in Chapter Three, on August 10, 2016, under the umbrella of Crossfire Hurricane, FBI Headquarters opened a new full counterintelligence investigation on Carter Page. The pre-existing counterintelligence case on Page was then transferred from the FBI 's New York Field Office( NYFO) to FBI Headquarters and merged into the new case. At about the same time, the Crossfire Hurricane team began planning for Confidential Human Source( CHS) operations( discussed later in this chapter and in Chapter Ten) targeting Carter Page and George Papadopoulos. Also at about the same time, the case agent assigned to the Carter Page investigation, Case Agent 1, contacted FBI 's Office of the General Counsel( OGC) about the possibility of seeking FISA authority targeting Carter Page 121 to conduct electronic surveillance[ REDACTED]. This was the first potential use of FISA authority considered by the Crossfire Hurricane team.

The Crossfire Hurricane team told us that the proposal for FISA coverage targeting Carter Page originated from the team, not an instruction from management. The team also told us that its interest in obtaining a FISA was based upon Page 's prior contacts with known Russian intelligence officers, which the team believed made him most receptive to receiving the offer of assistance from the Russians reported in the FFG information( described in Chapter Three) provided to the FBI in late July 2016. Case Agent 1 said that he had hoped that emails and other communications obtained through FISA electronic surveillance would help provide valuable information about what Page did while in Moscow in July 2016 and the Russian officials with whom he may have spoken.

For these reasons, on August 15, 2016, Case Agent 1 emailed a written summary on Carter Page to the OGC Unit Chief, stating that he thought the information provided" a pretty solid basis'' for requesting FISA authority. This summary, which a Staff Operations Specialist( SOS) prepared, briefly described Page 's Russian business and financial ties, his prior contacts with Russian intelligence officers, and his recent travel to Russia. According to Case Agent 1, both he and the SOS believed that they had enough information to establish the probable cause necessary to request FISA authority on Carter Page. Case Agent 1 told us that Page 's contacts with known Russian intelligence officers( described in Chapter Three) provided a" pretty good link'' for a FISA.

Later the same day, the OGC Unit Chief responded to Case Agent 1 with requests for additional information about what Page had previously told the FBI regarding his relationship with Russian intelligence officers in order to compare it with information the FBI had from other reporting sources. She said that this information would be helpful to determine whether Page had a clandestine relationship with Russia. The OGC Unit Chief added that she would reach out to her OI counterparts to get their thoughts," but I think we 'll need more for PC,'' meaning probable cause.

The next day, on August 16, the OGC Unit Chief contacted Stuart Evans, then NSD 's Deputy Assistant Attorney General with oversight responsibility over OI, stating:

We have some facts which may lead to a FISA on one of our subjects mostly past contacts and connections to[ Russian Intelligence Services] and a financial interest in[ a] Russian-government controlled gas business. I do n't think we 're quite there yet, but given the sensitivity and urgency of this matter, I would like to get OI involved as early as possible.

The OGC Unit Chief told Evans he had permission to brief a small group of OI attorneys into Crossfire Hurricane, including the Operations Section Chief, Gabriel Sanz-Rexach; the Deputy Section Chief; the Counterintelligence Unit Chief( OI Unit Chief); and one line attorney.

The OGC Unit Chief and OGC Attorney assigned to assist the Crossfire Hurricane team met with the OI Unit Chief the same day to brief him on Crossfire Hurricane and the four individual subjects. During his OIG interview, the OI Unit Chief recalled that the OGC attorneys mentioned the possibility of seeking FISA authority targeting Carter Page, but he did not recall a decision being made at the meeting about whether to do so. The OI Unit Chief said that, at the request of Evans, he advised OGC that the FBI would need to submit a formal FISA request before OI would begin the back-and-forth process with the FBI on a potential application. He told us that it was over a month later when OGC told him for the first time that the FBI was ready to move forward with the request.

