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  Horowitz Report Chapter 5 Section II

      Preparation and Approval of the First FISA Application A. Initial Drafts
      see https://www.justice.gov/storage/120919-examination.pdf
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II. Preparation and Approval of the First FISA Application

1Following receipt of the FISA request form on September 22, the OI Attorney immediately began work on the FISA application, preparing the initial drafts with information provided by the FBI. The preparation and approval process for the application took four weeks to complete. We were told that the application received more attention and scrutiny than the typical FISA application in terms of additional layers of review and the number of high-level officials who read the application. We describe this process in detail below.

A. Initial Drafts

On or about September 23, the OI Attorney began work on the initial draft FISA application. At this early stage of the drafting process, Evans told us that he instructed the OI Attorney and OI Unit Chief to handle the Carter Page FISA application as they would any other FISA application-to make sure the work was as thorough as possible so that NSD could answer the legal question of whether the facts meet the probable cause standard-and leave any policy questions to the decision makers down the road.

As described in Chapter Two, the read copy of a FISA application is prepared by an OI attorney using information provided by the FBI, primarily the case agent. The OI attorney relies heavily on the case agent to supply the necessary information and identify significant issues. NSD officials told us that the nature of FISA practice requires that OI rely on the FBI agents who are familiar with the investigation to provide accurate and complete information. Unlike federal prosecutors, OI attorneys are usually not involved in an investigation, or even aware of a case 's existence, unless and until OI receives a request to initiate a FISA application. Once they receive a request, OI attorneys generally interact with field offices remotely and do not have broad access to FBI case files or sensitive source files. According to NSD officials, even if OI received broader access to FBI case files, the number of FISA requests that OI attorneys are responsible for handling makes it impracticable for an OI attorney to become intimately familiar with an FBI case file, particular one about which they have had little to no prior awareness. In addition, NSD told us that OI attorneys are not in the best position to sift through a voluminous FBI case file because they do not have the background knowledge and context to meaningfully assess all the information.

In this case, based upon the information the FBI initially provided in the September 22 draft FISA request, the OI Attorney sent his first questions to the OGC Attorney on September 23. Case Agent 1 sent back responses the same day. Over the course of the next two weeks, the OI Attorney exchanged various emails and telephone calls with the FBI and prepared initial drafts using information principally provided by Case Agent 1 and, in a few instances, by the OGC Attorney or other Crossfire Hurricane team members. The culmination of this process led to the first drafts of the FISA application being shared with OI and NSD management on October 5 and 6, 2016.

In these initial drafts, the statement of facts in support of probable cause asserted that the Russians were attempting to undermine and influence the upcoming U.S. presidential election, and that the FBI believed Carter Page was acting in conjunction with the Russians in those efforts. The statement of facts supporting probable cause was broken down into four main elements:

( 1) The efforts of Russian Intelligence Services( RIS) to influence the upcoming 2016 U.S. presidential election

( 2) The Russian government 's attempted coordination with members of the Trump campaign, which was based on the FFG information concerning the alleged offer or suggestion of assistance from the Russians to someone associated with the Trump campaign;

( 3) Page 's historical connections to Russia and RIS, which included his business dealings with the Russian energy company Gazprom, his professional relationships with known Russian intelligence officers, and his disclosure to the FBI and a Russian Minister that he was Male-1 in an indictment against Russian intelligence officers; and

( 4) Page 's alleged coordination with the Russian government on 2016 U.S. presidential election activities, based on some of the reporting from Steele.

In addition, the statement of facts described Page 's denials of coordination with the Russian government as reported in two news articles and as asserted by Page in a September 25 letter to the FBI Director. Except for the addition of new information from an October 2016 CHS operation discussed later, the read copy and final application submitted to the FISC were organized in the same way.

In support of the fourth element concerning Carter Page 's alleged coordination with the Russian government on 2016 U.S. presidential election activities, the drafts of the application-and later the read copy and final application-relied entirely on information from Steele that Steele said was provided to him by his Primary Sub-source. Specifically, the following aspects of Steele 's Reports were used to support the application:

• Compromising information about Hillary Clinton had been compiled for many years, was controlled by the Kremlin, and the Kremlin had been feeding information to the Trump campaign for an extended period of time( Report 80);

• During his July 2016 trip to Moscow, Carter Page attended a secret meeting with Igor Sechin, Chairman of Rosneft and close associate of Putin, to discuss future cooperation and the lifting of Ukraine-related sanctions against Russia; and a secret meeting with Igor Divyekin, another highly placed Russian official, to discuss sharing compromising information about Clinton with the Trump campaign( Report 94);

• Page was an intermediary between Russia and the Trump campaign 's then manager( Manafort) in a"" well-developed conspiracy'' of cooperation, which led, with at least Page 's knowledge and agreement, to Russia 's disclosure of hacked DNC emails to Wikileaks in exchange for the Trump campaign 's agreement to sideline Russian intervention in Ukraine as a campaign issue( Report 95); and

• Russia released the DNC emails to Wikileaks in an attempt to swing voters to Trump, an objective conceived and promoted by Carter Page and others( Report 102).

The development of the statement of facts concerning Steele 's reporting resulted from the back-and-forth exchange described above between the OI Attorney and the FBI, during which the OI Attorney asked many questions about Page, as well as about Steele 's reporting and the structure and access of his source network.

