Ohr’s Testimony: Is It Enough To Launch DOJ Investigation Into FISA Abuse?
Former senior FBI and DOJ officials could find themselves at the center of a criminal investigation after bombshell testimony from a DOJ official revealed they knew a former British spy’s dossier was not vetted but still used it as evidence to obtain a warrant to spy on a Trump campaign aide.
DOJ official Bruce Ohr revealed last August in closed-door congressional testimony that he had informed three top senior Justice Department and FBI officials in the summer of 2016 about his meetings with former British spy Christopher Steele. Ohr told these officials about Steele’s animus toward Trump and that the dossier was not verified. Further, he informed the officials that he was also in communication with Glenn Simpson, the founder of embattled research firm Fusion GPS.
The FBI and DOJ also knew Simpson’s firm was paid by the Hillary Clinton campaign and the Democratic National Committee to investigate Trump, according to Ohr. The bureau also knew that Ohr’s wife, Nellie Ohr, was working for Simpson.
This means, Ohr informed these senior officials well before the FBI sought the October, 2016 FISA warrant to spy on former Trump advisor Carter Page. Ohr’s testimony was reviewed by SaraACarter.com and vetted by sources that could verify its accuracy.
David Schoen, a criminal defense and civil rights attorney, said the revelations in Ohr’s testimony must be investigated by the Department of Justice or a second Special Counsel. Schoen, who has been outspoken critic of Special Counsel Robert Mueller’s investigation, noted that withholding the information from the nation’s most secretive court, the Foreign Intelligence Surveillance Court, is a direct violation of the rules established to protect Americans.
“It is a fundamental constitutional tenet of Fourth Amendment law, in any intrusive application by the government (search, seizure, surveillance) that the veracity of the source is the key (background, experience, reliability of past information, etc.) above and beyond everything else,” said Schoen.
DOJ and FBI Officials Who Knew
Ohr, who was then the Associate Deputy Attorney General, stated in his testimony that he spoke with Bruce Swartz, who is the counselor for International Affairs in the Criminal Division. He also spoke with Zainab Ahmad, then DOJ prosecutor with the Criminal Division and Andrew Weissmann, who then headed the DOJ’s fraud section.
Ahmad is now a ranking prosecutor on Mueller’s team. At the time she spoke with Ohr she worked directly with former Attorney General Loretta Lynch. Weissman, known as Mueller’s pit bull, is considered number two on the Special Counsel investigating Trump campaign.
Ohr said he spoke with then-Deputy Director Andrew McCabe and FBI attorney Lisa Page. Page resigned from the FBI last year after her anti-Trump text message with then FBI lead investigator Peter Strzok were revealed.
McCabe, who has since been fired by the DOJ for lying to investigators, spoke with Ohr on July 31, 2016. Ohr said after meeting McCabe and Page, he was referred to the agents working Russia counterintelligence, including Strzok. Strzok was also fired by the FBI for his actions during the Trump investigation.
“Commentators differ over whether sufficient information was provided regarding the Steele dossier and the Page application,” Schoen said.
“I think it is a no brainer and clearly it was insufficient – source of funding, credibility questions, and on,” he said. “They were simply not disclosed and they were well known at the FBI and DOJ.”
Ohr Warned The FBI
During questioning by Rep. John Ratcliff, R-Texas, Ohr revealed that he also informed senior officials within the FBI about Steele’s dossier and his temperament regarding Trump.
Ratcliff: We’ve talked about the relevant facts that the FBI and the Department of Justice was aware of. Were they also – one that I didn’t ask you about – they were also aware of Mr. Steele’s bias against Donald Trump, were they not?
Ohr: I provided information to the FBI when I thought Christopher Steele was, as I said, desperate that Trump not be elected. So, yes, of course, I provided that to the FBI.
Ratcliffe: Yes, and so were the DOJ and the FBI also aware of Glenn Simpson’s bias against Donald Trump?
Ohr: I certainly told the FBI that Fusion GPS was working with – doing opposition research on Donald Trump.
Ratcliff: Okay. So again, so the record is clear, what the Department of Justice and the FBI was aware of prior to the first FISA application was your relationship with Christopher Steele and Glenn Simpson, your wife’s relationship with Christopher Steele and Glenn Simpson, Mr. Steele’s bias against Donald Trump, Mr. Simpson’s bias against Donald Trump, your wife’s compensation for work for Glenn Simpson and Fusion GPS, correct?
Ohr: Right. So just, again, to reiterate, when I spoke with the FBI, I told them my wife was working for Fusion GPS. I told them Fusion GPS was doing research on Donald Trump. You know, I don’t know if I used the term opposition research, but certainly that was my—what I tried to convey to them. I told them this is the information I had gotten from Chris Steele. At some point, and I don’t remember exactly when, I don’t think it was the first conversation, I told them that Chris Steele was desperate that Donald Trump not get elected.” So those are all facts that I provided to the FBI.
