On a day chock-full of news about the FBI and the House’s FBI/FISA memo, the New York Times had an article that appears to contain information leaked from the memo – an article posted on Sunday 28 January, the same day FBI Director Christopher Wray reportedly reviewed the memo on Capitol Hill.
The information itself is that shortly after his appointment as Deputy Attorney General on 26 April 2017, Rod Rosenstein approved a FISA application to extend FBI surveillance of Carter Page, the man who was linked to the Trump campaign as one of a volunteer group of foreign-policy advisers in 2016.
That means the FBI and DOJ wanted to continue surveillance that had started before the November 2016 election. The extension request came months after Page had left the campaign (in September of 2016), and three months after Trump took office – with Page being unconnected to the Trump White House in any way.
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That is an interesting piece of information on its face. To put things in perspective, let us observe up front that the FBI had been rooting through Page’s communications since a date before the election in 2016, and yet had not found anything actionable relating to Page. Nevertheless, the FBI wanted to keep the surveillance authority going. We’ll think about that more in a moment.
The NYT piece intends to emphasize three themes. One is a theme that the House Republicans now have Rosenstein in their sights, because he signed the approval to apply for a surveillance extension. The implication is that the Republicans think Rosenstein behaved improperly, perpetuating the use of a FISA warrant that was gained based on the Steele dossier – which was birthed as Democratic opposition research against Trump for the 2016 campaign.
The second is that the Justice Department “saw reason to believe” that Carter Page was acting as a Russian agent. No new information is offered to bolster the case on that, which has never led anywhere, in spite of often-repeated comments about Page’s meetings with Russians in 2013 and July of 2016. The FBI has apparently been investigating those events (some of them for years now) without turning up anything.
The third theme is that President Trump is frustrated with Rosenstein. There is no need to discuss at length the import that theme is supposed to have.
But none of those themes is what matters about Rosenstein, sometime after 26 April 2017, approving a request to extend surveillance of Page.
What matters about it is that if the request was approved, it enabled the FBI to continue a backward-looking hunt through Page’s communications (as preserved in the vast NSA database), including his communications with members of the Trump campaign organization in 2016.
In other words, it kept open the door to linking Page’s communications with the activities of Trump’s campaign. As long as the FBI had a warrant to hunt through Page’s communications history, the Bureau’s analysts could keep trying to find something that would implicate the Trump campaign in whatever Carter Page was doing.
It’s doubtful that Page was in meaningful contact with the Trump White House in 2017, or with anyone connected to Trump that the FBI would find interesting. And it’s equally doubtful that Page’s communications in 2017 – communications unrelated to Trump or the White House – were really what the FBI was after.
To continue a forensic probe of the other entities that were in communication with Page in 2016, it was necessary in 2017 to get the FISA warrant on Page extended. The FBI would have to jump through additional hoops to identify those other entities – if they were thought to be U.S. persons – since they didn’t have a warrant for anyone but Page. But if the door closed on the Page communications probe, it wouldn’t reopen on any of those others he was communicating with in 2016 who were U.S. persons.
(If they were Russians abroad, the FBI could probe their comms as necessary; they wouldn’t have Fourth Amendment rights. But it’s been clear for some time that Page – although a very small fish – was the hook for the FBI to try to tie other comms information in the NSA database to the Trump campaign. In terms of existing data points, there may well have been nothing additional to harvest from what’s in the database. But keeping the FISA warrant on Page alive was what kept any fresh use of the collateral comms information formally legitimate.)
Several major publications like NYT and The Atlantic have expressed skepticism about the Republicans’ reported characterization of Rosenstein’s move in the House’s FBI/FISA memo. The implication is that the House GOP is trying to make it look bad, by tying the FISA application for Carter Page to the dossier, and thus impugning the original reason for it.
But if you understand what the FBI could do with continuing FISA “surveillance” authority, and the likelihood that that’s the main thing the FBI was doing, it’s easier to see why the House Republicans would think it’s appalling.
If I were a member of the House Intelligence Committee, what I’d want to see is exactly what searches FBI analysts were running on Carter Page after Trump took office – in fact, after he won the election – and especially after 26 April 2017. I’d want to see the results of those searches, and see affirmative proof that they were about Page potentially being a Russian agent, and about Page having dangerous connections to Russians in 2017, and that the FBI focused on those points, and drew conclusions about those points specifically.
My guess is that an examination of the FBI’s work product on Carter Page under the extended FISA warrant in 2017 would not show that. We’ll see what we find out when the memo is released. Just don’t get confused about what matters here. Extending the Carter Page warrant allowed the FBI to continue hunting through the Page-related comms of whoever Page was in contact with in 2016, even though it was 2017, those searches had already been done, and the administration in the Oval Office had changed since then.