While FISA discussions were ongoing, on or about August 17, 2016, the Crossfire Hurricane team received information from another U.S. government agency relating to Page 's prior relationship with that agency and prior contacts with Russian intelligence officers about which the agency was aware. We found that, although this information was highly relevant to the potential FISA application, the Crossfire Hurricane team did not engage with the other agency regarding this information until June 2017, just prior to the final Carter Page FISA renewal application. As we discuss later in this chapter, when Case Agent 1 was explicitly asked in late September 2016 by the OI Attorney assisting on the FISA application about Page 's prior relationship with this other agency, Case Agent 1 did not accurately describe the nature and extent of the information the FBI received from the other agency.

Also in August, while FISA discussions were ongoing, the Crossfire Hurricane team conducted a consensually monitored meeting between an FBI CHS and Carter Page in an attempt to obtain information from Page about links between the Donald J. Trump for President Campaign and Russia. During the operation, which we describe in greater detail below, Page made statements to the CHS that would have, if true, contradicted the notion that Page was conspiring with Russia. Page also made statements that contradicted the Steele reporting received by the team in September, in particular the assertion that Manafort was using Page as an intermediary with Russia. However, as we detail later in this chapter, we found no evidence the FBI made Page 's statements from this CHS meeting available to OI or NSD until mid-June 2017.

FBI documents reviewed by the OIG indicate that by late August 2016, Case Agent 1 had been told that he had not yet presented enough information to support a FISA application targeting Carter Page. Case Agent l 's handwritten notes dated August 22, 2016 state:" Not there yet: OI'' below a reference to a FISA request targeting Carter Page. Case Agent 1 told us that he remembered being told that he had not yet presented enough information to support probable cause, but he could not recall whether OGC or OI, or both, had made that assessment.

Handwritten notes taken by David Laufman, then Chief of NSD 's Counterintelligence and Export Control Section( CES), indicate that on August 25, 2016, FBI and NSD officials discussed the status of FISA coverage targeting Carter Page during a weekly Crossfire Hurricane meeting and that someone at the meeting conveyed that there was''[ n] o FISA up on Page; currently no PC.'' Laufman told us that he did not remember who conveyed this information, but he thought it was probably one of the FBI officials in attendance, which included the OGC Unit Chief, the Section Chief of CD 's Counterintelligence Analysis Section I( Intel Section Chief), and Assistant Director E.W.( Bill) Priestap.

As discussed below, the FBI OGC Unit Chief contacted the NSD OI Unit Chief on September 21, 2016, two days after the Crossfire Hurricane team received six of Steele 's reports, to advise that the FBI believed it was ready to submit a formal FISA request to OI. As the OGC Unit Chief stated in an October 19, 2016 email to members of the Crossfire Hurricane team," we first raised the issue of[ a] potential FISA[ targeting Carter Page] early on-maybe the 2nd or 3rd week of the case. But we did n't have serious discussions until we got the actual[ Steele] reports( maybe the day after? ).''

B. The FBl 's Submission of a FISA Request Following Receipt of the Steele Reporting

As described in Chapter Four, the Crossfire Hurricane team received the first set of Steele 's reports on September 19, 2016. Upon receipt of these reports, the team immediately began the process of evaluating Steele and the information he provided. For example, that same day, SSA 1 sent an email to Handling Agent 1 and others, stating," Our team is very interested in obtaining a source symbol number/source characterization statement and specifics on veracity of past reporting, motivations, last validation, how long on the books, how much paid to date, etc.'' SSA 1 told us that he did not receive a response from Handling Agent 1 to this email, and we did not find one during the course of our review.

