The Foreign Intelligence Surveillance Court (FISC) has stunned court-watchers by selecting David Kris -- a former Obama administration lawyer who has appeared on "The Rachel Maddow Show" and written extensively in support of the FBI's surveillance practices on the left-wing blog Lawfare -- to oversee the FBI's implementation of reforms in the wake of a damning Department of Justice inspector general report last year.
The development on Friday, first reported by independent journalist Mike Cernovich, has roiled Republicans who have demanded accountability at the FBI. House Intelligence Commitee ranking member Devin Nunes, R-Calif., told The Daily Caller that Kris' appointment was "shocking" and "inexplicable."
"It’s hard to imagine a worse person the FISC could have chosen outside [James] Comey, [Andy] McCabe, or [Adam] Schiff,” Nunes said. Speaking to Fox News contributor Sara Carter, Nunes added: “It’s a ridiculous choice. The FBI lied to the FISC, and to help make sure that doesn’t happen again, the FISC chose an FBI apologist who denied and defended those lies. The FISC is setting its own credibility on fire.”
On Fox News' "Sunday Morning Futures," Nunes reminded anchor Maria Bartiromo that Kris had panned the now-vindicated 2018 memo produced by Nunes' panel, which asserted a series of surveillance abuses by the FBI against former Trump aide Carter Page. DOJ Inspector General Michael Horowitz later substantiated Nunes' claims, noting that the FBI had made numerous materially false representations to the FISC.
"Of all the people in the swamp ... this is the guy that you come up with?" Nunes asked. "The guy that was accusing me of federal crimes? The guy that was defending the dirty cops at the FBI? ... The court must be trying to abolish itself. There is long-term damage."
President Trump then referenced Nunes' interview with Bartiromo on Twitter on Sunday afternoon, calling Kris "highly controversial" and slamming the FISC's decision.
"You can't make this up!" Trump wrote. "David Kris, a highly controversial former DOJ official, was just appointed by the FISA [Foreign Intelligence Surveillance Act] Court to oversee reforms to the FBI's surveillance procedures. Zero credibility. THE SWAMP!"
In a March 2018 article, Kris argued on Lawfare, a leftist blog run by Comey friend Benjamin Wittes, that Nunes' memo had "tried to deceive the American people in precisely the same way that it falsely accused the FBI of deceiving the FISA Court."
Additionally, Kris claimed that "had the FBI done in its FISA applications what Nunes did in his memo, heads would have rolled on Pennsylvania Avenue." He asserted, “It’s disturbing that Page met that legal standard and that there was probable cause to conclude he was a Russian agent."
"The Nunes memo was dishonest," Kris charged. "And if it is allowed to stand, we risk significant collateral damage to essential elements of our democracy."
Kris was a former assistant attorney general for national security who worked at the DOJ from 2009 to 2011, and served as an associate deputy attorney general under George W. Bush from 2000 to 2003. He later criticized Bush's justifications for warrantless wiretap surveillance.
But, as the political winds changed, Kris became more of a proponent for government surveillance in other contexts. He appeared on MSNBC's left-wing "The Rachel Maddow Show" in 2018 to offer a spirited defense of the FBI's FISA practices.
"FISA applications are typically quite long -- they're big enough that you don't want to drop one on your foot," Kris told Maddow. "They contain a lot of information and detail, because the statute is quite exacting in what it requires the government to establish to get the warrant granted."
Commenting on whether unredacting FISA materials posed a challenge to the FBI's investigation, Kris remarked that "a lot of water [was] already under the bridge thanks to the back-and-forth precipitated" by Nunes -- knocking the key House Republican for pushing to release some of the secretive documents.
Kris added: "These applications already substantially undermine the president's narrative and that of his proxies, and it seems to me very likely that if we get below the tip of the iceberg and into the submerged parts and more is revealed, it's going to get worse, not better. And it would potentially be dangerous to disclose additional information because some of this relates to ongoing investigations."
Nevertheless, FISC presiding Judge James E. Boasberg, in a Friday order, said that Kris would be an "amicus curiae to assist the Court in assessing the government's response" to its previous order demanding changes at the FBI. Boasberg, who was appointed to the federal bench by President Obama in 2011, was selected to head the FISC at the start of the year by Supreme Court Chief Justice John Roberts after former FISC presiding Judge Rosemary Collyer stepped down in December due to health issues.
