Michael Horowitz, the Justice Department’s Inspector General, released his review of the four FISA applications targeting Carter Page the week before this hearing. One sentence in it, about what the review did and did not find, was being quoted by both sides. On December 18 he came before the Senate Homeland Security Committee, and the first thing the chairman wanted was that sentence parsed.
What the report found
We found that investigators failed to meet their basic obligation that the FISA applications be "scrupulously accurate." We identified significant inaccuracies and omissions in each of the four applications: 7 in the first FISA application and a total of 17 by the final renewal application.
We 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 FISA authority related so closely to an ongoing Presidential campaign; and even though those involved with the investigation knew that their actions were likely to be subjected to close scrutiny.
[Hearing transcript, December 18, 2019, opening statement of Inspector General Horowitz.]
The chairman parses one sentence
JohnsonBefore we start the clock on me, I did want to provide some clarity. I was going to do this in my opening statement, but I think it is best to have just a quick little exchange here. In a number of places, not only this Inspector General's report but also in the Midyear Exam, you have a similar statement, and I am going to quote: "We did not find documentary or testimonial evidence that political bias or improper motivation influenced the decisions" fill in the blank. You have used it in a number of cases now. I know we talked earlier about you are pretty confident there was no political bias in the opening of the investigation with Bill Priestap.
HorowitzWe did not find evidence, and as to him, we knew who made the decision. We could focus specifically on him.
JohnsonBut in both these investigations, you found political bias?
HorowitzWe found through the text messages evidence of people's political bias, correct.
JohnsonAlso political motivation, for example, Bruce Ohr talked about how Christopher Steele was desperate to make sure that President Trump did not become President.
HorowitzAs to Mr. Steele, that was, of course, a very important part of this discussion, is when they understood his motivations and his potential bias, and we have the November statement from Mr. Ohr that he had been told by Mr. Steele that he was desperate to prevent----
JohnsonSo, again, you are not denying there is certainly evidence of bias; there is certainly evidence of political motivation. But what you are saying--and this is what I want to clarify because I think this has been misconstrued and misused, depending on where you put it. You are not saying that that bias did not potentially influence that. You are just saying you had no evidence that it did. Is that an accurate statement?
HorowitzWe have no evidence that it did. We laid out here what we did to find bias or evidence of bias. We put this report out here so the public can read it, look at the facts themselves. But we did not find exactly what we said, documentary or testimonial evidence of bias. Nothing more, nothing less.
JohnsonBut you are not saying you did not, that it did not. You did not find evidence that it did, but you also did not find evidence that it did--you are not saying that this bias or motivation did not influence. You are not making that declarative conclusion. Correct?
HorowitzAgain, I want to carve out the opening and the predication.
JohnsonPriestap versus the others.
HorowitzBecause that decision was made by one person, we knew who made the decision, understanding that there were questions raised by people above and below him. As to the other decisions, for example, the FISA decisions and the errors and the problems, we do not reach a motivation conclusion precisely because of the concerns we have on that. So I think it is important for readers to read the report themselves. We talked about this before the hearing. Our job as Inspectors General is to do what I know all of you expect us to do: transparency, get the facts out there. And that is what we have tried to do here.
JohnsonSo you are leaving it up to the reader, to the American public, to judge whether the bias and the motivation that you have uncovered, to what extent did that potentially influence decisions throughout this process.
HorowitzWe are drawing the only conclusions we felt comfortable drawing here, and the public can read, and an informed public is very important for all of these purposes.
JohnsonJust one final follow-up. What kind of evidence would you require, literally an oral confession or a text saying, "I so hate this guy that I am going to choose this path versus the other"?
HorowitzSo it was very hard to look at all this evidence and obviously, as we all know, get in people's minds. What was the motivation for decisions to be made? What we looked at was: Who touched the decision? Did we find evidence through text messages, emails, witness interviews? We sometimes do get--not in this case, but we do sometimes get whistleblowers and other people coming to us and saying, "I think so-and-so made a decision for an improper purpose," and we as IGs look at that.
