January 29, 2022
Will Carter Page succeed in fending off dismissal of his case against the DOJ, FBI, and litany of Crossfire Hurricane agents?
By Margot Cleveland • The Federalist
Over last weekend, attorneys for Carter Page filed responses to motions to dismiss filed by the FBI and eight agents involved in the Crossfire Hurricane investigation that led to the government illegally obtaining four surveillance warrants to spy on Page.
In November 2020, Page, who had briefly served as a volunteer advisor to the Trump campaign, sued the defendants in a D.C. federal court alleging violations of the Fourth Amendment, the Patriot Act, and the Privacy Act. In response, the government and the individual defendants argued Page’s claims were time-barred or that Page had no legal grounds on which to sue. Page’s responses counter those arguments while providing five key take-aways.
With Spygate developments few and far between, it is easy to forget the breadth and depth of the scandal. The briefs docketed on Saturday in Page’s lawsuit against the FBI and the agents involved in obtaining the four Foreign Intelligence Surveillance Act (FISA) surveillance warrants serve as an important refresher of what our government did to an innocent man in the hopes of “getting Trump.” As Page’s brief against the individual defendants noted in its opening, this case is extraordinary because they “were not mere field agents bending the rules to pursue criminals, but rather the highest level FBI executives.”
Even the case name, Page v. Comey, confirms the truth of that assertion, with former FBI Director James Comey named as one of the eight defendants. Page’s brief details Comey’s alleged involvement in the Department of Justice obtaining four FISA surveillance orders against the Naval Academy graduate, stressing that Comey was not merely a “supervisory” who signed the FISA applications, but was personally involved.
Establishing Comey and the other agents’ personal involvement proved a key feature of the briefs, because, to avoid dismissal of the complaint, Page needed to show the allegations of the complaint could reasonably support a finding that the individual defendants did more than merely supervise employees who violated Page’s Fourth Amendment rights and rights under FISA.
The 70-page omnibus brief addressing the claims against the individual defendants detailed the personal involvement of each. For instance, for the former FBI director, the brief stressed that “on or about August 17, 2016, Comey received information from the CIA establishing that Dr. Page was an ‘operation contact’ for the CIA during the period of 2008-2013.”
Comey also knew from a September 7, 2016, Central Intelligence Agency (CIA) communique that Hillary Clinton had approved “a plan concerning U.S. Presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private mail server,” according to the court filing. Comey nonetheless approved the use of the fabricated Christopher Steele dossier to obtain the FISA surveillance orders, and eventually signed three of the four FISA surveillance applications.
Next named in Page’s lawsuit was Andrew McCabe, a former deputy director of the FBI. McCabe was also personally involved in obtaining the illegal FISA surveillance order, according to Page’s most recent court filing.
Among other things, McCabe signed the affidavit the FBI submitted in support of the final FISA application. McCabe’s involvement went further, Page’s attorneys argued, pointing out that he hosted an August 15, 2016 meeting with co-defendants Peter Strzok and Lisa Page discussing “an insurance policy” to prevent a Donald Trump election, and he had approved the FISA applications even though he knew they omitted Carter Page’s past assistance to the CIA.
The brief next discussed Kevin Clinesmith’s involvement in the FISA abuse. Clinesmith, who served as an assistant general counsel in the FBI’s Office of General Counsel, falsely told the FBI that Page was never a source. Then, when asked for written confirmation of that representation, Clinesmith altered the text of the email he had received from the CIA liaison, making the email read that Page was “not a ‘source.’”
Clinesmith then forwarded the altered email to the FBI. Clinesmith later pleaded guilty to making a false statement related to this conduct.
Strzok and Lisa Page’s involvement in the FISA surveillance scheme received attention next. Strzok, who served at the time as the FBI deputy assistant director for counterintelligence, also knew of the CIA’s warning that Clinton had approved a plan to claim Trump had colluded with Russia to “distract the public” from her misuse of a private server. Strzok also stated an intention to “stop” Trump from becoming president and discussed “an insurance policy” to prevent a Trump election.
Lisa Page’s personal involvement mirrored that of Strzok’s, but in addition she attended a briefing with McCabe, at which “Bruce Ohr advised them that Steele’s work product was not for the U.S. Government but, rather, was political opposition research for a private political party.”
