Joe Biden’s ‘conspiracy theory’ memo to U.S. media doesn’t match the facts

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.

The memo calls the allegation a “conspiracy theory”  (and, in full disclosure, blames my reporting for the allegations surfacing last year.)

But 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.

Here 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.

It 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 event.

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.

Documents 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.

Fact: There 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 Department documents.

Fact: Federal Ethics rules requires government officials to avoid taking policy actions affecting close relatives.

Office 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 their impartiality.

“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.”

Fact: Multiple 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.

In this 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.

“If your last name wasn’t Biden, do you think you would’ve been asked to be on the board of Burisma?,” a reporter asked.

“I 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.”

Fact: Ukraine law enforcement reopened the Burisma investigation in early 2019, well before President Trump mentioned the matter to Ukraine’s new president Vlodymyr Zelensky.

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.

NABU 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.

A month later in March 2019, Deputy Prosecutor General Konstantin Kulyk officially filed this notice of suspicion re-opening the case.

And 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.

For a complete timeline of all the key events in the Ukraine scandal, you can click here.

Latvian government says it flagged ‘suspicious’ Hunter Biden payments in 2016

As 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 interviews.

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.

“The 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.

The memo was released to me by the Ukrainian General Prosecutor’s Office and confirmed by the Latvian embassy to the United States.

Latvian authorities said they did not get any incriminating information back from Ukraine to warrant further investigation and did not take additional action in 2016.

But 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.

The 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.

The 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.

The 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.

“On 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.

Arturs 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 Burisma.

“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 told MSNBC.

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.

Scot free? FBI declares it has no records of discipline against lawyers in Russia FISA case

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.

Just how bad was the FBI’s Russia FISA? 51 violations and 9 false statements

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
inaccurate.”

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 Comey FBI’s 17 worst failures, inaccuracies and omissions flagged in the Russia FISA report

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 words.

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 Procedures;

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 REDACTED

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 Department;

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 application;

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. President”;

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 2016;

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.

IG excoriates FBI conduct in Russia probe, concludes FISA warrants misled court

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 said.

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 report found.

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 Papadopoulou\s 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 way.”

IG report lays out compelling evidence FBI misled FISA court in Russia case, sources say

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?

The 10 most important revelations to expect from the Russia probe FISA report

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.

Lessons Learned

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.

Steele distributed other dossier reports, including one to an oligarch’s lawyer

Just before Christmas 2015, the British intelligence operative Christopher Steele emailed a report to private clients that included an American lawyer for a Ukrainian oligarch.

The title of the dossier was “FIRTASH Abortive Return to Ukraine,” and it purported to provide intelligence on why the energy oligarch Dmitri Firtash tried, but failed, to return to his home country of Ukraine.

“FIRTASH’s talk of returning to Ukraine a genuine ambition rather than merely a ruse to reveal Ukrainian government’s hand. However the oligarch developed cold feet upon the news of a negative reception at Boryspil airport,” Steele reported on Dec. 23, 2015.

Perhaps most important to the recipients, the former MI6 agent’s report purported to share the latest thinking of Russian and U.S. officials on Firtash, who at the time faced U.S. criminal charges and was awaiting extradition from Austria.

Those charges and extradition remain unresolved four years later. Firtash insists on his innocence, while the U.S. government stands by it case despite recent criticism from Austrian and Spanish authorities.

“The prevarication over his return has lost FIRTASH credibility with the Russians, but his precarious position in Austria leaves him little choice but to acquiesce with Moscow’s demands,” the Steele report claimed. “Separate American sources confirm that US Government regards FIRTASH as a conduit for Russian influence and he remains a pariah to the Americans.”

The anecdote of the Firtash report underscores that challenges the FBI faced when it used Steele in 2016 as a human source in the Russia collusion probe.

He not only opposed Trump and was paid by Hillary Clinton’s opposition research firm to dig up dirt on the then-GOP nominee, he also was in the business of selling intelligence to private clients – all perfectly legal — while informing for the FBI.

Steele had engaged the U.S. government on occasion since his retirement from MI6 in 2009, both as an FBI informant in the FIFA soccer corruption case and as intelligence provider to the Obama State Department. So any assessment he offered from U.S. officials was closely watched by private clients.