[Hearing transcript, December 18, 2019, questioning by Chairman Johnson.]
The ranking member takes the same sentence the other way
Ranking Member Gary Peters opened by asking for the answers as yes or no.
PetersThank you, Mr. Chairman. I just want to clarify, after some of that line of questioning, just so we are clear for the record, and you can answer these first couple of questions with yes or no if that works for you, Mr. Horowitz. Did you find any documentary or testimonial evidence that the decision to open the investigation was political?
HorowitzWe did not.
PetersDid you find any documentary or testimonial evidence that the decision to open the investigation was motivated by bias against President Trump?
HorowitzWe did not.
PetersYour report states that in mid-2016 the FBI was investigating attempts by Russia to hack into political campaigns, parties, and election interference. Is that correct?
HorowitzRight. We put that in there for background purposes. Correct.
PetersYour report also states that the FBI received information from a friendly foreign government that Russia offered to assist the Trump campaign. Is that correct?
HorowitzCorrect. We lay out the precise words that Mr. Papadopoulos reportedly stated to the friendly foreign government.
PetersNow, your report does outline a number of problems with the FISA process, as you have elaborated on, particularly when it relates to questions from the Chairman regarding Carter Page. My question is: Did the FISA errors affect the investigation's other three subjects in your analysis?
HorowitzWe did not see information from the Carter Page events in the FISAs affecting the others. In fact, part of the concerns that we outline here is the lack of developing of information as to Mr. Page. So it was not developing, advancing the investigation precisely for the reasons we outline here, and by definition, therefore, not being of assistance or impacting the others.
PetersOK. So as you have identified a number of issues related to how the FBI used the FISA process, certainly those are things that need to be addressed, the Director has said that he is working to address. So my question is: Do you have any idea if, as you are quoted as saying, basic and fundamental errors were made in this process, is there any idea that this is kind of a systemic problem in the FBI? Or did this only occur with this particular investigation? Or do you think this is much broader that we have to deal with in a broader sense?
HorowitzAs you know, as an IG I will speak to what we found here, and that is, frankly, why we started the audit, because the concern is this is such a high-profile, important case. If it happened here, is this indicative of a wider problem? And we only will know that when we complete our audit. Or is it isolated to this event? Obviously, we need to do the work to understand that.
PetersSo if I recall from your testimony here today, the errors that were occurring, the fundamental errors and basic errors related to the FISA process, you did not find any evidence that there was political bias there, no documentary evidence. The errors occurred and those are troublesome, but you did not necessarily link those to any political bias. Is that accurate?
HorowitzI want to draw a distinction there. What we did not find was, as they were considering in August and September whether to seek a FISA, we did not see evidence there in those communications. But as to the failures that occurred, we did not find any of the explanations particularly satisfactory--in fact, unsatisfactory across the board. In the absence of satisfactory answers, I cannot tell you as I sit here whether it was gross incompetence--and I think with the volume of errors you could make an argument that that would be a hard sell, that it was just gross incompetence--to intentional or somewhere in between and what the motivations were. I can think of plenty of motivations that could have caused that to occur, but we did not have any hard evidence that I can sit here and tell you why did these occur. I can tell you they occurred. I can tell you we did not get good explanations. But I cannot tell you why.
PetersBut it is conceivable those bad explanations are a result of a systemic problem with the FISA process, so it is difficult--I would ask--it would probably be extremely difficult to answer that question until you complete your further audit to see whether or not this is a systemic problem within the FBI that has to be corrected. It was not something just with this particular case. Is that accurate? How would you look at that?
HorowitzWe certainly would not make any conclusion about systemic or not. As to the failures here, in the absence of the satisfactory answers and given how basic some of these were, how fundamental, this was not an error because this was too complex, you did not understand that the fact you gathered here was inconsistent with the fact you were relying on the error in the FISA. These should have been told, and I think you see this in the FISA Court opinion yesterday.
