“There’s a lot of talk about FISA applications,” then-Deputy Attorney General Rod Rosenstein began, addressing a sympathetic Trump-hating audience on May 1, 2018 during a “Law Day” celebration at the Newseum. Rosenstein beamed with moral superiority as he lectured Americans, and indirectly his boss, President Trump, on the importance of the apolitical application of the rule of law.
“Many people that I see talking about it seem not to recognize what a FISA application is,” Rosenstein continued. “A FISA application is actually a [request for] a warrant . . . . In order to get a FISA search warrant, you need an affidavit signed by a career federal law enforcement agent who swears that the information contained in the application is true and correct…and if it is wrong, that person can face . . . prosecution . . . . That’s the way we operate. We have people who are accountable.”
Just 11 months earlier, Rosenstein signed the June 2017 FISA application seeking a final extension to continue spying on former Trump campaign figure Carter Page. That application contained a bald-faced lie that struck at the heart of the very constitution Rosenstein so often claimed to be protecting and upholding.
In one stroke, the Department of Justice undermined both the Fourth Amendment’s guarantee against unreasonable search and seizure and the independence of the judiciary that cannot exist without candor and honesty from the government attorneys who practice before it.
Justice Department attorney Kevin Clinesmith fabricated evidence to hide from the FISA court the critical fact that Page had a history of truthfully and voluntarily providing the very information sought by the government’s intrusive surveillance.
That fact made the surveillance of Page unnecessary and therefore illegal. Rod Rosenstein approved that application. Rosenstein, according to his own words, should have been held accountable.
From the outset, the FBI knew and concealed the fact that Page worked with the CIA. Page was never the real target of the surveillance, just a window into the Trump campaign figures with whom he interacted. As noted on pages 247-248 of the relevant inspector general’s report, “on or about August 17, 2016, while early FISA discussions were ongoing, the Crossfire Hurricane team received a memorandum (August 17 Memorandum) from another U.S. government agency [the CIA] relating to Page’s prior relationship with that agency, including that Page had been approved for operational contact from 2008 to 2013.”
Then, shortly before the final FISA renewal against Page, “Page conducted news interviews in April and May 2017 in which he publicly stated that he had assisted the [U.S. Intelligence Community] in the past.” Until his public interviews, Page’s history of cooperation with the CIA was kept secret in a small circle. The inspector general’s report explains on pages 248-249 what happened next:
[T]he Supervisory Intel Analyst on the Crossfire Hurricane team had raised a concern that Page may have had a prior relationship with the other U.S. government agency in the past. The OGC Attorney said it was ‘a big, big concern from both OI and from the FBI that we had been targeting [an individual with a prior relationship with the other agency], because that should never happen without us knowing about it.’ The OGC Attorney characterized the Crossfire Hurricane team as ‘spun up’ about this concern, and said he knew that if it were true, they would ‘need to provide that to the court’ because such information would ‘drastically change the way that we would handle . . . [the] FISA application.’ [supervisory special agent] 2 told the OIG that this issue was very important to resolve, because if Page was being tasked by another agency, especially if he was being tasked to engage Russians, then it would absolutely be relevant for the Court to know … [and] could also seriously impact the predication of our entire investigation which focused on [Page’s] close and continuous contact with Russian/Russia-linked individuals.
Clinesmith did not act in a vacuum. As I noted in August, Clinesmith made sure his superiors knew exactly what he was doing before doctoring the false evidence for the consumption of the FISA court. His attorney told us, “Mr. Clinesmith had provided the unchanged C.I.A. email to Crossfire Hurricane agents and the Justice Department lawyer drafting the original wiretap application.”
Rosenstein personally oversaw the application and the team that sought to continue the spying that began in July 2016. Thus, it should come as no surprise that Clinesmith’s leverage over powerful Justice Department co-conspirators coincided with a farcically light non-prison penalty for the most serious and easily proven criminal behavior by the get-Trump deep state. As I said in August,
by sending both the doctored and undoctored version of the same email, Clinesmith made sure each of them knew that the conspiracy would involve filing a fraudulent document with the FISA court. This may explain why, more than three years later, the conspirators never turned on each other. Like a 2017 version of Brutus, Clinesmith made sure that if he went down, he would be able to take down the other conspirators as well.
But Clinesmith now appears positioned to cash in on that insurance policy. In a stunning development on Friday, the New York Times reported that Clinesmith intends to plead guilty to a criminal charge of falsifying a court document and that Clinesmith has made a deal with prosecutors.
Adding to the farce, as the Wall Street Journal noted, James Boasberg, the judge who gently slapped Clinesmith on the wrist, is also the chief judge of the FISA court. Even more insulting to the intelligence of Americans, the attorney who responded to Trump’s electoral victory by texting, “the crazies won finally,” and “Viva La Resistance,” was found by the judge not to have acted with any animosity towards Trump.
By pooh-poohing the fraud on the FISA court, Boasberg thus surrendered the indispensable independence of the secret court. If the court won’t punish false statements that induce search warrants, then the entire process of judicial authorization of spying on Americans has no legitimacy.
Of course, the Justice Department higher-ups who should have stopped the fraudulent spying application have continued to thrive and prosper. Rod Rosenstein is now a rich man working as a partner for the mega law firm King and Spalding, the same firm that helped produce the current FBI director, Christopher Wray. Former FBI Director James Comey, Deputy Director Andrew McCabe, and former lead-Trump investigator Peter Strzok have all escaped criminal prosecution and cashed in on their misconduct with lucrative book deals. And the D.C. Bar has failed to disbar Clinsemith as an attorney despite the obvious ethical misconduct of lying to a court.
We still don’t know the identity of the FBI official who initially hid the CIA memo that revealed Page cooperated with the government to provide intelligence on Russia. Page was so trusted by the CIA that it cleared him for operational intelligence. Presumably, that FBI agent or lawyer continues to practice his craft within the bowels of the Department of Justice. We should know that name and he or she should never again be trusted with anything involving criminal investigations (except as a defendant).
All of this comes at a terrible price to the legitimacy of the legal system in general. Ordinary Americans who might be called upon to act as jurors or witnesses will rightly question whether the Justice Department acts in good faith when political power is at stake. Defense attorneys will rightly point out to potential jurors that the Justice Department generally resists punishing FBI employees for lying in legal proceedings. Safe in the knowledge that the Justice Department protects its own, FBI lawyers will now feel less constrained by the constitutional safeguards intended to protect Americans.
Lying to a judge to gain a warrant is a crime in service to an attack on the Constitution. It should end the career of an attorney and lead to severe punishment. But Clinesmith was a martyr to the cause of “getting Trump,” and his service has been rewarded.