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As part of its Trump-Russia investigation, the FBI obtained four FISA surveillance warrants on former Trump Campaign foreign policy advisor Carter Page. Michael Horowitz, Inspector General for the Department of Justice, reviewed the applications for these FISA warrants and found 17 errors in them, including one instance of intentional wrongdoing by an FBI staffer, but did not conclude that any of the FISA warrants were invalid or lacked a sufficient factual basis to be approved.

But apparently the DOJ itself has reached such a conclusion. The Foreign Intelligence Surveillance Court (FISA court) just declassified an order it issued on January 7, which says this:

DOJ assesses that with respect to the applications [for the last two FISA warrants], “if not earlier, there was insufficient predication to establish probable cause to believe [Carter] Page was acting as an agent of a foreign power.” ... The Court understands the government to have concluded, in view of the misstatements and omissions, that the Court’s authorizations [in the last two FISA warrants] were not valid.

My question is, who exactly in the DOJ made the determination that the last two FISA warrants were invalid?

Was Attorney General Bill Barr involved in this assessment, given his negative feelings towards the Trump-Russia investigation? Was John Durham, US Attorney for the District of Connecticut, involved, given that Barr tasked him with looking into beginnings of the Trump-Russia investigation including the Carter Page FISA Warrants? Was the Office of Legal Counsel involved, given that it’s the one that makes legal opinions for the DOJ?

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It was a direct result of the FISA court hearing about the two warrants. It would appear the lawyers representing the Justice department made the determination during the hearing.

The Department of Justice admitted in December that two of the FBI’s four surveillance warrants to electronically monitor ex-Trump campaign adviser Carter Page were invalid, according to a declassified Foreign Intelligence Surveillance Court order published on Thursday.

James Boasberg, presiding judge of the U.S. FISA Court, wrote on January 7 that the DOJ had assessed in its filings to the court last month that “if not earlier, there was insufficient predication to establish probable cause to believe that [Carter] Page was acting as an agent of a foreign power” in the FBI’s investigation into the Trump campaign and Russia.

Therefore, Boasberg wrote, “[t]he Court understands the government to have concluded, in view of the material misstatements and omissions, that the Court’s authorizations in Docket Numbers 17-375 and 17-679 were not valid,” referring to two of the FISA warrants.

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    Note there are a couple of very interesting bits of information in the FISC order linked. First, the letter mentioned is dated December 9, 2019. That's the same day that the DoJ IG released it's report on FISA abuse. Even more interesting is the letter is characterized as a "Rule 13(a) letter". Rule 13(a) is "Compulsory Counterclaims" in the "Federal Rules of Civil Procedure". There is no Rule 13(a) that I can find in the "Federal Rules of Criminal Procedure". – Just Me Jan 24 at 21:38
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    (cont) But Rule 13 in the "Federal Rules of Criminal Procedure" is "Joint Trial of Separate Cases". There appears to be something going on here we don't know about. Assuming the Civil Procedure rules are applicable here, one wonders what is happening. – Just Me Jan 24 at 21:40
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    @JustMe This is indeed very strange and mysterious. Who ever heard of a court, especially one that is as secretive as the FISA court, essentially announcing a Justice Department decision?! – Karlomanio Jan 24 at 23:14
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    This doesn’t answer my question. The order does say that the government stated in its filings that it believed that two of the FISA weren’t were invalid. But that doesn’t mean that the lawyers who wrote the filing were the ones who actually made that determination. I assume other DOJ officials were involved in the decision-making provesss, and that the lawyers who wrote the filing were just conveying the DOJ’s position to the court. – Keshav Srinivasan Jan 24 at 23:24
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    @JustMe It’s not referencing either the Federal Rules of Civil Procedure or Federal Rules of Criminal Procedure. It’s referencing Rule 13(a) of the FISA Court’s Rules of Procedure: “If the government discovers that a submission to the Court contained a misstatement or omission of material fact, the government, in writing, must immediately inform the Judge to whom the submission was made...” fisc.uscourts.gov/sites/default/files/… And McCabe wasn’t fired for anything FISA-related, he was fired for leaking info damaging to Hillary and lying about it. – Keshav Srinivasan Jan 25 at 19:15
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There have apparently been a series of FISC Rule 13 letters from the DOJ to the FISA Court (FISC); only some of them have been declassified. One letter (dated July 28, 2018) was signed by John C. Demers, Assistant Attorney General for National Security. In that July letter, an explicit conclusion was stated that despite disclosures it revealed, "the applications contained sufficient predication for the Court to have found probable cause that Page was acting as an agent for the Government of Russia."

In subsequent FISC Rule 13 letters, specifically the one dated December 9, 2019, the DOJ must have disclosed the IG's discovery that an FBI attorney had altered evidence submitted to the court to conceal relevant information. It seems likely that in writing this letter, the DOJ (probably Mr. Demers and/or his staff) did not repeat the earlier assertions that the additional information was not material to the question of probable cause. More likely, the DOJ decided to stop telling the FISC that the applications remained valid, and may not have included any specific legal conclusion, as this is not required under FISC Rule 13.

The court's public response then may have been comparing the July and December letters from the DOJ, noting the latter's missing assertion of sufficient probable cause, and thus assuming the opposite was true.

Whether or not a conclusion was explicit in the DOJ filing, no one in the DOJ is going to argue the Court's understanding is wrong. The FBI and DOJ are conceding the point implicitly in the plan to sequester the materials.

It seems nearly certain that the letter to the Court would have been submitted by John Demers, Assistant Attorney General for the National Security Division (NSD). Of course, Mr. Deemers would have had others participating it its drafting to ensuring that this latest Rule 13 letter disclosed everything Mr. Horowitz's findings included.

On December 11, I.G. Horowitz acknowledged that in general, FISA surveillance [of an American] without legal foundation is “illegal surveillance,” but left it to the FISA Court to rule on this specific case, saying they now had the information they needed. See video clip.

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    First of all, I’d like to make clear that neither the IG nor the FISA court have said that they believe that any FISA warrant applications lacked a proper legal foundation or that they were invalid. Second of all, the Court directly quotes the DOJ as saying “there was insufficient predication to establish probable cause”. So I’d like to know who exactly in the DOJ made that determination. Did John Demers conclude that, or was he just conveying a determination made by others DOJ officials, of what? I’d especially like to know if Bill Barr was involved, given his antipathy to the investigation. – Keshav Srinivasan Jan 26 at 12:56
  • Wray’s quote is taken completely out of context. He did not say that he believes that some of the FISA warrants lacked sufficient predication. Ratcliffe said that the IG Report along with the DOJ and the FISA court said that some of the FISA warrants lacked sufficient predication, and then said “Correct?” to which Wray responded “Right”. He was saying that Ratcliffe was right in saying that those people had said it, he wasn’t saying that they actually lacked sufficient predication. And anyway, as a factual matter Ratcliffe was wrong; at the very least the IG report said no such thing. – Keshav Srinivasan Jul 7 at 22:36
  • In any case, this answer still doesn’t answer my question of who in the DOJ made the determination. Did Demerara decide himself that two of the FISA warrants lacked sufficient predication, or was he merely informing the court of a determination made by Barr or other DOJ officials? – Keshav Srinivasan Jul 7 at 22:38
  • Ultimately, the legal conclusions are left to the Judge, not the DOJ. The DOJ has not disputed or appealed what Jodge Boasberg said. – Burt_Harris Jul 9 at 0:47
  • It's also worth noting that Judge Boasberg has never said that he thought the FISA warrants lacked proper predication. He just said that the DOJ thought so. – Keshav Srinivasan Jul 11 at 13:50

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