PetersRight.
HorowitzThese should have been told. These were basic, fundamental errors. It is hard to figure out what the rationale is, which is why we are not sure what the motivation was.
PetersI just want to clarify. The way you will know that is, as you are looking at other cases through your audit and you find that these are occurring on a pretty regular basis, that may be something that--why we have to correct the FBI, the reason they were fundamental is because they are making these fundamental errors in a lot of other cases, and we need to make some reforms.
HorowitzRight, and it could be--if you look at the others and you find similar errors and bad explanations there, it may be one answer. Frankly, if you find no other errors there, that would be particularly concerning, right, as to this one.
PetersRight.
HorowitzWhy then in this one? So I think we need to understand----
PetersBut that is why we need the audit.
[Hearing transcript, December 18, 2019, questioning by Ranking Member Peters.]
What you cannot prove
Senator Rand Paul, whose objection was to the FISA process itself rather than to either party’s reading of the report, asked what an absence of evidence establishes.
PaulI would say that when we look at bias, I guess the first question would be a short question, just to reiterate and make sure it is very clear. You did find evidence of biased individuals who were involved with the investigation.
HorowitzThat is correct.
PaulOK. I think that is very clear. And is it difficult to determine what people's motives are, whether biased or not biased?
HorowitzIt is very difficult.
PaulRight. And so just by saying you did not find it, it does not mean it did not exist; it does not mean you could not have had 15 people very biased who influenced every one of their decisions. You just cannot prove it.
HorowitzWe could not prove it. We lay out here what we can prove.
PaulOK. One specific instance I would like to ask you about, though. The Office of General Counsel (OGC) attorney is the one I think you have referred for criminal evaluation. Correct?
HorowitzI will just say we have referred it to the Attorney General (AG) and the FBI.
PaulOK, and that is the possible criminal evaluation. He also had text messages that said "Viva la resistance." Did you interpret those to be--or what is your opinion? Does that show that he might have had some bias against the Trump administration?
HorowitzHe was one of the individuals in last year's report precisely for those text messages that we referred to the FBI precisely for that concern.
PaulYou interpreted that as evidence of bias, but I guess my question would be, if you saw that he was biased, he has obviously made errors that you think actually may have been intentional. Why in that instance would you not be free to say that there is documentary evidence of not only bias but then malfeasance?
HorowitzThat is precisely why we do not say that as to the errors, the failures in the FISA process.
PaulCould you then specifically say the opposite, that actually in this instance there actually was evidence of political bias and evidence of record changing that looks like malfeasance?
HorowitzThere is evidence of both. I agree with you. But I want to make sure there is a fair process----
[Hearing transcript, December 18, 2019, questioning by Sen. Paul.]
How many people
Senator Josh Hawley wanted a headcount.
HawleyThank you, Mr. Chairman. Mr. Horowitz, I see that the FBI continues to persist in characterizing the problem related to their surveillance issues here as "limited." And I see the FBI Director's statement yesterday, the FBI's statement yesterday makes it sound as if there is a limited problem. So let us just talk a little bit, if we could, about the scope of the problem at the FBI and how it is that the FBI came to be intervening in a Presidential election while the election was ongoing in the fall of 2016. First, let me just ask you when it comes to FISA warrants, surveillance warrants, are the targets of those warrants given an opportunity to defend themselves in court at the time the warrant is sought?
HorowitzNo.
HawleySo the Court relies on who to establish the facts?
HorowitzThe FBI and the Justice Department.
HawleySo there is nobody there to contest the facts. The Court only hears from one side. Is that correct?
HorowitzCorrect.
HawleyIs it normal in your experience, your knowledge, for the FBI to use as the principal basis for a surveillance warrant political opposition research paid for by a major political party?
