Former vice president Joe Biden’s extraordinary campaign memo this week imploring U.S. news media to reject the allegations surrounding his son Hunter’s work for a Ukrainian natural gas company makes several bold declarations.
The memo by Biden campaign aides Kate Bedingfield and Tony Blinken specifically warned reporters covering the impeachment trial they would be acting as “enablers of misinformation” if they repeated allegations that the former vice president forced the firing of Ukraine’s top prosecutor, who was investigating Burisma Holdings, where Hunter Biden worked as a highly compensated board member.
Biden’s memo argues there is no evidence that the former vice president’s or Hunter Biden’s conduct raised any concern, and that Prosecutor General Viktor Shokin’s investigation was “dormant” when the vice president forced the prosecutor to be fired in Ukraine.
calls the allegation a “conspiracy theory” (and, in full disclosure, blames my reporting for
the allegations surfacing last year.)
the memo omits critical impeachment testimony and other evidence that paint a
far different portrait than Biden’s there’s-nothing-to-talk-about-here rebuttal.
are the facts, with links to public evidence, so you can decide for yourself.
Fact: Joe Biden
admitted to forcing Shokin’s firing in March 2016.
is irrefutable, and not a conspiracy theory, that Joe Biden bragged in
this 2018 speech to a foreign policy group that he threatened in March 2016
to withhold $1 billion in U.S. aid to Kiev if then-Ukraine’s president Petro
Poroshenko didn’t immediately fire Shokin.
“I said, ‘You’re not getting the billion.’ I’m going to be
leaving here in, I think it was about six hours. I looked at them and said:
‘I’m leaving in six hours. If the prosecutor is not fired, you’re not getting
the money,’” Biden told the 2018 audience in recounting what he told Poroshenko
“Well, son of a bitch, he got fired. And they put in place
someone who was solid at the time,” Biden told the Council on Foreign Relations
Fact: Shokin’s prosecutors were actively investigating
Burisma when he was fired.
While some news organizations cited by the Biden memo have reported
the investigation was “dormant” in March 2016, official files released by the
Ukrainian prosecutor general’s office, in fact, show there was substantial investigative
activity in the weeks just before Joe Biden forced Shokin’s firing.
The corruption investigations into Burisma and its founder began
in 2014. Around the same time, Hunter Biden and his U.S. business partner Devon
Archer were added
to Burisma’s board, and their Rosemont Seneca Bohais firm began receiving regular
$166,666 monthly payments, which totaled nearly $2 million a year. Both banks
records seized by the FBI in America and Burisma’s
own ledgers in Ukraine confirm these payments.
To put the payments in perspective, the annual amounts paid by
Burisma to Hunter Biden’s and Devon Archer’s Rosemont Seneca Bohais firm were 30
times the average median annual household income for everyday Americans.
For a period of time in 2015, those investigations were stalled as Ukraine was creating a new FBI-like law enforcement agency known as the National Anti-Corruption Bureau ((NABU) to investigate endemic corruption in the former Soviet republic.
There was friction between NABU and the prosecutor general’s office for a while. And then in September 2015, then-U.S. Ambassador to Ukraine Geoffrey Pyatt demanded more action in the Burisma investigation. You can read his speech here. Activity ramped up extensively soon after.
In December 2015, the prosecutor’s files show, Shokin’s office
transferred the evidence it had gathered against Burisma to NABU for investigation.
In early February 2016, Shokin’s office secured a court order
allowing prosecutors to re-seize some of the Burisma founder’s property, including
his home and luxury car, as part of the ongoing probe.
Two weeks later, in mid-February 2016, Latvian law enforcement sent
this alert to Ukrainian prosecutors flagging several payments from Burisma
to American accounts as “suspicious.” The payments included some monies to Hunter
Biden’s and Devon Archer’s firm. Latvian
authorities recently confirmed it sent the alert.
Shokin told both me and ABC News that just before he was fired under pressure from Joe Biden he also was making plans to interview Hunter Biden.
Fact: Burisma’s lawyers in 2016 were pressing U.S.
and Ukrainian authorities to end the corruption investigations.
Burisma’s main U.S. lawyer John Buretta acknowledged in this
February 2017 interview with a Ukraine newspaper that the company remained under
investigation in 2016, until he negotiated for one case to be dismissed and the
other to be settled by payment of a large tax penalty.
released under an open records lawsuit show Burisma legal team was
pressuring the State Department in February 2016 to end the corruption allegations
against the gas firm and specifically invoked Hunter Biden’s name as part of
the campaign. You can read those documents here.
In addition, immediately after Joe Biden succeeded in getting
Shokin ousted, Burisma’s lawyers sought to meet with his successor as chief
prosecutor to settle the case. Here
is the Ukrainian prosecutors’ summary memo of one of their meetings with
the firm’s lawyers.
is substantial evidence Joe Biden and his office knew about the Burisma probe and
his son’s role as a board member.
The New York Times reported in this December 2015 article that the Burisma investigation was ongoing and Hunter Biden’s role in the company was undercutting Joe Biden’s push to fight Ukrainian corruption. The article quoted the vice president’s office.
