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The Senate Grills DOG IG Horowitz on Russia Probe. Aired 11-11:30a Et
Aired December 11, 2019 - 11:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
We reviewed department and FBI policies and concluded that Assistant Director Priestap's exercise of discretion in opening the investigation was in compliance with those policies.
We also reviewed, as we detail in the report, the e-mails, text messages and other documents of those involved in that decision, and particularly Mr. Priestap's, and we did not find documentary or testimonial evidence that indicated political bias or improper motivation influencing his decision to open the investigation.
While the information in the FBI's possession at the time was limited, in light of the low threshold established by department and FBI predication policy -- which by the way is not a legal requirement but rather a prudential one in the -- in the FBI and department policies -- we found that Crossfire Hurricane was opened for an authorized investigative purpose and with sufficient factual predication.
This decision to open Crossfire Hurricane, which involved the activities of individuals associated with a national major party campaign for president, was, under department and FBI policy, a discretionary judgment left to the FBI. As we point out in our report, there was no requirement that department officials be consulted or even notified of that decision prior to the FBI making that decision.
Consistent with this policy, the FBI advised supervisors in the department's National Security Division of the investigation days after it had been opened.
As we detail in our report, high-level department notice and approval is required in other circumstances where investigative activity could substantially impact certain civil liberties, and that notice allows senior department officials to consider the potential constitutional and prudential implications in advance of those activities. We concluded that similar notice should be required in circumstances such as those present here.
Shortly after the FBI opened the Crossfire Hurricane investigation and conducted -- the FBI conducted several consensually monitored meetings -- recorded meetings -- between FBI confidential human sources, which are referred to as CHSs, and individuals affiliated with the Trump campaign, including a high-level campaign official who was not a subject of the investigation.
We found that the CHS operations received the necessary approvals under FBI policy, that an FBI assistant director, Mr. Priestap, knew about and approved of each operation -- even in circumstances where what was only required was first-level supervisory agent approval -- and that the operations were permitted under department and FBI policy because their use was not for the sole purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the Constitution or laws of the United States.
We did not find documentary or testimonial evidence that political bias or improper motivation influenced the FBI's decision to conduct those CHS operations. Additionally, we found no evidence that the FBI attempted to place CHSs within or report on the Trump campaign or recruit members of the Trump campaign as CHSs.
However, we were concerned that under applicable department and FBI policy, it would have been sufficient for a first-level FBI supervisor to authorize the sensitive domestic CHS operations undertaken in Crossfire Hurricane, and that there is no applicable department or FBI policy requiring the FBI to notify department officials of a decision to task a confidential human source to consensually monitor, record -- in other words, record -- conversations with members of a political campaign.
Just in terms of that, it's worth noting that had, in the mid-year investigation, which was the Clinton e-mail investigation, or in this investigation, the FBI could have, at the supervisory agent level, so one level removed from a line agent, authorized an undercover -- authorized a confidential human source to have a consensually monitored conversation with either of the presidential candidates, with no notice to the Department of Justice or any lawyer in the Department of Justice.
In Crossfire Hurricane, where each of the operations had the potential to gather sensitive campaign information protected by the First Amendment, we found no evidence that the FBI consulted with department officials before conducting those operations, and no policy, as I just noted, requiring them to do so.
We concluded that current department and FBI policies are not sufficient
to ensure appropriate oversight and accountability when such operations potentially implicate sensitive constitutionally protected activity, and that requiring department consultation at a minimum would be appropriate. And we make a recommendation to that effect.
One investigative tool for the -- which the department and the FBI policy does expressly require express advance approval by a senior department official is the seeking of a court order under FISA.
When the Crossfire Hurricane team first proposed seeking a FISA order targeting Carter Page in mid-August 2016, FBI attorneys assisting the investigation considered it a, quote, "close call," close quote, and the FISA order was not requested at the time.
However, in September 2016, immediately after the Crossfire Hurricane team received reporting from Christopher Steele concerning Page's alleged recent activities with Russian officials, FBI attorneys advised the department that it was ready to move forward with a request to obtain FISA authority to surveil Page.
FBI and department officials told us the Steele reporting, quote, "pushed the FISA proposal over the line," close quote, in terms of establishing probable cause and we concluded that the Steele reporting played a central and essential role in the decision to seek a FISA order.
FBI leadership's -- FBI leadership supported relying on Steele's reporting to seek a FISA order after being advised of concerns expressed by a department attorney that Steele may have been hired by someone associated with a rival candidate or campaign.