HorowitzI cannot say that we have looked at any other FISA----
HawleyHave you heard of that being done before?
HorowitzI have not heard of it, and I can tell you there was obviously, as we lay out here, concern at the Justice Department among the lawyers involved as to that question.
HawleyAnd, indeed, the FBI, of course, knew very well the nature and source of this Steele dossier on October 11, 2016. After they were asked three times by a DOJ attorney, the FBI responded that Steele, and I am quoting now, "had been paid to develop political opposition research." This is right at the time that the FBI was going to the FISA Court and asking for a surveillance warrant in the middle of a Presidential campaign. Correct?
HorowitzThat is correct.
HawleyAnd so the FBI absolutely knew where this was coming from. What about the number of people involved? How many people at the FBI were involved in misleading the FISA Court by your count, your estimation?
HorowitzWe do not have a precise number of exactly who knew what when, but there were four different FISAs. There is a case agent, there is a supervisory agent who are reviewing each. There was some overlap so it is not eight. I think it is either six or seven who had both of those responsibilities, some of which, to be fair, were more egregious than others in terms of the mistakes and the failures that occurred. And then, of course, as we note here, the reason we refer people up the chain is there is information flow up the chain, and even though those individuals did not have direct responsibility under the Woods Procedures, as managers and supervisors, we believe they had a responsibility to ask probing questions they should have been asking and followed up on information they were getting to make sure they were in a position to effectively supervise.
HawleyI want to come back to the information flow up the chain in just a second. You say on page 65 of the report there were over a dozen agents, analysts, and one staff operations specialist in the original Crossfire Hurricane team, which would have included at least nine FBI agents and supervisors involved in overseeing the Carter Page investigation. By my count, just what you have said in the report, looking at an organizational chart, we are talking probably at least a dozen individuals who were directly involved in the Carter Page warrants the four times. Does that sound approximately correct to you?
HorowitzIn fact, there is the org chart here at the end of Chapter 3.
HawleyExactly.
HorowitzThere were different organizational charts, and people can see and follow this for themselves.
HawleySo we have about a dozen people at the FBI directly involved. That is a lot of people. The FISA Court pointed out yesterday that an electronic surveillance application under Federal law must be made by a Federal officer in writing upon oath or affirmation, and those individuals swear to the facts of the application. Yet we now know that in October and then three times--October 2016 and three times in 2017, these individuals deliberately, knowingly misled the FISA Court. I mean, that is really the nicest way to put it. Basically they lied to the FISA Court to get a surveillance warrant of an American citizen. Why would so many people do that?
HorowitzSo we lay out here the reasons. As I said, there are multiple teams, there are some more senior people, more junior people. We obviously try very carefully to lay out who knew what when and which people--so I want to be careful and not----
HawleyWere they just all incompetent? I mean, all of these people, they just could not--they did not--I mean, they were competent enough to deliberately mislead the FISA Court, to change submissions to the FISA Court, to alter emails. So it does not sound like they are very stupid to me. But, what is the explanation? Why over time, why would all of these people, four times over the space of half a year, deliberately mislead a Federal Court?
HorowitzWe do not make a conclusion as to the intent here, so I want to be clear about that. But that was precisely the concern we had, is what you lay out. There are so many errors. We could not reach a conclusion or make a determination on what motivated those failures other than we did not credit what we lay out with the explanations we got.
HawleyYes, it certainly was not the reasons that they offered to you, is what you----
HorowitzWe did not credit that, and, frankly, this is one of the reasons we were not able to but did not reach a conclusion, is we now have the Court weighing in and the Court wanting to understand what happened here as well.
HawleyYes. I think the scope here is what really alarms me, the number of people directly involved at the FBI, the repeated decisions to mislead, outright lie to the FISA Court, and the total implausibility of the explanations that these people offered you, I mean, again maybe they are incompetent, or maybe they had an agenda here. And I just want to put a fine point on that. Was it your conclusion that political bias did not affect any part of the Page investigation, any part of Crossfire Hurricane? Is that what you concluded?
