Surveillance court judge bars some DOJ and FBI officials from warrant process
Washington — A federal judge on the government's secretive surveillance court said Justice Department and FBI personnel who are under scrutiny for their conduct in a case involving a former Trump campaign aide are barred from participating in the surveillance warrant application process.
U.S. District Judge James Boasberg, the presiding judge on the Foreign Intelligence Surveillance Court (FISC), issued an order Wednesday setting out an additional framework for the Justice Department and FBI to follow in future FISA proceedings. The order specifies that "no DOJ or FBI personnel under disciplinary or criminal review relating to their work on FISA applications shall participate in drafting, verifying, verifying, reviewing or submitting such applications to the court."
Boasberg's order requires "any finding of misconduct relating to the handling of FISA applications to be swiftly reported to the surveillance court." The court also ordered the Justice Department and FBI to include in applications representation from agency lawyers attesting to the information they contain, a further indication of mistrust in the Justice Department and FBI.
The FBI and Justice Department have come under scrutiny about the secretive surveillance process after Justice Department Inspector General Michael Horowitz determined last year that each of the four applications to the FISC to wiretap Carter Page, the former Trump aide, contained 17 "significant inaccuracies and omissions."
"There is thus little doubt that the government breached its duty of candor to the court with respect to those applications," Boasberg wrote in his opinion. "The frequency and seriousness of these errors in a case that, given its sensitive nature, had an unusually high level of review at both DOJ and the Federal Bureau of Investigation have called into question the reliability of the information proffered in other FBI applications."
Federal law enforcement obtained a warrant to surveil Page in 2016 over suspicions that he was a Russian agent, and the warrant was renewed three times. The FISC grants secret warrants to the FBI when the bureau can show probable cause that the target of their surveillance is an agent of a foreign power.
The inspector general also determined that an FBI attorney, identified as Kevin Clinesmith, altered an email to misstate Page's relationship with the CIA in the fourth renewal application. In the original email, a CIA official acknowledged the agency previously had a relationship with Page and last was in contact with him in 2011. Clinesmith allegedly changed the email to make it appear as if the CIA official said no such relationship existed.
CBS News reported in December that Clinesmith is the subject of a criminal investigation.
The Justice Department and FBI have agreed to undertake remedial measures to address the deficiencies identified by the inspector general and improve the accuracy of surveillance applications, but the court said the law enforcement agencies "must fully understand and embrace the heightened duties of probity and transparency."
In the wake of the inspector general's report, the surveillance court issued an extraordinary public rebuke of the FBI over its handling of the wiretap applications.
"The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable," Judge Rosemary Collyer wrote in an order in December.
Page had denied any wrongdoing and was not charged as part of the Justice Department's investigation into possible ties between Russia and the Trump campaign.
U.S. Attorney John Durham is also investigating the origins of the FBI's investigation into Russian meddling in the 2016 election, with a recent focus on January to May 2017, a period in which the "paper trail is strongest," sources familiar with the probe told CBS News.