Surveillance authority under FISA can significantly assist the government's efforts to combat terrorism, clandestine intelligence activity and other threats to the national security. At the same time, the use of this authority unavoidably raises civil liberties concerns.
FISA orders can be used to surveil U.S. persons and in some cases, the surveillance will foreseeably collect information about the individual's constitutionally protected activities, such as Carter Page's legitimate activities on behalf of a presidential campaign.
HOROWITZ: Moreover, proceedings before the Foreign Intelligence Surveillance Court, which is responsible for ruling on applications for -- applications for FISA orders are ex parte, meaning that unlike most court proceedings, the government is the only party present for the proceedings, and FISA orders have not been subject to scrutiny for subsequent adversarial proceedings like court -- like court-authorized search warrants and wiretap applications are potentially through the criminal process.
In light of these concerns, the FISA statute and department and FBI policies and procedures have established important safeguards to protect the FISA application process from irregularities and abuse. Among the most -- among the most important are the requirements in FBI policy that every FISA application must contain a, quote, "full and accurate," close quote, presentation of the facts, and that agents must ensure that all factual statements in FISA applications are, quote, "scrupulously accurate," close quote. These are the standards for all FISA applications regardless of the investigation's sensitivity, regardless -- I'm sorry -- and it is incumbent upon the FBI to meet them in every application.
Nevertheless, we found that investigators failed to meet their basic obligations of ensuring that the FISA applications were scrupulous -- scrupulously accurate. We identified significant inaccuracies and omissions in each of the four applications: seven in the first application, and a total of 17 by the final renewal application.
For example, the Crossfire Hurricane team obtained information from Steele's primary sub source in January 2017 that raised significant questions about the reliability of the Steele reporting. This was particularly noteworthy because the FISA applications relied entirely on information from the -- from the Steele -- I'm sorry -- from the primary sub source's reporting to support the allegation that Page was coordinating with the Russian government on 2016 U.S. presidential election activities. However, the FBI did not share this information with department lawyers, and it was therefore omitted from the last two renewal applications.
All of the applications also omitted information that the FBI had obtained in August 2017 -- sorry, August 2016 from another U.S. government agency detailing its prior relationship with Page, with Carter Page, including that Carter Page had -
had been approved as an operational contact for that other agency from 2008 to 2013; that Page had provided information to the other agency concerning his prior contacts with certain Russian intelligence officers; and that an employee of that other agency assessed that Carter Page had been candid with them. The FBI never followed up on that information.
As a result of these seven significant invest -- inaccuracies and omissions, relevant information was not shared with, and consequently considered by department lawyers and the FISA Court, and the FISA applications made it appear as though the evidence supporting probable cause was stronger than was actually the case.
We also found basic, fundamental and serious errors during the completion of the FBI's factual accuracy reviews, known as the Woods Procedures, which are designed to ensure that FISA applications contain a full and accurate presentation of the fact. Department lawyers and the court should have been given complete and accurate information so they could have meaning -- meaningfully evaluated probable cause before authorizing the surveillance of a U.S. person associated with a presidential campaign. That did not occur, and as a result, the surveillance of Carter Page continued even as the FBI gathered information that weakened the assessment of probable cause and made the FISA applications less accurate.
We concluded that investigators did not give appropriate consideration or attention to facts that cut against probable cause, and that as the investigation progressed and more information tended to undermine or weaken the assertions in the FISA applications, investigators did not reassess the information supporting probable cause.
Further, the agents and supervisory agents did not know -- did not follow or even appear to know certain basic requirements in the Woods Procedures. Although we did not find documentary or testimonial evidence of intentional misconduct, we also did not receive satisfactory explanations for any of the errors or omissions we identified. We are -- we found, and as we outline here, are deeply concerned that so many basic and fundamental errors were made by three separate hand-picked investigative teams on one of the most sensitive FBI investigations after the matter had been briefed to the highest levels within the FBI, even though the information sought through the use of FISA authority related so closely to an ongoing presidential campaign, and even though those involved with the investigation knew that their actions would likely be subjected to close scrutiny.
The circumstances reflect a failure, as we outline in the report, not just by those who prepared the applications, but also by the managers and supervisors in the Crossfire Hurricane chain of command, including FBI senior officials who were briefed as the investigation progressed. We believe that in the FBI's most sensitive and high-priority matters, and especially when seeking court permission to use an intrusive tool such as a FISA order, it's incumbent upon the entire chain of command at the organization, including senior officials, to take the necessary steps to ensure that they are sufficiently familiar with the facts and circumstances supporting and potentially undermining a FISA application in order to provide effective oversight consistent with their level of supervisory responsibility.