HorowitzWe did not reach that conclusion.
HawleyBecause I could have sworn--in fact, I know for a fact that I have heard that today from this Committee, but that is not your conclusion?
HorowitzWe have been very careful in connection with the FISAs for the reasons you mentioned to not reach that conclusion, in part, as we have talked about earlier, the alteration of the email, the text messages associated with the individual who did that, and our inability to explain or understand what--to get good explanations so that we could understand why this all happened.
HawleyLet me just ask you about the information flow up the chain. We see that Director Comey, we know that Director Comey was briefed about Crossfire Hurricane in August 2016. Who else knew about this? On October 14, 2016, we know that Deputy Director McCabe gets a text message saying that the Deputy Attorney General wants to be part of a meeting, and the White House has asked the Department of Justice to host. Who at the White House knew about the Crossfire Hurricane investigation?
HorowitzSo as you know, we are not the Inspector General, over the White House or the Executive Office of the President, and so what we have access to are the records at the FBI and the Justice Department. I cannot answer questions about that as to who knew or who was involved beyond people in the Justice Department and the FBI.
[Hearing transcript, December 18, 2019, questioning by Sen. Hawley.]
The source who found zero
Senator James Lankford took the sequence after the election, when the FBI had formally closed Steele out as a source.
LankfordBruce Ohr is very curious in this process. The FBI "cuts off a relationship with Steele" early November and then makes it official November 17, 2016, saying we are going to have no more contact with Steele at all. But yet the next day the FBI for the first time pulls Steele's file, and they are still going through this after they have "cut him off," and then within days Bruce Ohr is then doing back-channel communications with Steele, and they continue to maintain back-channel communications with Steele. So was Steele cutoff as a source, or was the Crossfire Hurricane continuing to use him as a source, just not officially?
HorowitzWe concluded the latter, that while he was cutoff officially in FBI records, the FBI continued to meet with him through Bruce Ohr as the conduit on 13 different occasions.
LankfordWhy would Bruce Ohr continue to be able to meet with him? And why would he continue to be tasked to do that?
HorowitzWell, let me just be clear. He was not tasked to do it. As he said, he understood what the FBI was looking for from him. But he was able to do it because there were no clear rules that prohibited him from doing it, and he intended and desired to do it. There was nothing that he----
LankfordHe maintained that. On page 188 of your report, you make this comment: "that Steele tasked [his primary sub-source] after the 2016 elections to find corroboration for the election reporting and that the Primary Sub-source could find zero." He reported that to the FBI he could find zero. He reported that to the Washington field office when they met with him in May 2017. What I am trying to figure out is Steele is tasking his sub-source to go find corroboration after the election is even over. This was at least a month through this process and cutting off from the FBI. Who is tasking Steele to continue to go chase down more information?
HorowitzWe do not have evidence as to anybody specifically tasking Steele to go chase down evidence, but it is pretty clear from what we are laying out here that the FBI from day one was asking questions about the corroboration for the Steele reporting and not getting it. So it would not be surprising that Steele was still trying to see if anybody could find corroboration so he could demonstrate that there was support for his reporting when, in fact, what we had here----
LankfordIt was zero.
HorowitzThat was not what was happening.
LankfordIt was zero, and it was known immediately by FBI at that point that there was zero corroboration for this. In fact, the State Department personnel, even when they met with Steele, noted that he had his facts wrong, even what he was presenting at that point, and they knew it all immediately.
HorowitzThey referenced, I think it was, the purported Miami consulate, that there was no such Miami consulate.
[Hearing transcript, December 18, 2019, questioning by Sen. Lankford.]
Horowitz told the committee his office had opened an audit the week before, sampling counterintelligence and counterterrorism FISA applications to find out whether the same failures ran through the rest of the FBI’s surveillance work or stopped with Carter Page.