The briefs repeated this process for the remaining individual defendants: Joe Pientka, who served as a supervisory agent on the Crossfire Hurricane team; Stephen Somma, an FBI agent who represented himself as “Steve Holt” to Page; and Brian Auten, an FBI supervisory intelligence analyst.
Pientka, Carter Page stressed, had falsely certified that the information in the first FISA warrant was verified for accuracy and later failed to correct the application, even after learning in November 2016 from Ohr that Steele was not a reliable source and had been paid to conduct the opposition research against Trump.
The response filed on Saturday also detailed Somma’s involvement, noting that he had pushed initially for the FISA warrant. Further, according to Page, “Defendant Somma personally provided incomplete, inaccurate, and conflicting information to the DOJ Office Attorney who asked whether Dr. Page had been a source for the CIA.”
In fact, according to Page, Somma actually knew he had served as an “operational contact” for the CIA from 2008-2013, but failed to accurately describe that relationship to others. Somma also did not inform the FISA court that Igor Danchenko, Steele’s primary sub-source for his fabricated dossier, contradicted Steele’s supposed intel.
The final defendant, Auten, also held personal responsibility for violating Page’s Fourth Amendment rights and violations of the Patriot Act, according to Page’s lawyer. Auten “played an instrumental role along with the agents preparing the FISA applications—including reviewing the probable cause section of the applications.”
In preparing the applications, Auten “falsely enhanced the credibility of information obtained from Steele,” according to Page, writing “that information from Steele had been ‘corroborated and used in criminal proceedings,’ although none of Steele’s past reporting as an informant had been corroborated and had never been used in any criminal proceedings.”
Auten also “intentionally failed to disclose the negative feedback that he had received from British Intelligence Service colleagues regarding Steele,” according to the court filing, including a caution from “Steele’s former colleagues that Steele exercised ‘poor judgment’ and pursued as sources ‘people with political risk but no intel value.’”
Even with the details noted above and additional ones included in the 100-plus pages of combined briefs filed by Page’s legal team this weekend, so much remains unknown because the government holds sole possession of the information. That lack of knowledge, Page argued in his briefs, makes dismissal of his lawsuit at this stage premature.
“It is also abundantly clear that there is a trove of currently non-public documents and facts that relate to Dr. Page’s claims, which are presently in the exclusive possession of the Individual Defendants and the United States and its agencies, but which will undoubtedly further support and vindicate Dr. Page’s claims,” Page’s attorney wrote.
Then, as a perfect illustration of the point, Page’s legal team pointed to the fact that after they initially filed suit in November 2020, “additional facts concerning Defendant Clinesmith’s role with respect to the alteration of the email were disclosed when the Department of Justice filed its sentencing memorandum in Defendant Clinesmith’s criminal prosecution, including internal FBI emails not referenced in the Horowitz Report.”
Also unknown at this time is which defendants, if any, leaked information to the press. The brief suggests Lisa Page and Strzok hold responsibility for the leaks, noting that “on Monday, April 10, 2017, Defendant Strzok sent [Lisa Page] another text message stating, ‘I had literally just gone to find this phone to tell you I want to talk to you about media leak strategy with DOJ before you go.’”
“Two days later,” the brief continued, Strzok “sent Defendant Lisa Page a text message to alert her that two media articles were coming out about her ‘namesake’ [Dr. Page] and that one was worse than the other.” Then, later the same week, “the Washington Post and the New York Times published articles about Dr. Page and the government’s investigation of him, including that FISA warrants were used,” with Strzok that weekend texting Lisa Page: “article is out!” and “Well done, Page.”
The briefs filed this weekend also stressed that after the FISA warrant was issued, “a stream of information about Dr. Page . . . and his supposed status as a Russian agent working to undermine the nation, began to flood the airwaves and the newsstands.” “The source of that information can only have been the Crossfire Hurricane team,” the brief argued.
In addition to Strzok and Lisa Page, in the separate brief Carter Page’s legal team filed this weekend in response to the government’s motion to dismiss, lawyers claimed that defendants Comey and McCabe also “leaked information and records concerning Dr. Page to media outlets, including but not limited to the existence of the FISA warrants, the contents of the warrant applications, and the results of the warrants, that were protected from disclosure under FISA and the Privacy Act.”