In addition, Hunter Biden acknowledged in
this interview he had discussed his Burisma job with his father on one
occasion and that his father responded by saying he hoped the younger Biden
knew what he was doing.
And when America’s new ambassador to Ukraine was being confirmed
in 2016 before the Senate she was specifically
advised to refer questions about Hunter Biden, Burisma and the probe to Joe
Biden’s VP office, according to these State
Ethics rules requires government officials to avoid taking policy actions affecting
of Government Ethics rules require all government officials to recuse
themselves from any policy actions that could impact a close relative or cause
a reasonable person to see the appearance of a conflict of interest or question
“The impartiality rule requires an employee to consider appearance
concerns before participating in a particular matter if someone close to the employee
is involved as a party to the matter,” these rules state. “This requirement to
refrain from participating (or recuse) is designed to avoid the appearance of favoritism
in government decision-making.”
State Department officials testified the Bidens’ dealings in Ukraine created the
appearance of a conflict of interest.
In House impeachment testimony, Obama-era State Department officials declared the juxtaposition of Joe Biden overseeing Ukraine policy, including the anti-corruption efforts, at the same his son Hunter worked for a Ukraine gas firm under corruption investigation created the appearance of a conflict of interest.
In fact, deputy assistant secretary George Kent said he was so
concerned by Burisma’s corrupt reputation that he blocked
a project the State Department had with Burisma and tried to warn Joe
Biden’s office about the concerns about an apparent conflict of interest.
Likewise, the House Democrats’ star impeachment witness, former U.S. Ambassador Marie Yovanovich, agreed the Bidens’ role in Ukraine created an ethic issue. “I think that it could raise the appearance of a conflict of interest,” she testified. You can read her testimony here.
Fact: Hunter Biden acknowleged he
may have gotten his Burisma job solely because of his last name.
interview last summer, Hunter Biden said it might have been a “mistake” to
serve on the Burisma board and that it was possible he was hired simply because
of his proximity to the vice president.
your last name wasn’t Biden, do you think you would’ve been asked to be on the
board of Burisma?,” a reporter asked.
don’t know. I don’t know. Probably not, in retrospect,” Hunter Biden
answered. “But that’s — you know — I don’t think that there’s a lot of
things that would have happened in my life if my last name wasn’t Biden.”
law enforcement reopened the Burisma investigation in early 2019, well before
President Trump mentioned the matter to Ukraine’s new president Vlodymyr
This may be the single biggest under-reported fact in the impeachment scandal: four months before Trump and Zelensky had their infamous phone call, Ukraine law enforcement officials officially reopened their investigation into Burisma and its founder.
The effort began independent of Trump or his lawyer Rudy Giuliani’s legal work. In fact, it was NABU – the very agency Joe Biden and the Obama administration helped start – that recommended in February 2019 to reopen the probe.
director Artem Sytnyk made
this announcement that he was recommending a new notice of suspicion be opened
to launch the case against Burisma and its founder because of new evidence
uncovered by detectives.
Ukrainian officials said that new evidence included records suggesting a possible money laundering scheme dating to 2010 and continuing until 2015.
later in March 2019, Deputy Prosecutor General Konstantin Kulyk officially
notice of suspicion re-opening the case.
Reuters recently quoted Ukrainian officials as saying the ongoing
probe was expanded to allegations of theft of public funds.
The implications of this timetable are significant to the Trump impeachment trial because the president couldn’t have pressured Ukraine to re-open the investigation in July 2019 when Kiev had already done so on its own, months earlier.
the U.S. presidential race began roaring to life in 2016, authorities in the
former Soviet republic of Latvia flagged a series of “ suspicious” financial
transactions to Hunter Biden and other colleagues at a Ukrainian natural gas
company and sought Kiev’s help investigating, according to documents and
The Feb. 18, 2016 alert to Ukraine came from the Latvian prosecutorial agency responsible for investigating money laundering, and it specifically questioned whether Vice President Joe Biden’s younger son and three other officials at Burisma Holdings were the potential beneficiaries of suspect funds.
Office for Prevention of Laundering of Proceeds Derived from Criminal Activity
… is currently investigating suspicious activity of Burisma Holdings Limited,”
the Latvian agency also known as the FIU wrote Ukraine’s financial authorities.
memo was released to me by the Ukrainian General Prosecutor’s Office and
confirmed by the Latvian embassy to the United States.
authorities said they did not get any incriminating information back from
Ukraine to warrant further investigation and did not take additional action in
the memo adds to the mounting evidence that there was ongoing investigative
activity surrounding Burisma Holdings and Hunter Biden’s compensation as a
board member in the weeks just before Joe Biden forced the firing of the Ukraine
prosecutor overseeing the Burisma investigation in spring 2016.
Latvian law enforcement memo identified a series of loan payments totaling
about $16.6 million that were routed from companies in Beliz and the United
Kingdom to Burisma through Ukraine’s PrivatBank between 2012 and 2015.
flagged funds were “partially transferred” to Hunter Biden, a board member at
Burisma since May 2014, and three other officials working for the Ukrainian
natural gas company, the Latvian memo said.
letter asked Ukrainian officials for any evidence about whether the funds were
involved in corruption and whether Ukrainian officials were investigating
Burisma and the recipients of the money.
the grounds of possible legalization of proceeds derived from criminal activity
and corruption, please grant us permission to share the information included in
the reply to this request with Latvian law enforcement entities for
intelligence purposes only,” the letter said.