Ratcliff: You said because you wanted to make sure – first you said you thought there might be a conflict of interest and then you changed that and said, well, I didn’t mean conflict of interest. I just wanted to make sure that they were aware of the possibility of bias as it related to those facts, correct?
Ohr: In case there is any concern that there might be any kind of bias or anything like that.
Ratcliffe: So that the FBI and the DOJ had the opportunity, if they were going to file a FISA application, to say, the central piece of evidence that we’re submitting, this dossier, just so you know, the associate deputy attorney general was involved in this respect and his wife was….
Rules and Procedures That May Have Been Violated
In order to understand how senior officials could have violated the FISA rules one has to look at the FBI rules and court requirements, said Schoen.
Moreover, the FBI officials appear to have violated their own policy under their Domestic Investigations Operations Guide, which outlines the procedures that agents must follow. One of those procedures deals directly with warrant applications and it requires that all warrant applications must be only on “documented and verified” information, according to the document. Further, it stipulates that accuracy in FISA applications is of the “utmost importance.”
FISC Rule 13: Correction of Misstatement or Omission; Disclosure of Non-Compliance.
This rule “requires the government to correct any misstatement or omission and this is absolutely mandatory.”
“We now know 100% that there were material omissions and misleading provisions in the application even though all we have seen is a redacted version,” said Schoen. “Has Rule 13 been followed since this discovery? That is key to me.”
(a) Correction of Material Facts. If the government discovers that a submission to
Court contained a misstatement or omission of material fact, the government, in writing,
must immediately inform the Judge to whom the submission was made of:
(1) the misstatement or omission;
(2) any necessary correction;
(3) the facts and circumstances relevant to the misstatement or omission;
(4) any modifications the government has made or proposes to make in how it will
implement any authority or approval granted by the Court; and
(5) how the government proposes to dispose of or treat any information obtained
as a result of the misstatement or omission.
(b) Disclosure of Non-Compliance. If the government discovers that any authority or
approval granted by the Court has been implemented in a manner that did not comply
with the Court’s authorization or approval or with applicable law, the government, in
writing, must immediately inform the Judge to whom the submission was made of:<
(1) the non-compliance;
(2) the facts and circumstances relevant to the non-compliance;
(3) any modifications the government has made or proposes to make in how it will
implement any authority or approval granted by the Court; and
( 4) how the government proposes to dispose of or treat any information obtained
Rule 16:Verification and Credibility Evidence
One of the biggest questions regarding the multiple renewals of the FISA application on Page, was what new evidence the FBI had on Page and did the bureau verify the information? The FBI and DOJ released the heavily redacted FISA warrant applications on Page by order of the president. However, the redactions make it difficult to decipher what information was submitted as evidence by the bureau, said Schoen.<
“The best and most relevant factor to emphasize at this point are the relevant provisions of the FISC Rules of Procedure,” said Schoen. There is certainly enough information to suggests that “Rule 16” may have been violated, he added.
Rule 16 requires “certain reporting in connection with a renewal application,” said Schoen. “What did the ‘returns’ (renewal applications) show here in order to justify the renewals. Apparently, the verification/credibility issue was never addressed in any of the renewals.”
(1) Search Orders. Unless the Court directs otherwise, a return must be made
and filed either at the time of submission of a proposed renewal application or
within 90 days of the execution of a search order, whichever is sooner.
(2) Other Orders. The Court may direct the filing of other returns at a time and
in a manner that it deems appropriate.
Contents. The return must:
(1) notify the Court of the execution of the order;
(2) describe the circumstances and results of the search or other activity including,
where appropriate, an inventory;
(3) certify that the execution was in conformity with the order or describe and
explain any deviation from the order; and
(4) include any other information as the Court may direct.
as a result of the non-compliance.
FISC Rules Under 50 U.S.C. Sec. 1881
The FISC Rules have special provisions as well for surveillance under 50 U.S.C. Sec. 1881a regarding specific persons targeted who are located overseas, said Schoen.
“Similar provisions and the statute itself says must comply with the Fourth Amendment,” he added. “All provide for ex-parte and in camera review by the court and this allows for tremendous abuse by unscrupulous prosecutors/agents as we saw here.”
Schoen noted that the “problem is that there also is a protocol specifically used for FISA applications, called the “Woods Procedures” and this a bit circular.
“They really just require the applicant (and supervisor) to make sure that the information in the FISA application is documented in the FBI files; so if the original information in the FBI files is not really credible or verified, this is not a real check on verification of a source,” Schoen wrote in an email.
All the Woods Procedures require at bottom is that the application matches what is in the FBI files, he said.
“However, if the source is not really verified or there are questions about credibility, that MUST be brought to the FISC’s attention in the application to the absolute full extent the FBI was aware of the questions,” Schoen added.
The difficulty in keeping the secret FISC in check relies on the credibility of the sources providing the information in a FISA application.
“The government often is asking for the highest level of intrusion and it is doing so on an ex parte basis with no one on the other side to challenge anything,” said Schoen.