Also on September 19, the team began discussions with OGC to consider Steele 's reporting as part of a FISA application targeting Carter Page. In an email to the OGC Unit Chief and OGC Attorney, the Supervisory Intelligence Analyst( Supervisory Intel Analyst) forwarded an excerpt from Steele 's Report 94( described in more detail below) concerning Page 's alleged secret meeting with Igor Divyekin in July 2016 and asked," Does this put us at least * that * much closer to a full FISA on[ Carter Page]? ''( Emphasis in original). The Supervisory Intel Analyst told us that, earlier that day, he had researched information on Divyekin that" elevated'' the significance of this particular allegation. He said that he wondered whether OGC would find that this information, along with the totality of the other information on Carter Page, brought them closer to probable cause on Page. Similarly, Case Agent 1 told us that the team 's receipt of the reporting from Steele supplied missing information in terms of what Page may have been doing during his July 2016 visit to Moscow and provided enough information on Page 's recent activities that Case Agent 1 thought would satisfy OI.

Two days later, on September 21, the OGC Attorney and OGC Unit Chief requested a meeting with the OI Unit Chief to discuss, among other things, a potential FISA application targeting Carter Page. The OGC Unit Chief told the OIG that the receipt of the Steele reporting changed her mind on whether they could establish probable cause. She said that although there could be differing opinions, she thought it was a" close call'' when they first discussed a FISA targeting Page in August, and that the Steele reporting in September" pushed it over'' the line in terms of establishing probable cause. She explained that the Steele reporting presented information that Page had recent contact with the Russians and that this contact was consistent with the information received from the FFG that someone on the campaign had received an offer or suggestion of assistance from the Russians. She said that before the Steele reporting, the FBI did not have information concerning what Page 's current activities with the Russians might have been or information suggesting a connection between Page and the FFG information. Similarly, the OGC Attorney told us that he thought probable cause was" probably 50/50'' before the Steele reporting; however, in his view, it was a combination of the Steele reporting, Carter Page 's historical contacts with Russian intelligence officers, and statements Page made in October 2016 during a consensually monitored meeting with an FBI CHS( described later in this chapter and in Chapter Ten) just before the FISA application was filed with the court, that made the OGC Attorney comfortable about establishing probable cause.

On September 21, the OGC attorneys met with the OI Unit Chief and described the reporting from Steele concerning Carter Page that the team had recently received. According to notes of the meeting, the OGC Attorney and OGC Unit Chief told the OI Unit Chief about the allegations contained in the Steele reporting that Page had a secret meeting with a high-level Russian official in July 2016, that Page may have received a Russian dossier on Hillary Clinton, and that there was a" well-developed conspiracy'' between associates of the Trump campaign and Russian leadership being managed, in part, by Carter Page. The OI Unit Chief told us that he recalled that the Steele reporting was" what kind of pushed it over the line'' in terms of the FBI being ready to pursue FISA authority targeting Page. He recalled thinking that if the information bears out during the drafting process, there would probably be sufficient information to support a FISA application targeting Page. Conversely, he said that without the Steele reporting concerning Page, he would not have thought they could establish probable cause based on the other information the FBI presented at that time( Page 's historical contacts with Russia).

On September 22, the OI Unit Chief assigned a line attorney( OI Attorney) to work on the Carter Page FISA, and he and the OI Attorney met with the OGC Unit Chief to brief the OI Attorney into the case and discuss the essential points for the FISA. The same day, OGC submitted a FISA request form to OI providing, among other things, a description of the factual information to establish probable cause to believe that Carter Page was an agent of a foreign power, the" facilities'' to be targeted under the proposed FISA coverage, and the FBI 's investigative plan. Case Agent 1 said he prepared the FISA request form, and the OGC Attorney said he may have provided a" very quick review'' before sending it to OI. The OGC Attorney told us that the FISA request form was not as" robust'' as it could have been because the FBI wanted to submit it to OI as soon as possible.

The FISA request form drew almost entirely from Steele 's reporting in describing the factual basis to establish probable cause to believe that Page was an agent of a foreign power, including the secret meeting between Carter Page and Divyekin alleged in Steele 's Report 94 and the role of Page as an intermediary between Russia and the Trump campaign 's then manager, Paul Manafort, in the" well-developed conspiracy'' alleged in Steele 's Report 95. The only additional information cited in the FISA request form to support a probable cause finding as to Page was( 1) a statement that Page was a senior foreign policy advisor for the Trump campaign and had extensive ties to various state-owned or affiliated entities of the Russian Federation,( 2) Papadopoulos 's statement to the FFG in May 2016, and( 3) open source articles discussing Trump campaign policy positions sympathetic to Russia, including that the campaign 's tone changed after it began to receive advice from, among others, Manafort and Page.