Saburovs, the Third Secretary at the Latvian embassy in Washington, confirmed
his country flagged the transactions in February 2016 after seeing public
reports that Burisma was under investigation in Ukraine and that Hunter Biden
served on the company’s board. He said Latvia did not receive any evidence back
from Ukraine to further its investigation.
“The Latvian FIU (Financial Intelligence Unit) is the institution which receives, processes, and analyses reports on banking transactions as well as conducts information exchange with foreign FIUs,” he explained. “If a matter comes to public attention as it did here, the FIU processes that information.
“In this case, the Latvian FIU reached out to its Ukrainian counterpart seeking additional clarifications,” he added. “Information was received, yet no incriminatory evidence for further analysis was provided by the Ukrainian authorities.”
Saburovs said authorities in his
country could find no evidence they flagged the same transactions to U.S.
authorities even though Hunter Biden and two others named in the letter were
Americans and the U.S. firm, Rosemont Seneca Bohais that was connected to
Hunter Biden, routinely received monthly payments totaling more than $166,600 from
“We do not possess such information,” he said when asked about
contacts with U.S. officials.
A lawyer for Hunter Biden and Joe Biden’s campaign did not
respond to requests Monday seeking comment.
The Latvian correspondence adds to a growing body of evidence
that questions and investigations of Burisma were swirling in early 2016 just
before Joe Biden used his authority as vice president to force the firing of Ukraine
Prosecutor General Viktor Shokin in March 2016 by threatening to withhold $1 billion in U.S. aid.
Shokin was overseeing a wide-ranging Ukrainian investigation of
Burisma and has said
he was making plans to interview Hunter Biden when he was fired by
Ukraine’s president and parliament in March 2016 under pressure from Joe Biden.
Biden and his defenders have said he forced the firing of Shokin
because the Ukraine prosecutor was an ineffective corruption fighter; Shokin
alleges he was dismissed because he wouldn’t end the Burisma probe.
The Biden family has
repeatedly denied any wrongdoing, with Jill Biden offering the latest defense of her son this past weekend. “I know my son. I know my
son’s character. Hunter did nothing wrong. And that’s the bottom line,” she
But recently, multiple State Department witnesses testified during the impeachment hearings against
President Trump that Hunter Biden’s role at Burisma while his father oversaw U.S.-Ukraine
policy as vice president created the appearance of a conflict of interest. One
testified e even blocked a project with Burisma because State was concerned
about allegations of corruption.
When I first
divulged Joe Biden’s role in Shokin’s firing last year, Democrats and their
allies in the media and Ukrainian civil society organizations claimed it was no
big deal because the Burisma investigation in Ukraine was dormant at the time
Biden took action.
But since that time, significant evidence has emerged that the
investigation was, in fact, active and that Burisma itself had concerns about
the corruption allegations swirling around it.
For instance, Ukrainian prosecutors confirmed in December 2015
they transferred their investigative files to detectives at the National
Anti-Corruption Bureau of Ukraine to pursue several leads.
On Feb. 2, 2016, the Ukraine prosecutor general’s office secured a court order to re-seize the assets of Burisma Holdings founder Mykola Zlochevsky. Officers went to the home, placed seizure notices and took items from the home that included a luxury car, officials said.
About two weeks later, the Latvian suspicious financial transactions memo was transmitted to Ukrainian authorities.
And then in late February, according to U.S. documents recently released
under the Freedom of Information Act, Burisma’s American representatives
pressed the U.S. State Department to try to help end the corruption allegations
against the company. You can read those documents here.
By mid-March 2016, State’s top official for Ukraine policy publicly called for Shokin’s ouster, and less than three weeks later Joe Biden managed to force Ukraine’s president to fire Shokin by threatening to withhold $1 billion in U.S. loan guarantees.
Almost immediately, Burisma’s American legal team was in Ukraine
seeking to meet with Shokin’s replacement at the Ukraine prosecutor general’s office.
A summary of an April 6, 2016 meeting between Burisma representatives and Ukraine
prosecutors – released by the Prosecutor General’s Office – states “false
information” was used to justify Shokin’s firing.
Whatever the case, the corruption investigations were dropped in late 2016 and early 2017, and Burisma paid
a penalty for tax issues.
But early in 2019, NABU and the Ukraine prosecutor general’s
office announced they were reopening the investigation into Burisma,
specifically to revisit the allegations about money laundering, according to the notice of suspicion released by prosecutors in that country. You
can read NABU’s request to reopen the probe here.
That probe is ongoing and recently
was expanded to look at other issues. And the entire Burisma episode is now
part of the larger impeachment proceedings playing out in America against
President Donald Trump.
Just days after it was sharply rebuked for its conduct in the Russia collusion investigation, the FBI is declaring it possesses no records of any disciplinary action taken against lawyers who pursued a deeply flawed Foreign Intelligence Surveillance Act warrant targeting the Trump campaign.
The declaration was made Thursday in a U.S. District Court motion seeking to dismiss an open records lawsuit brought by the Southeastern Legal Foundation, a public interest law firm that frequently argues cases before the Supreme Court.