Such oversight requires greater familiarity with the facts than we saw in this review, where time and again during our OIG interviews, FBI managers, supervisors and senior officials displayed a lack of understanding or awareness of important information concerning many of the problems that we identified. That is why, as you will see in the report, our final recommendation was to refer the entire chain of command that we outline here to the FBI and the department for consideration of how to assess and address their performance failures.
Additionally, in light of the significant concerns we identified, the OIG announced this week that we were initiating an audit that will further examine the FBI's compliance with the Woods Procedures in FISA applications that target U.S. persons not only in counterintelligence investigations, but also importantly, in counterterrorism investigations.
The OIG report made a number of other recommendations to the department and the FBI. We believe that implementation of those recommendations, including that for those that seek
individual accountability for the failures identified in our report will improve the FBI's ability to more carefully and effectively utilize its important national security authorities like FISA, while also striving to safeguard the civil liberties and privacy of impacted U.S. persons. The OIG will continue to conduct rigorous oversight of these matters in the months and years ahead, including the recommendations that we made in this week's report.
HOROWITZ: And that concludes my statements and I'd be pleased to answer any questions the committee may have.
GRAHAM: Thank you very much, and again to your team, thank you for the service you've done to the country here. The FBI -- former FBI Director James Comey said this week that -- that your report vindicates him. Is that a fair assessment of your report?
HOROWITZ: I -- you know, I think the activities we found here don't vindicate anybody who touched this...
GRAHAM: Let's run a clip here. This is what Comey said in 2018. It would be nice to have sound, do we have sound? Never mind, I'll read it. Director Comey -- the reporter's asking him "can I ask you a question on FISA abuse? It's a major issue for the Republicans. Do you have the total confidence in the dossier when you used it to secure a surveillance warrant and also in the subsequent renewals?" This was asked in December of 2018, about a year ago.
Comey, "I have total confidence that the FISA process was followed, that the entire case was handled in a thoughtful, responsible way by DOJ and the FBI. I think the nation -- I -- I think the notion that FISA was abused here is nonsense."
Would it be fair to say that you take issue with that statement?
HOROWITZ: Certainly our findings were that there were significant...
GRAHAM: So when Comey speaks about FISA, you shouldn't listen. You should listen to Mr. Horowitz. He's not vindicated and to be concerned about the FISA warrant process is not nonsense. Christopher Steele, is it fair to say that he had a political bias against Donald Trump?
HOROWITZ: He -- given who he was paid for, there was a bias that needed to be disclosed to the court.
GRAHAM: Does it seem that he personally had a bias? Not just cause he was on the payroll of the Democratic Party but he...
HOROWITZ: Well we found in the course of this and heard from Mr. Ohr, about his comment to him, that he was desperate to prevent Mr. Trump's election.
GRAHAM: Again, this is the -- the guy that provides the dossier that gives the warrant over the top against Carter Page. He's paid for by the Democratic Party and he personally believes it's bad for Donald Trump to win. He's marketing the dossier, which is a bunch of garbage, to anybody and everybody. To me, that's important. Is that important to you?
HOROWITZ: Any evidence of bias is supposed to be disclosed to the court and to the department lawyers.
GRAHAM: OK. So let's play this out. In January of 2017, when they figure out the primary subsource, and he talked to the -- to the Russian guy that provided Steele all of the information, what should the FBI have done at that moment?
HOROWITZ: Two things. We considered internally where things stood and, most importantly, told the lawyers at the Justice Department who they were asking to help them get a FISA.
GRAHAM: And there are five people in that interview, right?
GRAHAM: OK. Are you going to make sure those five people are known to the higher ups?
HOROWITZ: They are all part of the referral that I mentioned earlier.
GRAHAM: OK. Did they have a duty to report to their supervisors and eventually to the court exculpatory information?
GRAHAM: They did not?
HOROWITZ: They did not.
HOROWITZ: That's the question I can't specifically answer for you.
GRAHAM: Can you say it wasn't because of political bias?
HOROWITZ: On -- on decisions regarding those FISA matters, I do not know their state of mind at this point.
GRAHAM: So we're talking about actions now in trying to figure out what would motivate people. Do you think Comey, McCabe should have known?
