Page v. Comey
| Decision Date | 01 September 2022 |
| Docket Number | 20-cv-3460 (DLF) |
| Parties | CARTER PAGE, Plaintiff, v. JAMES B. COMEY et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
As part of its investigation into the alleged connection between the Trump 2016 presidential campaign and the Russian government the Federal Bureau of Investigation obtained warrants under the Foreign Intelligence Surveillance Act (FISA) to electronically surveil Carter Page, an informal advisor to the campaign. Page alleges that the surveillance was unlawful because the warrant applications were false and misleading. He brings statutory and constitutional claims against the United States, the Department of Justice, the FBI, and individuals who worked at the FBI. Before the Court are the individual defendants' Motions to Dismiss, Dkts. 80-87 and the government defendants' Motion to Dismiss, Dkt. 88. For the reasons that follow, the Court will grant each motion.
On July 31, 2016, the FBI opened a counterintelligence investigation named “Operation Crossfire Hurricane” to determine whether individuals associated with the Trump presidential campaign were involved in coordinated activities with the Russian government. Second Am. Compl. (SAC) ¶ 5, Dkt. 73.[1] Plaintiff Carter Page, a “volunteer member of an informal foreign policy advisory committee” to the Trump campaign, alleges that he was targeted in this investigation. Id. ¶¶ 5, 21. According to Page, the FBI obtained four successive FISA warrants to electronically surveil him, despite there being no probable cause to suspect that he was a Russian agent. Id. ¶ 3; 50 U.S.C. §§ 1804(a)(3)(A), 1805(a)(2)(A).
Allegedly, defendant Stephen Somma, then an FBI counterintelligence investigator, was the first to propose the surveillance of Page. SAC ¶ 202. After asking about the possibility of seeking FISA warrants, the FBI Office of General Counsel told Somma on August 15, 2016, that he needed more evidence to establish probable cause. Id. ¶ 203. Meanwhile, on August 17, the CIA told the Crossfire Hurricane team that Page had been a CIA “operational contact” from 2008 to 2013 and had helped the agency combat Russian and other foreign countries' intelligence-related activities. Id. ¶ 11. And on September 7, the CIA allegedly told defendants James Comey, then-director of the FBI, and Peter Strzok, then-Deputy Assistant Director of Counterintelligence, that 2016 presidential candidate Hillary Clinton had approved a plan to connect Trump and Russian hackers in order to distract the public from her use of a private email server. Id. ¶ 12.
Page further alleges that soon after, on September 19, the FBI received information about a connection between the Trump campaign and Russia. Id. ¶ 14. Christopher Steele, a confidential source for the FBI, provided two reports alleging that Page engaged in “improper or unlawful communications or activities” with “two sanctioned Russians with close ties to Russian President Vladimir Putin.” Id. ¶¶ 14, 74. Steele was paid by the Democratic National Committee and/or the Clinton campaign to perform political opposition research. Id. ¶ 9. The FBI used his reports as a basis to obtain a FISA warrant to surveil Page. Id. ¶ 14.
According to Page, Steele's reports were “essentially the exclusive source of information supporting probable cause for the FISA warrant applications.” Id. ¶ 15. FBI officials allegedly chose to proceed with and rely on Steele's information without adequately investigating his reliability and motives. See, e.g., id. ¶¶ 15, 91, 157, 170. And they falsely elevated Steele's credibility in the warrant applications and omitted facts that cast doubt on his claims. See, e.g., id. ¶¶ 17, 111. At the same time, they never disclosed Page's previous work as an operational contact for the CIA in any of the four warrant applications. Id. ¶¶ 17-18.
The DOJ Office of Inspector General (OIG) later investigated and revealed the FBI's “material failures” during this process. Id. ¶ 42. The Foreign Intelligence Surveillance Court (FISC) has indicated that Page's surveillance was “unlawful.” Id. ¶ 50. Indeed, the government has conceded that it lacked probable cause to surveil Page under the last two warrants and also agreed to sequester information obtained from all four of the warrants. Id. ¶ 48. Below, the Court will describe Page's allegations about each warrant application, see infra Part I.A.2-5, and about each individual defendant's actions, see infra Part III.A.1.ii.c.