Among the questions regarding Carter Page, on September 29, the OI Attorney asked the Crossfire Hurricane team,"" do we know if there is any truth to Page 's claim that he has provided information to[ another U.S. government agency]- was he considered a source/asset/whatever? '' According to the OI Attorney, it would have been a significant fact to disclose to OI if Page had interactions with the other U.S. government agency that overlapped in time with his interactions with known Russian intelligence officers described in the FISA applications because it would raise the issue of whether Page interacted with the Russian intelligence officers at the behest of the other U.S. government agency or with the intent to assist the U.S. government. In response to the OI Attorney 's question, Case Agent 1 advised him that Page did meet with the other U.S. government agency, but that the interactions took place while Page was in Moscow( which was between 2004 and 2007) and were"" outside scope.'' Based upon this response, the OI Attorney did not include information about Page 's prior interactions with the other U.S. government agency in the application. However, as fully described later in this chapter, the information Case Agent 1 provided to the OI Attorney was incomplete, inaccurate, and in certain respects contrary to the information the other agency provided to the Crossfire Hurricane team on August 17, 2016 and that Carter Page had provided to the FBI in 2009 and 2013. This information indicated that Page had a prior relationship with the other U.S. government agency and that his interactions with the other agency occurred more recently than the 2004-2007 time period and actually overlapped with information alleged in the FISA application concerning his alleged ties to Russian intelligence officers.

With respect to Steele, when the drafting process began, the Crossfire Hurricane team had only just begun the process of conducting the evaluation process( described in Chapters Four and Six) to assess Steele, his source network, and the information provided in his reports. That source evaluation process and the FISA drafting process were taking place simultaneously, and the FBI had not corroborated the Steele information being considered for the FISA application. Evans and other witnesses told us that the fact that the source information in the FISA application had not yet been corroborated was not unusual in the FISA context. Officials told us that a significant fact in their consideration of the Steele information for the FISA application was that the Steele reporting on Carter Page appeared to be consistent with the information from the FFG that came from an independent reporting stream.

Evans and other witnesses also emphasized that in the absence of corroboration, it was particularly important for the FISA application to articulate to the court the reliability of the source as assessed by the FBI. As the OGC Unit Chief advised Case Agent 1 on September 22 during the drafting of the FISA request form,"" One last thing- we probably need a little bit more on the source-[ REDACTED]. Since this is essentially a single source FISA, we have to give a fulsome description of the source.'' Therefore, on September 29, during the early drafting phase, Case Agent 1 provided OI with the following characterization of Steele for inclusion in the FISA application:

This information comes from a sensitive FBI source whose reporting has been corroborated and used in criminal proceedings, and who obtains information from a number of ostensibly well-positioned sub-sources. The scope of the source 's reporting is from 20 June 2016 through 20 August 2016.

The OI Attorney incorporated this information with other information the case agent provided to draft the following in the application:

[ Steele] has been an FBI source since in or about October 2013.[ Steele 's] reporting has been corroborated and used in criminal proceedings and the FBI assesses[ Steele] to be reliable.[ Steele] has been compensated approximately$ 95,000 and the FBI is unaware of any derogatory information pertaining to[ Steele].

The final Carter Page application included this source characterization statement:

Steele is a former[ REDACTED] and has been an FBI source since in or about October 2013.[ Steele 's] reporting has been corroborated and used in criminal proceedings and the FBI assesses[ Steele] to be reliable.[ Steele] has been compensated approximately$ 95,000 by the FBI and the FBI is unaware of any derogatory information pertaining to[ Steele].

The OI Attorney told us that he does not have access to the CHS files of FBI sources and, therefore, tries to adhere closely to what a case agent sends him when he drafts a source characterization statement for a FISA application. He stated that he also relies on the fact that the Woods Procedures require that the source handling agent approve the language. However, as described later in this chapter, the source characterization statement in the application overstated the significance of Steele 's past reporting and was not approved by the FBI agent who served as Steele 's handling agent.

To further address reliability, the OI Attorney sought information from the FBI to describe the source network in the FISA application. On multiple occasions, the OI Attorney asked the FBI questions about the sub-sources, including in a September 30, 2016 email in which he asked Case Agent 1 and the Crossfire Hurricane team:"" If the reporting is being made by a primary source, but based on sub-sources, why is it reliable-even though second/third hand? '' The OIG did not find a written response to this specific question, and the OI Attorney did not recall a response. However, the OI Attorney told us that the Crossfire Hurricane team eventually briefed him on the sub-source information they learned from Steele after their early October meeting with him( described in Chapter Four). He also received a written summary of this information that the Supervisory Intel Analyst prepared shortly after the October meeting. The OI Attorney told us that based on the information the FBI provided, he thought at the time that some of the sub-sources were"" definitely'' in a position to have had access to the information Steele was reporting.

Ultimately, the initial drafts provided to OI management, the read copy, and the final application submitted to the FISC contained a description of the source network that included the fact that Steele relied upon a Primary Sub-source who used a network of sub-sources, and that neither Steele nor the Primary Sub-source had direct access to the information being reported. The drafts, read copy, and final application also contained a separate footnote on each sub-source with a brief description of his/her position or access to the information he/she was reporting. The Supervisory Intel Analyst assisted the case agent in providing information on the sub-sources and reviewed the footnotes for accuracy. According to the OI Attorney, the application contained more information about the sources than is typically provided to the court in FISA applications. According to Evans, the idea was to present the source network to the court so that the court would have as much information as possible.
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