Without discovery, however, Page lacks the ability to establish the party or parties responsible for the leaks with certainty, which supports his argument that dismissing his claims at this point is premature.
Reading Page’s briefs also reminds one of the lopsided battle he faced in trying to clear his name when he went up against the Crossfire Hurricane team. He literally wrote Comey. He reminded the FBI that he had worked with the CIA. He voluntarily submitted to multiple interviews with FBI agents. His lawyer spoke with Clinesmith.
Yet they persisted. It was one individual against the mammoth monstrosity that calls itself the intelligence community.
Now Page is taking on the same monster that is proving itself as regenerative as the mythical hydra. Not only does Page face the federal government, represented by Department of Justice attorneys, but each defendant has his or her own group of powerhouse D.C. lawyers combatting Page’s push for justice, leaving Page’s small legal team fighting against nine separate teams of defense attorneys.
One wonders who is paying for all those private law firms, and whether it is taxpayers?
While Page’s legal team may be outgunned, their briefing proves top-notch, both in its legal advocacy and its ability to point out the absurdity of many of the defendants’ arguments with a flair that cuts through legal niceties.
Early on, Page’s attorneys honed in on the key strategy the defendants seem to have settled on—point the finger at someone else. Each defendant sought to “outdo each other in minimizing their respective roles in the fiasco,” the brief noted, “each claiming their culpability in deceiving the FISC, unlawfully disclosing information, and violating Dr. Page’s rights was too minor to impose civil liability on them.” “If the individual defendants are to be believed,” the brief quipped, “these unlawful and false warrants wrote themselves.”
As quoted from Ian Fleming in “Goldfinger,” “Once is happenstance. Twice is coincidence. The third time it’s enemy action,” crystalized another point by Page’s legal team: that the defendants’ conduct cannot be put down to mistakes or even sloppiness but creates the reasonable inference that they intentionally caused the violation of Page’s rights.
Then, in summing up their argument on behalf of Page, the brief closed by reminding the judge that “the FBI unlawfully used the power of the federal government, in the form of secret, anti-terrorism surveillance tools, to violate the rights of an innocent American.” “It is long past time for the United States to step up to the plate and do right by Dr. Page,” the brief closed.
Whether Carter Page will succeed in fending off dismissal of his case against the DOJ, FBI, and litany of Crossfire Hurricane agents will not be known for some time. The defendants will all have a chance to reply to Page’s briefing, meaning another nine briefs to counter Page’s two court filings.
The district court will then face many tough legal questions, beginning with whether Page waited too long to sue. Next, the court will need to determine whether Page adequately alleged sufficient facts under his various theories of liability and specifically whether each individual defendant holds responsibility for the illegal FISA warrant under an “aiding and abetting” theory.
Carter Page also presents a unique claim against the federal government under The Privacy Act, arguing that his rights were violated by the inspector general when the IG refused to allow Page to review and respond to the report discussing the four FISA warrants obtained against Page.
June 12, 2019
By Sarah Lee • RedState
When Attorney General Bill Barr told Congress in April he believed spying did occur against the Trump campaign, he was referring to the work of the formerly respected FBI division of counterintelligence, where Peter Strzok clocked in every day.
The Washington Free Beacon details the almost mythical history of the division and how now, following its fall from grace as stooges for the powers-that-be that wanted Trump out of the game, it is the focus of the Department of Justice’s special investigation into the origins of the Russia collusion probe.
Two senior counterintelligence officials no longer with the bureau are among likely targets of the investigation by John Durham, U.S. attorney for the District of Connecticut. Both were key managers of the high-profile investigations in 2016 into classified information found on Hillary Clinton’s private email server, and the now-discredited counterspy operation into links between the Trump presidential campaign and Russian government.
A central figure is Peter Strzok, deputy assistant FBI director for the counterintelligence division, who was fired in August. Another key player was his boss, Bill Priestap, assistant FBI director for counterintelligence, who quietly resigned in December.
In the three years since the controversial investigations, the FBI counterintelligence division has sought to rebuild its reputation by conducting aggressive operations untainted by past allegations of liberal political bias through recent high-profile spy cases.
This merry band of partisans has nearly destroyed what was once a highly respected division doing impressive work. In fact, the Free Beacon reports, during the presidency of Bill Clinton onward, the division began to suffer from terrible mishaps of duty.
