Why The FBI’s Last-Minute Change To A FISA Application Is Worse Than Using Unverified Steele Dossier
Special Counsel John Durham’s deft questioning of FBI agent Brian Auten during the prosecution of Steele-dossier primary sub-source Igor Danchenko confirmed the Crossfire Hurricane team obtained permission to surveil U.S. citizen Carter Page without first verifying the dossier’s claims. While scandalous, the Justice Department’s deceptive framing of Christopher Steele’s source network as connected to his prior work with British intelligence is worse because the higher-ups who authorized the inclusion of this detail in the final revision of the application knew a FISA warrant would likely be denied without the misrepresentation.
The special counsel’s criminal trial against Danchenko on five counts of lying to the FBI began earlier this week in a Virginia federal court, with prosecutor Michael Keilty framing for the jury the significance of Danchenko’s alleged lies during the government’s opening statement.
“The evidence in this trial will show that the Steele dossier would cause the FBI to engage in troubling conduct that would ultimately result in the extended surveillance of the United States citizen,” Keilty began, a reference to the FBI’s FISA-approved surveillance of Page. “And the defendant’s lies played a role in that surveillance,” the prosecution continued, arguing that Danchenko lied about his sources. Specifically, the government explained, the evidence would show Danchenko lied about Sergei Millian being one source and then later falsely denied that Charles Dolan provided other information Danchenko had fed to Steele.
The Uncorroborated Dossier
John Durham then questioned the government’s first witness, Brian Auten. Through Auten, a supervisory intelligence analyst for the FBI who led the analysts working on Crossfire Hurricane, the special counsel elicited testimony for the jury of the origins of the investigation into the Trump campaign and the D.C. headquarters’ receipt of the Steele dossier on Sept. 19, 2016.
From there, Auten walked the jury through a trip to Europe, in which agents offered Steele up to $1 million for information to confirm the dossier allegations, and Steele’s inability to provide evidence to confirm the claims of Trump-Russia collusion. Auten further explained that while Steele refused to identify his sources, by December of 2016, through research, Auten had determined that Danchenko served as Steele’s primary sub-source.
After identifying Danchenko as Steele’s primary sub-source, Auten explained that the FBI sought Danchenko’s cooperation, making him a confidential human source and offering him immunity. Auten further testified about Danchenko’s work with the Crossfire Hurricane team and what Danchenko told them — and didn’t tell them, including Danchenko’s claims, multiple times, that he had received a telephone call from someone he believed to be Millian providing intel about the Trump campaign’s Russia connections. Auten also told the jury that Danchenko had denied talking with Dolan about any of the details contained in the dossier.
Durham further elicited from Auten testimony that the four FISA applications used to obtain a surveillance order to spy on Page included information from the Steele dossier, including details provided by Danchenko that Danchenko had attributed to Millian. And in questioning Auten about the FISA applications and their reliance on the Steele dossier, Durham pounded the point that the FBI had used the Steele dossier to obtain a court order to surveil a United States citizen without corroborating any of the substantive details contained in the supposed intelligence report.
Between Sept. 19, 2016, when the FBI headquarters first received the Steele dossier, and Oct. 21, 2016, when the government submitted the first FISA application, “were you able to confirm or corroborate in any of the FBI system the very serious allegations that were contained in dossier reports,” Durham asked Auten. “No,” Auten replied.
“And what can you tell the jurors about whether or not any of the intelligence agencies that the FBI contacted for corroborative information produced any corroborative information” about the dossier’s allegations? Durham inquired.
“We did receive information back from a number of different agencies,” Auten explained, but nothing that corroborated the specific allegations in the dossier.
The questions continued: “Did Christopher Steele provide any corroborative information for the information that was contained in his reports, in the dossier reports?”
“Not for the allegations, no,” Auten confirmed.
“At any time when you were overseas meeting with Steele in early October, did he provide anything?” Durham pushed.
Auten: “He did not.”
What about “at any time after the October meeting with Mr. Steele and after the million dollars-plus had been offered as an incentive to provide corroborative information for what was in those reports, did he provide any corroborative information?” Durham inquired.
“No,” Auten testified.
And yet, portions of the Steele dossier “played a significant part” in the Carter Page FISA applications. The special counsel reiterated that point regularly during the first few days of the trial while stressing — in question after question — that the FBI had failed to corroborate the allegations.
With Danchenko being the main source for Steele’s dossier, that testimony strengthened the government’s case that Danchenko’s alleged lies materially affected the FBI’s investigation. Simultaneously, the special counsel’s line of questioning served to castigate Auten and the other members of the Crossfire Hurricane team for using uncorroborated material to surveil a United States citizen.
Misleading M16 Info
The FBI’s use of the uncorroborated Steele dossier was not the FBI’s worst offense, however. Worse still was the Crossfire Hurricane team’s last-minute amendment to the FISA application that misleadingly framed Steele’s source network as one established during his time as an MI6 agent, when, in fact, neither Danchenko nor any of Steele’s other dossier sources had been sources during his time with British intelligence.
While Steele would later confirm for the inspector general that his source network did not involve sources from his time with MI6, but “was developed entirely in the period after he retired from government service,” from Auten’s detailed trial testimony, we now know that the Crossfire Hurricane team either knew Steele’s source network was not connected to British intelligence or knew that it could not, in good faith, make that representation to the FISA court.
For two days, Durham elicited testimony from Auten of the FBI’s attempts to ascertain Steele’s source network, including during a trip to Europe in early October, but Steele refused to identify his sources. Auten’s testimony in this regard proves significant when considered together with details previously revealed in the Office of Inspector General’s report on FISA abuse.
In discussing the process the FBI undertook to obtain the first FISA warrant on Page, the OIG explained that the day before the FISA court granted the surveillance order, the government submitted a “read copy” of the FISA application to the FISA court’s legal adviser for a preliminary assessment of any issues. The FISA court’s legal adviser asked the attorney working with the FBI on the application “how it was that Steele had a network of subsources?”
The government lawyer “provided additional information to him regarding Steele’s past employment history,” the OIG report explained; that response implied Steele’s source network came from his time with MI6. Significantly, the FISA court’s legal adviser then indicated the additional detail of Steele’s prior work with British intelligence should be included in the official FISA application to the court.
“That the legal advisor not only raised the question about Steele’s access to a network of sources, but then insisted that the FISA application be updated to include information concerning Steele’s prior government position, shows the FISA court placed great significance on Steele’s previous British intelligence work for purposes of assessing the reliability of his source network.” And with that misleading information added, the next day, Oct. 21, 2016, the FISA court issued the first of four orders authorizing the surveillance of Page’s phone and email accounts.
Given the importance the legal adviser placed on understanding Steele’s source network, it seems unlikely the FISA court would have authorized the surveillance of Page had the FBI either acknowledged that Steele’s source network came from his private work with Orbis or conceded that Steele had refused to reveal his sources. It was this final deception, then, and not merely the FBI’s reliance on the uncorroborated Steele dossier, that led to the illegal surveillance of Page. And, here, those involved in adding the last-minute, credibility-boosting footnote reference to Steele’s MI6 work knew full well that misrepresentation would score the bureau a surveillance warrant, making it an even worse transgression.
Of course, we’ve yet to see the FBI agents responsible for this farce face justice, and as edifying as it is to hear Durham eviscerate the agents involved, that is not enough to ensure this travesty never repeats itself — because it already is.
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