The foundation’s Freedom of Information Act (FOIA) lawsuit sought any records from the FBI of actions taken with or communicated to the FISA judges or other disciplinary bodies against lawyers involved in the surveillance warrant that was obtained against Trump adviser Carter Page in October 2016 and renewed three times in 2017.
“The FBI informed Plaintiff that it was ‘unable to identify records responsive to’ the FOIA request,” the government’s motion seeking dismissal states. “Because the search requested by Plaintiff in the FOIA request and the Complaint has been conducted, Plaintiff’s claim is now moot.”
The FBI’s claim is certain to touch off new concerns amongst civil liberties experts and conservatives, who fear the bureau has not taken any disciplinary action against the lawyers and supervisors who submitted a deeply inaccurate, flawed application for the warrant.
The declaration comes just four days after Justice Department Inspector General Michael Horowitz excoriated the FBI’s handling of the FISA warrant, identifying 17 significant acts of misconduct, false statements and omitted information. That included one instance in which an FBI lawyer falsified a document in the FISA process.
Horowitz’s report identified a total of 51 violations that rendered the FBI’s search warrant request improper, including nine false statements, nine misleading statements and 33 claims that were not properly documented.
The magnitude of the false information and misconduct was so sweeping that Horowitz suggested Wednesday in congressional testimony that the FBI may have engaged in “illegal surveillance” by deceiving the court.
Todd Young, executive director of the foundation, said the FBI’s claim of no responsive records “does not pass the straight-face test.”
“Horowitz laid out a clear pattern of ‘errors and omissions’ – more than 17 such errors – committed by the FBI before the FISC on four separate warrant applications on Carter Page,” he said.
The FOIA lawsuit sought a broad set of document meant to capture any communications between the FISA judges or other disciplinary bodies.
Kimberly Hermann, the foundation’s chief counsel, said she plans to fight the FBI’s effort to dismiss the FOIA lawsuit.
“The FISA court has stringent rules governing behavior because it makes decisions on whether a federal agency can spy on Americans. Further, the burdens to tell the truth, disclose timely, and update the FISA court are even more critical because there are no other parties than the government providing evidence to the court – it’s unlike any other court in America
As a matter of disclosure, Southeastern Legal Foundation has represented me in several open records cases in 2019, including a motion asking the FISA court if it has any disciplinary concerns about the FBI conduct in the Russia case. Those legal matters are pending.
The Justice Department inspector general’s report into the Russia collusion investigation lays out incontrovertible evidence that the FBI misled the Foreign Intelligence Surveillance Court through false information and omissions, according to sources familiar with its findings.
The evidence that the judges were misled is so sweeping that it could provide grounds, if Attorney General William Barr chooses, to withdraw the FBI’s application for the surveillance warrants that began in October 2016 to target ex-Trump campaign adviser Carter Page, the sources added.
Such a move, while mostly legally symbolic since the probe is long since closed, would still amount to a resounding rebuke to an FBI probe that the bureau, Democrats and their media allies relentlessly defended.
A spokeswoman for the Justice Department did not respond to a request for comment on Monday morning.
“The evidence of false statements, false information, deception through omission is going to raise an important debate about FISA,” one source told me.
The report is expected to conclude the FBI’s decision to open a counterintelligence probe of the Trump campaign’s possible ties to Russia in 2016 was adequately predicated but that its subsequent reliance on the so-called Steele dossier and execution of FISA warrants to assist the probe were problematic.
That reliance became even more troubling in early 2017 when the FBI conducted an interview with one of Christopher Steele’s sources that raised further concerns about the reliability of a dossier that was funded by Hillary Clinton’s campaign and the Democratic National Committee.
One question, the sources said, is whether FBI officials with access to the facts failed to adequately divulge issues in the case to those officials who signed the warrant, which was approved Oct 21, 2016 and renewed three times in 2017.
Inspector General Michael Horowitz is slated to release the report midday Monday after briefing certain congressional oversight committees.
As I reported last week, some key revelations to watch:
· Did the FBI withhold exculpatory evidence (proof of innocence) against such investigative targets as Page and fellow Trump campaign staffer George Papadopoulos?
· Did the FBI withhold derogatory information about the reliability and political motives of the former British spy Christopher Steele?
· Did the FBI fail to verify evidence in the Steele dossier before using it as evidence?
· Will there be a criminal referral of an FBI employee suspected of falsifying evidence in the FISA matter?
Justice Department Inspector General Michael Horowitz
identified 17 serious omissions, inaccuracies and failures involving the FBI’s
conduct in the Russia collusion investigation and its pursuit of a Foreign
Intelligence Surveillance Act warrant targeting the Trump campaign.
The significant failings are laid bare in a report made public Monday that showed the FBI withheld from the FISA court misgivings about its star informant Christopher Steele, as well as evidence of innocence against targets like former Trump campaign advisers Carter Page and George Papadopoulos.