Since the 1990s, however, FBI counterintelligence has suffered numerous failures. They include botched counterspy investigations into Chinese nuclear spies that stole American warhead secrets; a Chinese double agent who worked as an informant for the FBI in Los Angeles; and, most damaging, failing to uncover FBI turncoat agent Robert Hanssen who worked as an FBI counterspy and Moscow agent undetected for more than 20 years.
Other counterintelligence lapses included a Cuban mole that operated secretly inside for the Defense Intelligence Agency, the loss of more than two dozen recruited CIA assets in China, and the arrests of numerous recruited intelligence agents in Iran beginning in 2010.
Strzok is the newest member who is the source of the division’s ills, and while Barr indicated in his interview with CBS This Morning that he could see a scenario in which these agents felt they were doing what’s right, Strzok is being criticized for being particularly ill-suited to any role in counterintelligence due to extramarital affairs, accepting media favors against FBI policy et al.
The cumulative effect of a department run by employees with loyalty to a political outcome rather than to the work of counterintel to protect their country is highly damaging, reports the Beacon.
“The damage they’ve done to the FBI will last for years,” said former FBI counterspy I.C. Smith.
DeGraffenreid said the fallout from Crossfire Hurricane likely will further weaken an already poor FBI counterintelligence capability. Bureaucratically, the fallout will further erode support for aggressive counterintelligence and dissuade the most capable people from seeking counterspy positions.
Strzok, based on his congressional testimony and publicized text, revealed himself to be ill-suited for counterintelligence. The FBI counterspy came across as “an arrogant bureaucrat” in his congressional testimony, deGraffenreid said. “He’s not George Smiley.”
Also, as outlined by the Justice IG, the FBI’s protective bureaucratic culture is in need of correcting.
“There’s extreme bureaucratization there with a culture that thinks the bureau is something other than the United States,” said deGraffenreid who worked with senior FBI officials in government for more than 30 years.
“More than any other government bureaucracy, the FBI will openly lie to protect the FBI’s reputation,” he said, adding that of all the intelligence disciplines, counterintelligence requires the smartest and best analysts and operators free of political bias like that shown by Strzok.
It is beyond frightening that one of the most important and secretive divisions within the federal police force was thick with partisanship and so far removed from their proper mission that they would engage in spy games to unseat a president. But that appears to be exactly what happened. We’ll know more when all the subsequent “investigations into the investigators” are released.
But one thing is already certain: the FBI needs to do a little housecleaning. Before this is all over, I suspect we’ll find other agencies do as well.
August 22, 2018
By Conor Friedersdorf • The Atlantic
This is the story of John Brennan’s CIA spying on Congress and getting away with it.
Last March, Senator Dianne Feinstein accused the CIA of spying on the Senate intelligence committee as it labored to finalize its report on the torture of prisoners. “I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution,” she said. “I have asked for an apology and a recognition that this CIA search of computers used by its oversight committee was inappropriate. I have received neither.”
CIA Director John Brennan denied the charge. “Nothing could be further from the truth,” he said. “We wouldn’t do that. That’s just beyond the scope of reason in terms of what we’d do.” It would be months before his denial was publicly proved false. “An internal investigation by the C.I.A. has found that its officers penetrated a computer network used by the Senate Intelligence Committee in preparing its damning report on the C.I.A.’s detention and interrogation program,” The New York Times reported. “The report by the agency’s inspector general also found that C.I.A. officers read the emails of the Senate investigators and sent a criminal referral to the Justice Department based on false information.”
A statement issued Thursday morning by a C.I.A. spokesman said that Continue reading →
December 17, 2015
By Dustin Volz • Reuters
The Federal Bureau of Investigation has used a secretive authority to compel Internet and telecommunications firms to hand over customer data including an individual’s complete web browsing history and records of all online purchases, a court filing released Monday shows.
The documents are believed to be the first time the government has provided details of its so-called national security letters, which are used by the FBI to conduct electronic surveillance without the need for court approval.
The filing made public Monday was the result of an 11-year-old legal battle waged by Nicholas Merrill, founder of Calyx Internet Access, a hosted service provider, who refused to comply with a national security letter (NSL) he received in 2004. Continue reading →