In December, Collyer's FISC ordered the FBI to re-verify all previous warrant applications involving the FBI attorney who falsified evidence against Page. Fox News learned, however, that the court did not order the FBI to double-check warrant applications involving other officials who made key omissions and errors in warrant applications as the bureau sought to surveil Page.
"It’s hard to imagine a worse person the FISC could have chosen outside [James] Comey, [Andy] McCabe, or [Adam] Schiff."
The FISC's failure to request a comprehensive evaluation of previous submissions frustrated Republicans who have questioned whether enough is being done to deter future misconduct by the FBI. In the past, the FISC has gone so far as to prohibit some FBI agents from appearing before the court after finding impropriety.
Also last Friday, the FBI filed a new response to the FISC's request for more information. In the lengthy filing, Wray outlined some of the new steps the bureau planned to take in the future.
“The FBI has the utmost respect for this court, and deeply regrets the errors and omissions identified by the [Justice Department inspector general],” Wray wrote. “FISA is an indispensable tool in national security investigations, and in recognition of our duty of candor to the court and our responsibilities to the American people, the FBI is committed to working with the court and DOJ to ensure the accuracy and completeness of the FISA process."
Wray told the FISC that the FBI would begin teaching a “case study” using Horowitz's findings, and would ensure that the FISC was “apprised of all information in the FBI’s holdings at the time of an application that would be relevant to a determination of probable cause.”
“Critically, the FBI must also balance the implementation of these actions with its ongoing responsibility to protect the American people and uphold the Constitution of the United States, during a time of ever-present threats to our national security,” Wray went on. “The leadership of the FBI has devoted—and will continue to devote—a substantial amount of time, thought and effort to striking this balance, while paying scrupulous attention to its duty of candor to the court and maintaining the trust of the American people.”
The FBI's response to the FISC on Friday was signed by FBI General Counsel Dana Boente -- who also signed onto the discredited Page FISA applications.
Horowitz found specific evidence of oversights and errors by several top FBI employees as they sought to obtain a warrant to surveil Page under the FISA statute. For example, an unidentified FBI supervisory special agent (SSA) mentioned in the IG report was responsible for ensuring that the bureau's "Woods Procedures" were followed in the Page warrant application.
According to the procedures, factual assertions need to be independently verified, and information contradicting those assertions must be presented to the court. But Horowitz found several instances in which the procedures were not followed.
Horowitz's report leaves little doubt that the unnamed SSA is Joe Pientka -- a current bureau employee. Pientka briefly appeared on the FBI's website as an "Assistant Special Agent in Charge" of the San Francisco field office late last year, according to the Internet archive Wayback Machine -- although Pientka no longer appears on any FBI website. Twitter user Techno Fog first flagged the Wayback Machine's archive of the page.
The FBI did not immediately respond to Fox News' request for clarification on Pientka's status.
The inspector general also noted than an unnamed "Case Agent 1," was "primarily responsible" for some of the "most significant" errors and omissions in the FISA warrant applications and renewals submitted to the FISC to extend the monitoring of Page.
Nevertheless, last December, Judge Collyer ordered the FBI only to identify "all other matters currently or previously before this Court that involved the participation of the FBI OGC [Office of General Counsel] attorney" mentioned in Horowitz's report.
Additionally, Collyer ordered the FBI to "describe any steps taken or to be taken by the Department of Justice or FBI to verify that the United States’ submissions in those matters completely and fully described the material facts and circumstances" and to advise whether the attorney's conduct "has been referred to the appropriate bar association(s) for investigation or possible disciplinary action."
Those were apparent references to ex-FBI attorney Kevin Clinesmith, who Horowitz found to have doctored an email from the CIA. The FBI reached out to the CIA and other intelligence agencies for information on Page; the CIA responded in an email by telling the FBI that Page had contacts with Russians from 2008 to 2013, but that Page had reported them to the CIA and was serving as a CIA operational contact and informant on Russian business and intelligence interests.
Clinesmith then allegedly doctored the CIA's email about Page to make it seem as though the agency had said only that Page was not an active source. And, the FBI included Page's contacts with Russians in the warrant application as evidence he was a foreign "agent," without disclosing to the secret surveillance court that Page was voluntarily working with the CIA concerning those foreign contacts.