Here is the list of the 17 flagged failures in the FBI’s
handling of FISA warrants in 2016 and 2017, as described in Horowitz’s own
1. Omitted information the FBI had obtained from another
U.S. government agency detailing its prior relationship with Page, including
that Page had been approved as an “operational contact” for the other
agency from 2008 to 2013, and that Page had provided information to the other
agency concerning his prior contacts with certain Russian intelligence
officers, one of which overlapped with facts asserted in the FISA application;
2. Included a source characterization statement asserting
that Steele’s prior reporting had been “corroborated and used in criminal
proceedings,” which overstated the significance of Steele’s past reporting
and was not approved by Steele’s handling agent, as required by the Woods
3. Omitted information relevant to the reliability of Person
1, a key Steele sub-source (who was attributed with providing the information
in Report 95 and some of the information in Reports 80 and 102 relied upon in
the application), namely that (1) Steele himself told members of the Crossfire
Hurricane team that Person 1 was a “boaster” and an
“egoist” and “may engage in some embellishment” and (2) INFORMATION
4. Asserted that the FBI had assessed that Steele did not
directly provide to the press information in the September 23 Yahoo News
article based on the premise that Steele had told the FBI that he only shared
his election-related research with the FBI and Fusion GPS, his client; this
premise was incorrect and contradicted by documentation in the Woods File-
Steele had told the FBI that he also gave his information to the State
5. Omitted Papadopoulos’s consensually monitored statements
to an FBI CHS in September 2016 denying that anyone associated with the Trump
campaign was collaborating with Russia or with outside groups like Wikileaks in
the release of emails;
6. Omitted Page’s consensually monitored statements to an
FBI CHS in August 2016 that Page had “literally never met” or
“said one word to” Paul Manafort and that Manafort had not responded
to any of Page’s emails; if true, those statements were in tension with claims
in Report 95 that Page was participating in a conspiracy with Russia by acting
as an intermediary for Manafort on behalf of the Trump campaign; and
7. Included Page’s consensually monitored statements to an
FBI CHS in October 2016 that the FBI believed supported its theory that Page
was an agent of Russia but omitted other statements Page made that were
inconsistent with its theory, including denying having met with Sechin and
Divyekin, or even knowing who Divyekin was; if true, those statements
contradicted the claims in Report 94 that Page had met
secretly with Sechin and Divyekin about future cooperation with Russia and
shared derogatory information about candidate Clinton.
8. Omitted the fact that Steele’s Primary Sub-source, who
the FBI found credible, had made statements in January 2017 raising significant
questions about the reliability of allegations included in the FISA
applications, including, for example, that he/she had no discussion with Person
1 concerning WikiLeaks and there was “nothing bad” about the
communications between the Kremlin and the Trump team, and that he/she did not
report to Steele in July 2016 that Page had met with Sechin;
9. Omitted Page’s prior relationship with another U.S.
government agency, despite being reminded by the other agency in June 2017,
prior to the filing of the final renewal application, about Page’s past status
with that other agency; instead of including this information in the final
renewal application, the OGC Attorney altered an email from the other agency so
that the email stated that Page was “not a source” for the other
agency, which the FBI affiant relied upon in signing the final renewal
10. Omitted information from persons who previously had
professional contacts with Steele or had direct knowledge of his work-related
performance, including statements that Steele had no history of reporting in
bad faith but “[d]emonstrates lack of self-awareness, poor judgment,”
“pursued people with political risk but no intelligence value,”
“didn’t always exercise great judgment,” and it was “not clear
what he would have done to validate” his reporting;
11. Omitted information obtained from Ohr about Steele and
his election reporting, including that (1) Steele’s reporting was going to
Clinton’s presidential campaign and others, (2) Simpson was paying Steele to
discuss his reporting with the media, and (3) Steele was “desperate that
Donald Trump not get elected and was passionate about him not being the U.S.
12. Failed to update the description of Steele after
information became known to the Crossfire Hurricane team, from Ohr and others, that provided greater clarity on the political origins and connections of Steele’s reporting, including that Simpson was hired by someone associated with the Democratic Party and/or the DNC;
13. Failed to correct the assertion in the first FISA
application that the FBI did not believe that Steele directly provided
information to the reporter who wrote the September 23 Yahoo News article, even
though there was no information in the Woods File to support this claim and
even after certain Crossfire Hurricane officials learned in 2017, before the
third renewal application, of an admission that Steele made in a court filing
about his interactions with the news media in the late summer and early fall of
14. Omitted the finding from a FBI source validation report
that Steele was suitable for continued operation but that his past
contributions to the FBI’s criminal program had been ” minimally
corroborated,” and instead continued to assert in the source
characterization statement that Steele’s prior reporting had been
“corroborated and used in criminal proceedings”;
15. Omitted Papadopoulos’s statements to an FBI CHS in late
October 2016 denying that the Trump campaign was involved in the circumstances
of the DNC email hack;
16. Omitted Joseph Mifsud’s denials to the FBI that he
supplied Papadopoulos with the information Papadopoulos shared with the FFG
(suggesting that the campaign received an offer or suggestion of assistance
from Russia); and
17. Omitted information indicating that Page played no role
in the Republican platform change on Russia’s annexation of Ukraine as alleged
in the Report 95, which was inconsistent with a factual assertion relied upon
to support probable cause in all four FISA applications.