His Firtash report cited an unnamed intelligence source indicating that Firtash had little chance of winning any favor under the Obama administration, but that other oligarchs in the region might be welcomed by the Americans if they sought to play a role in Ukraine.

“The source had a separate confirmation from US sources that Washington regarded FIRTASH as a conduit for Russian influence,” the report said. “Whilst the USG was prepared to do business with the likes of Rinat AKHMETOV and Ihor KOLOMOISKY, FIRTASH remained a pariah.”

The U.S. lawyer who received Steele’s report represented Firtash and had spent part of 2015 checking whether there was an opportunity the State or Justice Department might negotiate to settle the criminal case against his client.  He determined the U.S. government did not, something Steele’s report only affirmed anew.

Steele did not immediately respond to a message to his London business office seeking comment. But his firm has issued a blanket statement on its Web site saying it does highly professional work but doesn’t comment on specific clients or products.

“Orbis Business Intelligence has an established track record of providing strategic intelligence, forensic investigation and risk consulting services to a broad client base,” the firm wrote. “The nature of our business, and our high standards of professionalism dictate that we would not disclose to the public information on any specific aspects of our work.  We remain fully committed to the secure provision of our services to our clients and partners worldwide.”

Steele and his infamous dossier alleging an unfounded conspiracy between Donald Trump and Vladimir Putin to hijack the 2016 election are expected to play a starring role in a long-awaited Justice Department inspector general’s report reviewing the FBI’s Russian collusion probe.

The report to be made public next month is expected to reveal that one FBI official falsified a document and other U.S. officials withheld information both about Steele and the innocence of some of the targeted individuals when the FBI sought a Foreign Intelligence Surveillance Act warrant to probe the Trump campaign’s ties to Russia starting in October 2016.

Some intelligence experts have been quoted recently as saying Steele’s information against Trump, much of which the FBI could never verify, may have been Russian disinformation designed to sow chaos during the U.S. election.

After two-plus years of investigation, Special Counsel Robert Mueller concluded this spring that there was no collusion or conspiracy between Russia and the Trump campaign. Nonetheless, the allegations have lingered over the Trump presidency and divided the country bitterly.

Steele’s Firtash report is a cogent reminder that while Steele on occasion worked for the U.S. government, he also was simultaneously pitching intelligence he got from American sources and others to his private clients, some who had different interests than the United States.

The back and forth between U.S. and other contacts in Steele’s business was laid bare by email and text messages released by the Justice Department last year. For instance, the messages show that less than three weeks after emailing the Firtash report, Steele reached out in January 2016 to senior U.S. Justice Department official Bruce Ohr, a prosecutor with responsibility for Eurasian oligarchs, to set up a possible meeting in London.

Steele and Ohr had frequent contact all the way through 2017, including when Steele shared on July 30, 2016 some of his anti-Trump evidence with Ohr, who then took it to the top of the FBI. Steele was eventually dropped by the FBI as an informant for leaking to the news media.

Fiona Hill, a recent impeachment witness and a former top Russia expert on the National Security Council, suggested to lawmakers in a deposition recently that Steele’s dual role as government insider/informer and private intelligence provider left him vulnerable to Russian disinformation when he wrote his dossier.

“He was constantly trying to drum up business,” Hill testified when asked about her own contacts from time to time with the former British intelligence agent.

She said that when she read Steele’s anti-Trump dossier in January 2017 she instantly feared it might be disinformation fed to Steele by the Russians because he previously had done spy work for MI6.

“That is when I expressed the misgivings and concern that he could have been played,” Hill testified.

She added: “The Russians would have an axe to grind against him given the job he had previously. And if he started going back through his old contacts and asking about that, that would be a perfect opportunity for people to feed him some kind of misinformation.”

The IG report set to be released Dec. 9 will give Americans a more comprehensive look at Steele and the FBI’s reliance on him as an informant.

And then it will be up to the FBI, DOJ and congressional oversight committees to re-evaluate what lessons can be learned from the now-debunked Russia collusion probe.  

Those likely are to include better vetting of informants, stronger oversight of the FISA process and new regulations for when the FBI can investigate a candidate during the middle of an election, especially when the allegations emanate from a political opponent.