On September 23, 2016, soon after the FBI received Steele's reports, a Yahoo! News article repeated the allegations that Page met with two sanctioned Russians, according to a “well-placed Western Intelligence source.” SAC ¶ 76. Although Steele's confidential source agreement with the FBI prohibited him from talking to the media about the information he provided to the FBI, allegedly he was the source for the article. Id. A draft application for the first FISA warrant acknowledged that he was the source for the article, though the draft was later changed to say that Steele's business associate or client gave the information. Id. ¶ 80. The final version of the warrant application cited the Yahoo article as corroboration for Steele's allegations, even though he was the source for both. Id. ¶¶ 78, 80.
Two days after publication of the Yahoo article, Page sent a letter to Comey denying that he had contact with the sanctioned Russians and explaining his long history of interactions with the CIA and the FBI. Id. ¶ 81. Comey gave the letter to the Crossfire Hurricane team and its supervisor, Strzok. Id. Around the same time, Page told Stefan Halper, another FBI confidential source, that he was never involved with Russia on behalf of the Trump campaign. Id. ¶ 86. This was consistent with statements that other witnesses made during FBI interviews. Id. ¶¶ 85, 87. Allegedly, Page's denials were never disclosed by the FBI to DOJ attorneys. Id. ¶ 86. Meanwhile, even though a DOJ attorney asked Somma whether Page was ever a source for the CIA, Somma did not mention Page's years as a CIA operational contact. Id. ¶¶ 11, 72, 84, 205.
Page alleges that in early October, a DOJ attorney learned that Steele was performing political opposition research and thus grew concerned about his credibility. Id. ¶ 89. Strzok briefed Comey and defendant Andrew McCabe, then-Deputy Director of the FBI, about these concerns, but they “brushed [them] aside” and urged DOJ to move forward with the warrant application. Id. ¶ 91. Defendant Lisa Page, an FBI lawyer, told the DOJ attorney that Comey and McCabe had approved the decision to apply for the warrant; she also told McCabe that a “high-level push” might be necessary to get it approved. Id. After the DOJ attorney asked the FBI whether Steele had ties to any political campaign, a footnote was added to the application that indicated that Steele was hired to perform political opposition research. Id. ¶¶ 89-92. The footnote did not, however, reveal that Steele was paid with Democratic National Committee funds, a fact allegedly known to senior DOJ and FBI officials. Id. ¶¶ 93, 96.
The warrant application was submitted to the FISC on October 21, 2016. Id. ¶ 95. Defendant Joe Pientka III, an FBI supervisory special agent on the Crossfire Hurricane team, signed the authorization for its submission. Id. ¶ 198. Comey signed the warrant application. Id. ¶ 150. Based on Steele's reports, the application claimed that Page met with at least two Russian officials during a July 2016 trip to Russia. Id. ¶ 95. Allegedly, Pientka did not verify or correct the application's false statement that “Steele's reporting had been corroborated and used in criminal proceedings.” Id. ¶ 199. Nor did he confirm, as FBI policy required, that Steele's FBI handling agent had reviewed and approved the application's content. Id. In fact, Page alleges that the handling agent had not done so because Somma failed to seek his review. Id. ¶ 206. According to the complaint, the application failed to disclose (1) Steele's funding source, (2) Page's work as a CIA operational contact, or (3) a witness's exculpatory statement that no one in the Trump campaign coordinated with Russia. Id. ¶¶ 87, 95-96. Further, it did not contain a “cautionary warning to be vigilant against politically motivated false reports” regarding Russia. Id. ¶ 95.
On October 31, 2016, Mother Jones published a story about Steele's reports to the FBI. Id. ¶ 101. After Steele admitted that he was the source for the story, his FBI handling agent told him to stop collecting information for the FBI and that it was unlikely that the agency would continue to work with him. Id. ¶¶ 101-103. On November 17, the FBI closed Steele as a source “for cause.” Id. ¶ 104. FBI officials including Strzok and defendant Brian Auten, an FBI supervisory intelligence analyst on the Crossfire Hurricane team, investigated Steele's credibility during trips to London in November and December; several former colleagues reported on Steele's poor judgment and habit of pursuing politically risky people. Id. ¶¶ 105, 174-175, 180. Allegedly, Lisa Page, Strzok, Pientka, and other FBI personnel then learned more about Steele's anti-Trump bias from DOJ official Bruce Ohr, who told them that Steele's reports were being relayed to the Clinton campaign. Id. ¶ 106.
Yet the FBI continued to receive information from Steele through various intermediaries. Id. ¶¶ 107-108. And his reliability continued to be called into question. Page further alleges that after Pientka and Somma received information from the Deputy Assistant Secretary of State...
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