To understand just how shoddy the FBI’s work was in securing a Foreign Intelligence Surveillance Act warrant targeting the Trump campaign, you only need to read an obscure attachment to Justice Department Inspector General Michael Horowitz’s report.
Appendix 1 identifies the total violations by the FBI of the so-called Woods Procedures, the process by which the bureau verifies information and assures the FISA court its evidence is true.
The Appendix identifies a total of 51 Woods procedure violations from the FISA application the FBI submitted to the court authorizing surveillance of former Trump campaign aide Carter Page starting in October 2016.
A whopping nine of those violations fell into the category called: “Supporting document shows that the factual assertion is
For those who don’t speak IG parlance, it means the FBI made nine false assertions to the FISA court. In short, what the bureau said was contradicted by the evidence in its official file.
To put that in perspective, former Trump aides Mike Flynn and George Papadopoulos were convicted of making single false statements to the bureau. One went to jail already, and the other awaits sentencing.
The FBI made nine false statements to the court.
And the appendix shows the FBI made another nine factual assertions that did not match the supporting evidence in the file. In another words, the bureau was misleading on nine other occasions.
The vast majority of remaining Woods violations — 33 in total — involved failing to provide any evidence in the Woods procedure backing up assertion in the FISA warrant application.
That’s serious too since the sole purpose of the Wood procedures is to ensure all evidence cited in a FISA application is documented as accurate and reliable so it can be trusted by the courts.
The FBI’s investigation into alleged Russia-Trump collusion was properly opened without political bias in 2016 but quickly devolved into “serious performance failures” that misled the courts about the flaws with the bureau’s evidence and its star informant Christopher Steele, the Justice Department’s chief watchdog concluded Monday.
Inspector General Michael Horowitz spared few words for the
FBI and its chain of command as he concluded the bureau misled the Foreign
Intelligence Surveillance Court with at least 17 errors and omissions that
rendered each of four applications for surveillance warrants grossly inaccurate.
“Our review found that FBI personnel fell far short of the
requirement in FBI policy that they ensure that all factual statements in a
FISA application are ‘scrupulously accurate,’” Horowitz wrote. “We identified
multiple instances in which factual assertions relied upon in the first FISA
application were inaccurate, incomplete, or unsupported by appropriate
documentation, based upon information the FBI had in its possession at the time
the application was filed.
Specifically, the IG found, FBI agents had not corroborated
any of the allegations in Steele’s dossier before using his source information
to support its first FISA warrant on Oct. 21, 2016 and even blew past concerns
of a senior DOJ official about Steele’s political biases.
In subsequent applications to renew the FISA warrants in 2017, the FBI failed to inform the FISA judges that Steele’s main intelligence source had raised a stunning red flag by disavowing information attributed to that source, the report said.
The massive omission and false assertions in the FISA applications
“made it appear that the information supporting probable cause was stronger
than was actually the case,” the IG found.
“We concluded that the failures described above and in this
report represent serious performance failures by the supervisory and
non-supervisory agents with responsibility over the FISA applications,” the IG
While evidence indicated that the case agents in the Russia
probe were mostly to blame for failing to flag the inaccuracies, omissions and
Steele credibility issues, accountability needed to be assigned all the way to
the top of the bureau, Horowitz said.
“In our view, this was a failure of not only the operational team, but also of the managers and supervisors, including senior officials, in the chain of command,” the report said.
Attorney General William Barr on Monday applauded the IG work, saying it had substantiated “a clear abuse of FISA process.”
“In the rush to obtain and maintain FISA surveillance of Trump campaign associates, FBI officials misled the FISA court, omitted critical exculpatory facts from their filings, and suppressed or ignored information negating the reliability of their principal source,” Barr said.
The biggest winners in the long-awaited IG report were Rep.
Devin Nunes and his Republican colleagues on the House Intelligence Committee
who flagged the serious flaws in the FISA process back in 2018 and Carter Page,
the Trump campaign adviser targeted by the surveillance warrants whose privacy
was clearly violated by faulty FBI warrants.
Specifically, the IG found, that none of the four
allegations Steele had made about Page and that were included in the FISA warrants
was corroborated, including that he met in July 2016 with two senior Russians
close to Vladimir Putin.
“We found that the FBI did not have information
corroborating the specific allegations against Carter Page in Steele’s
reporting when it relied upon his reports in the first FISA application or
subsequent renewal applications,” the report said.
Steele, the former MI6 agent who was hired by Clinton’s
Fusion GS opposition research firm, was among the biggest losers in the report,
which portrayed his dossier as essentially intelligence garbage.
The report divulges that concerns about Steele’s reliability
as an informant pre-dated the first FISA applications when a senior Justice
official, Deputy Assistant Attorney General Stuart Evans in the National Security
Division, flagged Steele’s political bias and connections to Hillary Clinton’s
campaign, which paid for his dossier.
Evans warned that “Steele may have been hired by someone
associated with presidential candidate Clinton or the DNC, and that the foreign
intelligence to be collected through the FISA order would probably not be worth
the risk of being criticized later for collecting communications of someone
(Carter Page) who was politically sensitive,” the report found.
But senior DOJ and FBI officials, including then-Deputy FBI
Director Andrew McCabe, chose to proceed.