HOROWITZ: That's a challenging question. As we explain in the report, there were multiple briefings up the chain, including to the Director and the Deputy Director. We don't have a clear record of what they were told, and as you know, as information flows upstream...
GRAHAM: Would you be surprised that it didn't make it up the system, something this earth-shattering?
HOROWITZ: I -- I'm not going to speculate as to why -- put it (ph) might or might not.
GRAHAM: Did Strzok know?
HOROWITZ: So Mr. Strzok's -- there were three iterations of the team. Mr. Strzok actually transitions off as the -- as -- on this matter in January of 2017. So it's not -- I might have to go back and look precisely...
GRAHAM: Well in February, he mentions that Steele can't verify...
GRAHAM: So pretty clear to me that it got up. So the court should have been told they were not.
GRAHAM: How did they describe this meeting to the court in the warrant application? HOROWITZ: So in the second and third -- in the second and third renewals, the last two applications, they told the court that they had interviewed Steele's primary subsource, who -- upon whom Steele relied in writing the reporting, and that they found the primary subsource to be credible.
They did not tell the court or the department lawyers any of the information which would have allowed them to know that if you found the primary subsource credible, you couldn't have also found the Steele report incredible (ph).
GRAHAM: Did they mislead the court?
HOROWITZ: That was misleading to the court and to the department to not...
GRAHAM: So they did two things in January of 2017. They failed to report obviously exculpatory information, and when they did report to the court about the interview, they lied about it.
HOROWITZ: Let -- let me add also...
HOROWITZ: ... that a year later, in February -- in -- in June of 2018, when the department sent a Rule 13 letter to the court informing them of other information that had not been provided to the court, the department still didn't know about the primary subsource information. And so when the department in its letter said that it still stood behind the FISA applications, they referenced the primary subsource again and the fact that the FBI found that person credible.
GRAHAM: So are these the best and brightest we have?
HOROWITZ: Well certainly the FBI -- the actions of the FBI agents on this were not...
GRAHAM: So McCabe hand picks these people. Are they representative of the department as a whole, in your view?
HOROWITZ: I certainly hope that that is not the way others are following these practices.
GRAHAM: Yeah, me too. OK, so let's fast forward now to June of 2016. Mr. Clinesmith, who's he?
HOROWITZ: I'm going to defer on speaking about people who we don't name specifically in the report.
GRAHAM: Who's the guy that alter -- tell me about the guy that altered the e-mail from the CIA.
HOROWITZ: So there was a lawyer in the Office of General Counsel at the FBI who was the line attorney working with the agents and counterparts at the National Security Division on the FISA. And that individual, in June of 2017 as the last application was being prepared, and immediately following Mr. Page -- Carter Page going to news outlets after word of the FISAs hit the news media, and said to the news media I was someone who worked with U.S. intelligence agencies, not someone who works -- worked against them, lawyers and agents went and said we've got to figure out what's the story. Is that what happened? The lawyer -- the OGC attorney for the FBI reached out to a liaison at the other government agency that was at issue, asked the question is, was Mr. Page a source or a contact of some sort for your organization? The report back in the e-mail referenced the August 2016 memorandum that that agency had provided to the FBI that I mentioned (inaudible) the August 2016 memorandum that that agency has provided to the FBI that I mentioned in my opening statement, the FBI did no follow-up on.
Mr. Page was or is someone who still -- who had a relationship with the entity, with the other government agency, but that the lawyers should go look at the report for confirmation.
The lawyer then had a conversation with the FBI agent who was going to be the affiant, the person who swore out that final application, FISA application. The agent told us and has detailed in here, was concerned about what he had learned about what Page said publicly, and wanted a definitive answer, as he put it, as to whether Page was...
GRAHAM: Thus if the agent -- if -- if Carter Page was actually telling the truth, that changes one of the predicates to consider him a foreign agent.
HOROWITZ: That was the concern of the agent. And it was the agent who was going to be swearing out...
GRAHAM: If (inaudible), it would be helpful to Mr. Page.
HOROWITZ: A true it -- it certainly could have and may well have been very helpful to Mr. Page.
HOROWITZ: But it's -- at a minimum, without any doubt, it should have been known, it should have been followed up on and it should have been told (ph)...
GRAHAM: But what did this lawyer do?
HOROWITZ: ... to (ph) the FBI.