The FISA request form submitted to OI did not include information that the FBI obtained as a result of CHS meetings in August and September referenced in Chapter Three and summarized in Chapter Ten. These meetings were an attempt by the FBI to better understand what Papadopoulos meant when he advised the FFG about the alleged offer of assistance from the Russians, to probe Page and Papadopoulos about links between the campaign and Russia and to determine whatever Page and Papadopoulos may have known about Russia 's use of emails to benefit the Trump campaign. The first meeting involved a consensually monitored conversation between an FBI CHS and Page in August 2016, and the second involved consensual! monitored conversations between an FBI CHS[ REDACTED] and Papadopoulos in September 2016.

During the meeting in August, Carter Page stated, among other things, that he had" literally never met'' or" said one word to'' Paul Manafort, and that Manafort had not responded to any of Page 's emails. Page made other statements that did not add support to the notion that Page was conspiring with Russia. During the meetings in September, Papadopoulos stated, among other things, that to his knowledge no one associated with the Trump campaign was collaborating with Russia or with outside groups like Wikileaks in the release of emails. As described in Chapter Eight, the OI Attorney told us that he did not think the FBI told him about these meetings before the FISA application was filed with the court. We found no information suggesting otherwise.

The FISA request form also did not include information the Crossfire Hurricane team received from another U.S. government agency on August 17, 2016, relating to Page 's prior relationship with that agency and prior contacts with Russian intelligence officers.

Finally, the FISA request form referred to Steele as a" reliable source, whose previous reporting to the FBI has been corroborated and used in criminal proceedings.'' As noted later in this chapter, while Steele had previously provided information to the FBI that helped the FBI further criminal investigations, his reporting had never been used in a criminal proceeding.

After receiving clarifying questions from OI in response to the FISA request form, the FBI submitted a revised, formal request for an expedited FISA application on September 30. As described in Chapter Two, an expedited FISA application seeks to have the FISC waive the requirement in its Rules of Procedure that the government submit a proposed application no later than 7 days before it seeks to have the matter considered by the FISC. Requests by the FBI that OI seek an expedited FISA application require the approval of a Deputy Assistant Director( DAD) or higher. In this instance, the expedited request was approved by DAD Strzok. Strzok told the OIG that he approved the request to expedite the FISA because there was a sense of urgency to complete the investigation as quickly and thoroughly as possible. According to Strzok, the team was not given an explicit instruction to finish the investigation before Election Day or Inauguration Day, but everyone involved understood the importance of moving quickly.

At the same time the Crossfire Hurricane team moved forward with a FISA request targeting Carter Page, FBI documents reflect that the team was also interested in a FISA request targeting George Papadopoulos to further the investigation. However, FBI OGC was not supportive. Instant messages between the OGC Attorney and the OGC Unit Chief indicate that they, the Intel Section Chief and Strzok, agreed that there was not a sufficient basis for FISA surveillance targeting Papadopoulos. The instant messages also show that the Intel Section Chief and Strzok were much more interested in pursuing the request for FISA coverage targeting Page.

The OGC Unit Chief told the OIG that she recalled that the difference between these two subjects with respect to a potential FISA application was that Carter Page had previous connections with Russian intelligence officers as well as the recent allegations in the Steele reporting that Page was an intermediary between Russia and the Trump campaign. With respect to Papadopoulos, the Crossfire Hurricane team had the information from the FFG that mentioned him, but no specific information that Papadopoulos was a person being directed by the Russians. Ultimately, the Crossfire Hurricane team did not seek FISA authority targeting Papadopoulos.
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