Former Trump campaign aide Carter Page on Friday has filed a $75 million lawsuit against the Federal Bureau of Investigation (FBI) and former high-ranking officials, including former FBI Director James Comey, and Andrew McCabe. The complaint includes eight claims that range from violations to the Foreign Intelligence Surveillance Act (FISA), Federal Tort Claims Act, a Bivens claim, and Privacy Act. It is very well written, but it will be challenging given the discretionary authority of justice officials in some of these actions. For full disclosure, I previously discussed Page’s case with both Page and his counsel (particularly after a column on his case). I have been a critic of his targeting for years and have spoken with Page on the investigation. I view Page as a victim of an abusive federal investigation and ideally he should be afforded relief for his treatment. Federal case law however presents barriers for people in his position. If he were to prevail, it could create important precedent protecting citizens and civil liberties for the future.
The defendants are the following:
JOE PIENTKA III
BRIAN J. AUTEN
The most promising could be Clinesmith who has already admitted to committing a criminal act in submitting false information to the FISA court. That creates a different element than many cases where citizens challenge abuse surveillance.
Here are the counts:
FIRST CAUSE OF ACTION FOREIGN INTELLIGENCE SURVEILLANCE ACT (OCTOBER 21, 2016 FISA WARRANT – ORIGINAL) (Against All Individual Defendants)
SECOND CAUSE OF ACTION FOREIGN INTELLIGENCE SURVEILLANCE ACT (JANUARY 12th, 2017 FISA WARRANT – FIRST RENEWAL) (Against All Individual Defendants)
THIRD CAUSE OF ACTION FOREIGN INTELLIGENCE SURVEILLANCE ACT (APRIL 7th, 2017 FISA WARRANT – SECOND RENEWAL) (Against All Individual Defendants)
FOURTH CAUSE OF ACTION FOREIGN INTELLIGENCE SURVEILLANCE ACT (JUNE 29th, 2017 FISA WARRANT – THIRD RENEWAL) (Against All Individual Defendants)
FIFTH CAUSE OF ACTION FEDERAL TORT CLAIMS ACT (Against Defendant United States of America)
SIXTH CAUSE OF ACTION BIVENS CLAIM (Against All Individual Defendants)
SEVENTH CAUSE OF ACTION PRIVACY ACT (Failure to Amend) (Against Defendant Department of Justice)
EIGHTH CAUSE OF ACTION PRIVACY ACT (Unlawful Disclosures) (Against Defendants Department of Justice and Federal Bureau of Investigation)
The litigation over “misleading” affidavits or surveillance applications is very difficult in the federal courts. However, Page is alleging false representations as well as intentional leaks to the media. For example, Lisa Page is alleged to have “facilitated the leaks of information about the FBI’s FISA warrants regarding Dr. Page.” Such allegations must be treated as true for the purposes of a motion to dismiss. The question is whether, if proven true, there would be a claim against Lisa Page. Moreover, by including figures like Page, the team can pursue their knowledge under oath. Despite her controversial actions, Lisa Page was hired by NBC/MSNBC as a legal analyst. Indeed, the complaint also includes CNN legal analyst Andrew McCabe.
Somma is also an interesting addition since, while Clinesmith was prosecuted, Somma is also alleged to have failed to reveal Carter Page’s work with American intelligence. The complaint alleges:
167. Somma also received information from the CIA in August 2016 that Page had a longstanding relationship with that agency. He did not fully and accurately divulge that information to others at the FBI.
168. When Somma was explicitly asked in late September 2016 by a DOJ attorney assisting on the FISA application about Page’s prior relationship with the CIA, Somma did not accurately describe the nature and extent of the information the FBI received from the CIA. Somma Case 1:20-cv-03460 Document 1 Filed 11/27/20 Page 37 of 59 38 advised the attorney that Dr. Page did meet with a U.S. government agency, but that the interactions took place while Dr. Page was in Moscow (which was between 2004 and 2007) and were “outside scope.” Based upon this response, the attorney did not include information about Dr. Page’s prior interactions with the CIA in the application for the First FISA Warrant.
169. In seeking the First FISA Warrant, Somma mischaracterized the extent to which the FBI had previously relied on CHS Steele’s prior reporting. This resulted from his failure to seek review and approval from Steele’s handling agent, as the Woods Procedures required.
170. Somma also sought to hide from DOJ attorneys the political bias that made Steele’s reports about Dr. Page suspect. Stuart Evans asked whether Steele “is affiliated with either campaign and/or has contributed to either campaign.” On October 7, 2016, the DOJ Unit Chief this question was emailed to the Crossfire Hurricane team. On October 10, 2016, Somma responded but addressed only the second part of the question, stating that Steele was most likely a foreign national and therefore unable to contribute to either campaign. Because he did not fully address the question, the Unit Chief asked him again, on October 11, 2016, whether Steele was affiliated with and/or had contributed to either presidential campaign. Again, Somma answered only the second part of the question, confirming that Steele had not contributed to any campaign and was not a U.S. person. Evans was frustrated and annoyed by this answer and asked the question a third time. At that point, the FBI finally responded that they assumed Steele had been paid to develop political opposition research.
Again, such allegations are difficult to lay an actionable foundation, but the key will be the motion of dismiss and whether Page can get to discovery. Discovery itself will be challenging due to privilege assertions but it could expose additional information as well as statements under oath in deposition. Moreover, much information that would normally be held within the Justice Department has already been made public due to the prior investigations. The Complaint does an able job in laying out the existing record.
As I have previously written, the media gleefully detailed leaks and allegations portraying Page as a Russian agent. There has been little comparative coverage on his abusive treatment.
Throughout Operation Crossfire Hurricane, evidence continued to flow into the FBI that Christopher Steele, the former British spy who wrote the infamous dossier, was unreliable and working against the election of Trump. Not only was he known to be trying to get this false information to the press, but evidence mounted that he misrepresented sources and stated false information. While it took long, someone at the Justice Department finally decided to act on the FISA matter regarding Page. The official in charge of FISA applications, Kevin Clinesmith, was told to ask the CIA again about whether Page had been working for the agency. He was again told that Page in fact was, yet Clinesmith allegedly changed the CIA response to describe Page as not working for it. He is now being criminally referred by Horowitz for falsifying that information.
Investigators also found an array of messages against Trump on the social media accounts of Clinesmith, including one declaring “vive le resistance” after Trump won. Meanwhile, throughout this period, the FBI was leaking aplenty but no one leaked the Page was actually a CIA asset. Instead, he was left to twist slowly in the wind. Media reports all but convicted Page of being a Russian spy. Evan Hurst wrote about him last year asking, “Why the hell are Republicans dying on this hill to defend Carter Page,” whom Hurst described, in all caps, as “a literal actual Russian intelligence asset.”
Natasha Bertand later wondered why anyone would question the case against Page. After all, she wrote, Senator Mark Warner, who is ranking member of the Senate Intelligence Committee, had warned reporters to “be careful what you wish for” and one of his aides told her that is is “simply impossible to review the documents” on Page and conclude anything other than that the FBI “had ample reason” to investigate him. Her article was published long after the FBI had been told that Page was working with the CIA, but many other stories ran with similar comments from senators suggesting that anyone defending Page would be ridiculed after the release of some damning evidence. Mueller and Horowitz have now confirmed that there was never such evidence showing Page was a Russian asset. Indeed, the evidence showed he was an American asset.
Injuries in our constitutional system are supposed to have forms of relief, particularly when we are victimized by our own government. Thus, while this is an uphill climb, I hope Page makes it not just for himself but the rest of us.
Here is the complaint: Carter Page Complaint