When the lawyer had the discussion with the agent, and the agent said, I want to see it, do you have it in writing? The lawyer said he did. And he forward the liaison's e-mail, but altered it to insert the words, "and not a source," into the e-mail.
GRAHAM: So he doctored it?
HOROWITZ: He doctored the original e-mail from the liaison.
GRAHAM: And made it look like the CIA denied knowing Mr. Page.
HOROWITZ: It flatly stated that he was not a source.
GRAHAM: OK. Now, just imagine, folks, you're representing somebody as a defense attorney and they do this to one of your clients. I hope somebody pays a price for this, whether you like Trump or not.
So why did Mr. Clinesmith -- that's who we're talking about, you (inaudible) have said, I'll say it -- what motivated him to do that?
HOROWITZ: It is unknown as to precisely why he did it, but...
GRAHAM: This is the viva la resistance guy.
HOROWITZ: Right. I was going to mention, we -- but we referenced in here, the -- the text messages you mentioned, and we have...
GRAHAM: Yeah, yeah.
HOROWITZ: ... not made a determination, but rather, as we note in here, when we learned this, we notified the attorney general and the FBI director and referred it to...
GRAHAM: No (ph), you -- you did a great job. The old adage is, if you wake up and there's -- the lawn is wet, you can assume it rained. If you got a guy who hates Trump's guts from day one, thinks Pence is stupid and everybody who voted for Trump's an idiot, and you give him power over Trump, maybe you're making a mistake.
Or, again, maybe, you know, all these people who had these biases did nothing about it, you know? Maybe, maybe not. It doesn't really matter, we know what they did.
Is it fair to say that after January of 2017, when the guy who gave Steele all of the information disavows the dossier, that not only they should have told the court, they should have slowed down. Do you think the second and third warrants had a legal basis after that point?
HOROWITZ: You know, we don't reach that conclusion and I'm not going to here (ph)...
GRAHAM: Would you have submitted -- would you have submitted a warrant application as a lawyer?
HOROWITZ: Let me put it this way. I would not have submitted the one they put in...
HOROWITZ: ... no doubt about it, it had no business going in with that proposal.
GRAHAM: So what I want you to know is, in January 2017, the whole foundation for surveilling Carter Page collapses. Exculpatory information is ignored, they lie to the court about what the interview was all about. Is that a fair summary so far, about the January 2017...
HOROWITZ: I'll -- they certainly misled the -- it was misleading to the court, what was...
GRAHAM: OK, fair enough. And in January, about six months later, when they find more information that could be helpful to Mr. Page, they lie about it. Do you feel like Mr. Page was treated fairly by the Department of Justice and the FBI?
HOROWITZ: I don't think the Department of Justice fairly treated these FISAs, and he was on the receiving end of the FISAs.
GRAHAM: You would not want to be on the receiving end of this, would you?
HOROWITZ: I would not want agents or anybody failing to put forward all the information they're obligated to tell the court on. I was in AUSA, I've seen what can happen -- occur if that happens.
GRAHAM: What would (ph) -- I would be very comfortable with you investigating anybody because I think you know the difference between getting somebody and trying to find the truth. That's what this is all about.
The counterintelligence investigations. What's the purpose of a counterintelligence investigation?
HOROWITZ: It's to identify potential threats to the nation.
GRAHAM: OK, this was opened up as a counterintelligence investigation, right?
GRAHAM: And we know the Russians were screwing around with the Democrats, right?
GRAHAM: That's one of the concerns. It was the Russian who hacked into the DNC.
GRAHAM: ... got their e-mails?
GRAHAM: So it's OK for everybody to be concerned, what are the Russians up to? I get that. It's OK to look at -- what's the standard to start one of these things?
HOROWITZ: There are two types of investigations. Both of them have relatively low thresholds, as we point out here, for predication.
GRAHAM: OK. So let's assume for a moment that relatively low threshold was met. Would it be fair to say that if you stop there in looking at your report, you're making a mistake?
HOROWITZ: You would be making a mistake. There is a -- there is 400 pages here for a reason.
GRAHAM: There's a mountain of misconduct, please don't ignore it. So my point is, if this is a counterintelligence investigation, who are they trying to protect? Who should they be trying to protect?
HOROWITZ: Well, if it's a -- the threat outlined in the friendly (ph) foreign government information, you would be looking to protect the election process...
HOROWITZ: ... which would include...
GRAHAM: The candidate?
HOROWITZ: ... the campaign, the candidate and the American people.