Collyer has separately sought updates from the FBI concerning details in the IG report but has ordered a re-review of any other FISA applications that were previously reviewed.
However, details in the IG report reveal that the pervasiveness of apparent misconduct in the FISA process extended far beyond Clinesmith.
The unnamed "SSA 1" in the IG report was given a supervisory role on the Russia investigation team, overseeing agents and reporting directly to since-fired anti-Trump FBI agent Peter Strzok. The special agent created the electronic sub-file to which the reports by ex-MI6 agent Christopher Steele would be uploaded. According to Horowitz, these reports were used to support the probable cause in the Page FISA applications.
Then, on Sept. 23, 2016, Yahoo News published an article describing U.S. government efforts to determine whether Page was in communication with Kremlin officials. The article seemed to closely track information from one of Steele’s reports. As a result, one FBI case agent who reported to SSA 1 believed Steele was the source, according to Horowitz.
SSA 1 apparently thought the same, as his notes from a meeting held on Sept. 30, 2016, said: “Control issues -- reports acknowledged in Yahoo News.” When questioned by Horowitz's office, the agent explained he was concerned -- but not sure -- that Steele was the Yahoo News source.
The drafts of the Page FISA application, however, tell a different story. Horowitz found that until Oct. 14, 2016, drafts state that Steele was responsible for the leak that led to the Yahoo News article. One draft specifically states that Steele “was acting on his/her own volition and has since been admonished by the FBI.”
These assertions, which could have pointed to political motivations for Steele to make his information public weeks before the 2016 presidential election, were changed to the following: Steele’s “business associate or the law firm that hired the business associate likely provided this information to the press.”
Horowitz found no facts to support this assessment.
On Oct. 11, 2016, Steele met with then-State Department official Jonathan Winer and Deputy Assistant Secretary Kathleen Kavalec. Steele informed Kavalec that the overseers of a Russian cyber-hacking operation targeting the 2016 U.S. elections were paying the culprits from “the Russian Consulate in Miami.” Kavalec later met with an FBI liaison and explained to them that Russia did not have a consulate in Miami. SSA 1 was informed of Steele’s incorrect claim on Nov. 18, 2016, but the FISA court was never provided this information, according to the IG report.
Additionally, SSA 1 was aware of Page’s denials to an FBI confidential human source (CHS) that he knew Russian officials Igor Sechin and Igor Divyekin – officials that Steele alleged Page had met in Moscow in July 2016. In fact, Horowitz found that SSA 1 “knew as of October 17 that Page denied ever knowing Divyekin."
"This inconsistency was also not noted during the Woods Procedures on the subsequent FISA renewal applications, and none of the three later FISA renewal applications included Page’s denials to the CHS," Horowitz wrote, referring to the FBI's practice of reverifying facts in its FISA application before seeking renewals.
SSA 1 also was responsible for “confirming that the Woods File was complete and for double-checking the factual accuracy review to confirm that the file contained appropriate documentation for each of the factual assertions in the FISA application," according to Horowitz.
But Horowitz found numerous instances “in which factual assertions relied upon in the first FISA application targeting Carter Page were inaccurate, incomplete or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the application was filed."
In particular, the FBI misled the FISC by asserting that Steele’s prior reporting "has been corroborated and used in criminal proceedings.” Horowitz's review found there was no documentation to support this statement; SSA 1 told Horowitz they “speculated.”
SSA 1 was also aware, according to Horowitz, that Steele had relayed his information to officials at the State Department, and he had documentation showing Steele had told the team he provided the reports to his contacts at the State Department. Despite this, the FISC was informed that Steele told the FBI he “only provided this information to the business associate and the FBI.”
Republican calls for more accountability may not go unanswered for long. Connecticut U.S. Attorney John Durham announced this month that he did not "agree" with the IG's assessment that the FBI's probes were properly predicted, highlighting Durham's broader criminal mandate and scope of review.
Durham is focusing on foreign actors as well as the CIA, while Horowitz concentrated his attention on the Justice Department and FBI.
"Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened," Durham said in his statement, adding that his "investigation is not limited to developing information from within component parts of the Justice Department" and "has included developing information from other persons and entities, both in the U.S. and outside of the U.S."