That decision resulted in the courts getting a substantially
false picture of Steele’s credibility, one that was never corrected during the
time the FISA warrants were active, the report said. The FBI misstated the
value of Steele’s past intelligence work and hid the lack of corroboration for
the allegation in his dossier, the IG concluded.
The report quoted the FBI agent handling Steele as saying “he
would not have approved the representation” that Steele had been a reliable informant
because “most” of his information had not in fact been corroborated.
“We concluded that these failures created the inaccurate
impression in the applications that at least some of Steele’s past reporting
had been deemed sufficiently reliable by prosecutors to use in court, and that
more of his information had been corroborated than was actually the case,” the
The report divulges that other intelligence community
assets, including the CIA, so distrusted Steele’s dossier that they urged it
not be included in the intelligence community’s assessment of Russia
interference in the 2016 election.
“The Central Intelligence Agency (CIA) expressed concern
about the lack of vetting for the Steele election reporting and asserted it did
not merit inclusion in the body of the report. An FBI Intel Section Chief told
us the CIA viewed it as ‘internet rumor,’” the report noted.
Separately, the report also confirmed reporting I did more than
a year ago that the FBI obtained exculpatory information from Page and George
Papadopolous, two of the targeted campaign aides in the investigation, but did
not disclose that information to the FISA judges even though it “raised
questions about the validity of allegations under investigation.”
The report cites several instance, including Page telling an
FBI informant in August 2016 he never had contact with Manafort and Papadopoulous
repeatedly insisting to an informant that the campaign wasn’t involved in
hacking or distributing Clinton’s emails.
The FBI actually had recorded undercover statements from Papadopolous
stating in fall 2016 that “as far as I understand … no one’s
collaborating, there’s been no collusion and it’s going to remain that
Next week Americans will finally get their most complete accounting
to date of what the FBI did right and wrong in the Russia collusion investigation
that probed President Trump’s campaign with a Foreign Intelligence Surveillance
Act warrant at the end of the 2016 election.
Predicted to span more than 500 pages and 100 witness
interviews, Justice Department Inspector General Michael Horowitz’s report Monday
will provide a comprehensive catalog of what offenses, mistakes and oversights
the FBI committed during one of the most politically polarizing investigations
in recent history.
As such, it will serve as a non-partisan roadmap for a much
longer process of holding the investigators to account, a process that now
includes a criminal probe being led by U.S. Attorney John Durham and
investigative hearings by Senate Judiciary Committee chairman Lindsey Graham.
In the evitable political bitterness that grips Washington, each political party will seek to score points by cherry-picking their favorite Horowitz findings. But there is a far weightier question than electoral politics to be resolved: Can the FBI be trusted going forward to adequately, fairly and honestly protect civil liberties of Americans while conducting counterintelligence, counterterrorism and criminal investigations.
With that bigger question in mind, here are the 10 revelations I believe will be most important in the Horowitz report.
The scope of failure and misconduct
Were there isolated mistakes, systemic cultural and procedural failures or intentional acts involved in the investigation, the pursuit of the FISA warrant against ex-Trump adviser Carter Page and the renewal of the FISA warrant for more than a year? I expect the Horowitz report to identify between six and 12 failures, mistakes and acts of misconduct. These will range from the serious offense of altering a government document to failures to provide the courts evidence and information required under the FISA process. The large number of problems, if confirmed, should be a wakeup call to the FBI and those who provide oversight of its activities.
Exculpatory evidence withheld
The issue of whether the FBI failed to tell the FISA judges, as required, about evidence of innocence concerning some of the Americans it targeted has been raised for more than a year by key members of Congress like Rep. Devin Nunes, R-Ca., and Rep. Mark Meadows, R-N.C. I expect the IG to identify exculpatory statements made by key figure George Papadopoulos to an undercover informant that were not properly disclosed to the court. A second revelation to watch is whether the FBI possessed similar evidence of innocence involving Page that was not disclosed.
Derogatory information about informant Christopher Steele
The FBI stated to the court in a footnote that it was unaware of any derogatory information about the former MI6 agent it was using as “confidential human source 1” in the Russia case. This claim could face a withering analysis in the report. Congressional sources have reported to me that during a recent unclassified meeting they were told the British government flagged concerns about Steele and his reliance on “sub-sources” of intelligence as early as 2015. Bruce Ohr testified he told FBI and DOJ officials early on that he suspected Steele’s intelligence was mostly raw and needed vetting, that Steele was working with Hillary Clinton’s campaign in some capacity and appeared desperate to defeat Trump in the 2016 election. And documents show State Department official Kathleen Kavalec alerted the FBI eight days before the first FISA warrant was obtained that Steele may have been peddling a now-debunked rumor that Trump and Vladimir Putin were secretly communicating through a Russian bank’s computer server. Most experts I talked with say each of these revelations might constitute derogatory information that should be disclosed to the court. On a related note, Horowitz just released a separate report that concluded the FBI is doing a poor job of vetting informants like Steele, suggesting there was a culture of withholding derogatory information from informants’ reliability and credibility validation reports. You can read about that here.
