An interesting ruling, brief and order from the FISA Court (Judge Boasberg) released today [pdf here] reflects an admission by the DOJ the 2nd and 3rd FISA renewal against U.S. person Carter Page were invalid.
The “DOJ assesses that with respect to the applications in [April and June 2017] “if not earlier, there was insufficient predication to establish probable cause to believe that [Carter]Page was acting as an agent of a foreign power.””
The original FISA application was October 21st, 2016. The first FISA renewal was January 12, 2017 (84 days from origination). The second renewal was April 7, 2017 (85 days from prior renewal). The third renewal was on June 29th, 2017 (83 days from prior renewal).
The DOJ has now attested to the FISC the FISA application on April 7, 2017, and the FISA application of June 29th were invalid. However, the DOJ has not taken a position on the validity of the original application, Oct 21, 2016, or the first renewal of January 12, 2017.
As with almost everything in the world of FISA there is a great deal of interesting language surrounding how the FISC brief & order by James Boasberg is written. Each paragraph and sentence should be reviewed carefully to avoid making cursory mistakes in analysis.
The FBI has agreed to “sequester” all information and evidence received as an outcome of all the FISA warrants issued against Carter Page. Meaning, all material, in any court proceeding or subsequent secondary warrant on another target, application, filing, motion, prosecution or downstream use of the information gathered and obtained; the FBI will now assemble all materials, from any location, that stemmed from the Carter Page FISA warrants.
In essence, the FBI will now look and retrieve any evidence that stemmed as an outcome of the Carter Page FISA warrant. Some of this material *may* (perhaps likely) will be in the Special Counsel Mueller investigation.
[ie. a proverbial search for the fruit of a poisonous tree. Where is it?]
Once the sequestration has taken place, the DOJ will then be able to determine to the court what collateral impacts they have identified.
The DOJ has yet to inform the court how exactly they plan to do this, or when they anticipate to have completed the task. However, the FBI has agreed to undertake this sequestration for ALL of the FISA applications, not just the two renewals they now admit are invalid. READ:
The issue of the validity for the October 21st, 2016, originating FISA application; and/or the issue of the validity for the first renewal January 12th, 2017, is not yet determined.
The FISC brief outlines the Office of the Inspector General (OIG), who is currently doing a review of all FISA applications, will be the one assist the DOJ in reaching that conclusion.
Worth noting in the second paragraph (above): “pending further review of the OIG report and the outcome of any investigations or litigation.” This was a statement made by the DOJ in response to the FISC. It is possible the ongoing investigation by U.S. Attorney John Durham is part of this encompassing statement.
The second page of the order by Judge Boasberg is essentially him relaying the law surrounding FISA applications; warning the DOJ that false material submissions -which the DOJ has just admitted- are illegal; and Boasberg wanting to know answers to the same questions many of us have.
Essentially, Judge Boasberg is asking: what did the FBI do with the Title-1 surveillance warrant they received from the court? What material did they collect? Was that material then used in other proceedings and: “disseminated to DOJ prosecutors and other persons outside the FBI”?
The presiding fisa judge also wants to know what the DOJ is doing. Explain what “further review of the OIG report” means? Inform the court what “related investigations and litigation” pertains to, etc:
A note of caution. It seems incredulous the DOJ cannot apply the same determination of invalid construct to the original FISA application and first renewal. However, the key issue is with the Steele Dossier – the essential evidence underpinning the FISA itself; and the key question is when did the FBI and/or DOJ know with certainty the Steele Dossier was unfounded and did not merit legal inclusion for the warrant?
By their current admissions, as outlined by Judge Boasberg, the DOJ is admitting that between January 12th and April 7th current investigators are certain there was sufficient information debunking the Steele Dossier, known to the former FBI and DOJ officials, such that no further application (renewal) should have taken place.
Interestingly this timeline and DOJ admission would include the Mueller investigation use of any FISA derived material or evidence when it began May 17, 2017; that is, if the Mueller probe used the Carter Page FISA evidence for any derivative warrant therein.
It seems likely the Mueller probe did use the Page warrant, as former FBI Deputy Director Andrew McCabe and former DOJ Deputy AG Rod Rosenstein authorized the June 29, 2017, final renewal AFTER the special counsel was in place. That renewal has been admitted as invalid. There could be considerable consequences.