News leaks as evidence
One of Horowitz’s earlier investigative reports that recommended fired FBI Deputy Director Andrew McCabe for possible prosecution put an uncomfortable spotlight on the bureau’s culture of news leaks. Since then, a handful of other cases unrelated to Russia have raised additional questions about whether the FBI uses news leaks to create or cite evidence in courts. One key to watch in the Horowitz report is the analysis of whether it was appropriate for the FBI to use a Yahoo News article as validating evidence to support Steele’s dossier. We now know from testimony and court filings that Steele, his dossier and Fusion GPS founder Glenn Simpson played a role in that Yahoo News story. If so, was the use of the article “circular reporting” instead of independent corroboration? It’s an important question for Horowitz to resolve.
Verification under the Woods Procedures
For years the FBI has been required to certify to the FISA court that all information submitted in a warrant application was “verified” under the so-called Woods Procedures. Lawmakers with access to classified information have said for months they fear a key allegation gleaned from Steele’s dossier – that Carter Page had met with two senior Russian officials close to Putin in summer 2016 – was never verified when it was used as evidence in the FISA warrant. We know from Special Counsel Robert Mueller’s report that those contacts alleged by Steele never happened. Horowitz should provide valuable insight on this issue.
Steele dossier heartburn
Former FBI Director James Comey has consistently testified he understood the Steele dossier to be “salacious” and “unverified” and yet the bureau submitted four “verified” warrant applications that relied on evidence from the dossier. A major question for Horowitz to answer is: who else besides Comey shared that distrust and how early did those concerns about the dossier emerge? Congressional Republicans have demanded the release of a series of email chains they claim might show FBI and DOJ officials had similar heartburn about the reliability of the document. In addition, the FBI kept a spreadsheet analyzing the claims in Steele’s dossier. Sources who reviewed it have said the vast majority of the dossier’s claims fell into one of three categories: debunked, could not be verified or traced to open-source intelligence typically found on the Internet.
What investigators learned from Steele
We know from State Department memos that more than a week before the first FISA warrant was obtained, Steele visited with senior State officials and acknowledged he was working with the FBI, leaking to news media and had an election day deadline to get his information public. Likewise, Steele similarly indicated to senior Justice official Bruce Ohr as early as summer 2016 he was desperate to stop Trump from being elected and was working in some capacity with Trump’s rival, Hillary Clinton. So here is a big development to watch: What did Steele tell the FBI about these very important issues? And when did the FBI first learn he might be leaking? The FBI ended its informant relationship with Steele on Nov. 1, 2016, a little over a week after using his dossier to support the first FISA warrant. And the reason they did so was because agents had concluded he improperly leaked to the news media. But did the FBI know or have reason to suspect that problem before the first FISA warrant? Stay tuned.
Bias, intent and incompetence
The issue of which of these three problems to blame will be the political football most tossed around by partisans. But in the end it is less important to the question of protecting civil liberties. One’s privacy is infringed wrongly whether the FISA application was harmed by intentional bias or incompetence. That said, expect a mixed verdict on this issue. I suspect there is evidence that an FBI lawyer intentionally altered a piece of evidence that affected the FISA process. That could be criminal. I suspect it is less likely that the IG will conclude that the audacious anti-Trump bias expressed in the official text messages of FBI agent Pete Strzok and bureau lawyer Lisa Page impacted specific actions in the FISA process, especially because many more DOJ and FBI than those two were involved in the process. But we already know from the release last month of Strzok’s disciplinary file that the FBI considered the bias expressed in the text messages to be “misconduct” that cast a pall on the credibility of the FBI and its Trump-Russia and Clinton email cases. And I suspect the IG will identify a number of systemic and individual mistakes that tarnished the FISA process in the Russia case.
Criminal referrals and disciplinary actions
Horowitz has already referred Comey’s mishandling of sensitive Russia memos for possible prosecution, which was declined. He also referred McCabe for prosecution for lying, an issue which McCabe contests and which appears unresolved. Lots of people will be watching to see if more referrals for prosecution are included in the latest Horowitz report. I would expect at least one, if not more, referrals will have grown out of the Horowitz’s FISA report, which is likely why Durham’s probe recently was converted from administrative to criminal. Other remedies for accountability could fall into the disciplinary category.
This may not be the most politically hot
topic to emerge from the report, but it is potentially the most important for
protecting against future civil liberties violations and FBI intrusions on an
American election. What will Horowitz recommend as remedies so we don’t have another
Russia collusion fiasco in the future? Do FBI and DOJ need new rules and
thresholds for opening probes of candidates and campaigns? Does the FBI system
for vetting informants need to be fixed? Does the FISA court need a public advocate
to protect the liberties of Americans targeted for warrants to create a check
and balance on the FBI? Do the Woods procedures for verifying evidence for a
FISA warrant need revision or overhaul? These are weighty questions that the
FBI, DOJ and Congress almost certainly will face in the coming months.
The Horowitz report Monday and the IG’s testimony next
Wednesday before the Senate start a new phase of accountability for the FBI and
those government officials in the intelligence community who worked on the
Russia case. But it is only a beginning of a process that likely will take many
more weeks or months.
And the final script won’t be written until Americans can be
assured the FBI can conduct future counterintelligence investigations without
repeating the mistakes made during the Russia collusion probe.