Strzok attacks Durham indictment against Sussmann and 'chilling effect' on FISAs

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Fired FBI special agent Peter Strzok attacked special counsel John Durham’s indictment against Michael Sussmann, claiming the false statements charge would stop sources from reaching out to the FBI and contending the scrutiny of the Trump-Russia investigation led to a reduction in Foreign Intelligence Surveillance Act orders.

The indictment against Sussmann, a lawyer who recently left the Perkins Coie law firm, centers on a September 2016 meeting between him and then-FBI general counsel James Baker in which Sussmann pushed allegations of a secret backchannel between Russia’s Alfa Bank and the Trump Organization.

While Durham says Sussmann told Baker he was not working for any client, the special counsel contends he was secretly doing the bidding of Clinton’s campaign and billing it to her, as well as working on behalf of technology executive Rodney Joffe.

Sussmann denies misleading the FBI and pleaded not guilty .

Strzok penned a post published by Lawfare in late October and joined the Brookings Institution’s Benjamin Wittes on a podcast last week talking about the allegations against Sussmann.

He claimed the Sussmann indictment could scare sources.

“They shade the truth. … Sometimes they feed you disinformation. … Sources, especially good ones, aren’t angels. … Bad people know about bad behavior,” Strzok said. He also claimed Sussmann was “not a counterintelligence professional, but a source.”

But Sussmann was not a random source off the street. He was a high-profile cybersecurity lawyer with connections to the Democratic Party and worked at the DOJ from the early 1990s to 2005 as a special assistant U.S. attorney at the DOJ’s criminal division, and in the DOJ’s computer crime section.

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Strzok noted Sussmann's lawyers contended in early October that “Mr. Sussmann is also entitled to additional particulars regarding the alleged omissions in the indictment, including regarding the legal duty, if any, that required him to disclose the allegedly omitted information the indictment suggests he should have disclosed.”

Strzok cited a portion of Durham’s indictment which said Sussmann had “concealed and failed to disclose” information to Baker. Strzok contended that was problematic.

But the criminal count against Sussmann is clear Durham believes Sussmann lied by commission, not just omission, saying he “did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation” to Baker.

DOJ Inspector General Michael Horowitz said  in his December 2019 report the FBI “concluded by early February 2017 that there were no such links” between Alfa Bank and the Trump Organization. The watchdog criticized DOJ and the FBI for 17 “significant errors and omissions  ” related to its surveillance of Trump campaign associate Carter Page and its reliance on British ex-spy Christopher Steele’s discredited dossier.

Strzok was fired after the discovery of anti-Trump texts with then-FBI lawyer Lisa Page. He played a key role in opening the Crossfire Hurricane investigation in 2016 and interviewed retired Lt. Gen. Michael Flynn in January 2017.

Strzok wrote, “at the time Sussmann’s indictment was returned, by coincidence I was taking a look at data from the Office of the Director of National Intelligence’s Annual Statistical Transparency Report and noticed a precipitous drop in the volume of the intelligence community’s use of complex investigative techniques,” including FISA.

“I believe these two issues are connected,” Strzok added.

He claimed Sussmann indictment is “more likely to cause greater damage to the FBI’s ability to recruit and maintain sources as those sources become increasingly fearful that incompleteness will be treated as a criminal false statement” and “in the worst case, it’s part of the previous administration’s effort to scare off investigators looking at anything related to Trump and counterintelligence.”

Strzok suggested this was part of a “chilling effect” sought by former Attorney General William Barr when appointing Durham to the task.

“I had a minor role in the events in question, insofar as I transferred the material Sussmann gave to Jim Baker. … to the personnel who ultimately supervised and looked into the allegations,” Strzok admitted. He said he heard “a briefing or two” about Alfa Bank “and heard sort of updates and kind of the final resolution.”

Strzok also conceded it was possible Durham might call him as a witness in his inquiry examining the conduct and origins of the Russia investigation.

To make his case on falling FISA numbers, Strzok pointed to recent ODNI reports which showed the number of FISA orders granted each year: 1,767 in 2013, 1,519 in 2014, 1,585 in 2015, 1,559 in 2016, 1,437 in 2017, 1,184 in 2018, and 907 in 2019. There were 524 in 2020, likely lower due to the coronavirus pandemic.

He wrote, “The numbers inthe 2020 report are damning,” as he pointed to figures from 2018 to 2020.

Strzok argued that “the trend is actually worse than that” and that the number of FISAs in 2020 was “at less than 30% of what they were in 2013, all in the context of a significant drop that began when Trump took office.”

Strzok did not mention the number of targets among the FISA orders, however. There were 1,144 targets in 2013, 1,562 in 2014, 1,695 in 2015, 1,687 in 2016, 1,337 in 2017, 1,833 in 2018, 1,059 in 2019, and 451 in 2020. This means that during the Trump presidency, two of the four years had higher FISA target numbers than 2013, with 2018 seeing the highest number of targets in the nearly decadelong dataset.

The Biden administration's spy community took a crack at explaining the fluctuations in its April report.

“The statistics provided in this report fluctuate from year to year for a wide variety of reasons. … In some instances, there may be no relationship between a decrease in the use of one authority and an increase in another,” ODNI stated. “At a high level, statistics may fluctuate due to changes in collection and operational priorities of the U.S. government, world events, technical capabilities, target behavior, the dynamics of the ever-changing telecommunications sector, and the use of technology to automate the delivery of marketing and other communications.”

Biden's ODNI added, “The impact of the COVID-19 pandemic likely influenced target behavior, which in turn may have impacted some of the numbers.”

Data compiled by the Electronic Privacy Information Center show there were 1,228 traditional FISA orders granted in 2002, 1,724 in 2003, 1,754 in 2004, 2,072 in 2005, 2,176 in 2006, 2,370 in 2007, 2,083 in 2008, 1,320 in 2009, 1,506 in 2010, 1,789 in 2011, and 1,788 in 2012, meaning six of the 11 years before 2013 saw higher numbers, with some significantly lower.

In his chat with Strzok, Wittes suggested the number of FISA orders might be declining as the U.S. gets further away from the Sept. 11, 2001, terror attacks or that it may stem from problems unearthed with the FISA process.

Strzok argued, “But the issue isn’t, if there’s a problem, to stop doing something because it is problematic. The answer is, if there’s a problem with something fix the problem and continue doing it, but do it in the right way.”

Wittes brought up the argument that the decline might be the result of a more rigorous FISA process, pointing to the potential that the court was being more stringent , and the FBI was being more careful.

“I don’t think that’s right,” Strzok said.

Strzok also used the opportunity to address the FISA surveillance against Carter Page, claiming, “If you take the Steele information out of the picture, I think there would’ve been enough that we would’ve gotten sufficient probable cause to get a FISA on Carter Page.”

Horowitz, the DOJ inspector general, said Steele’s discredited dossier played a “central and essential” role in the FBI's wiretap efforts. The DOJ watchdog also said Steele’s main source “contradicted the allegations of a ‘well-developed conspiracy’ in” Steele’s dossier.

At least some of the Page FISAs were subsequently ruled “invalid” by the DOJ. FBI Director Christopher Wray agreed there had been illegal surveillance .

This summer, Horowitz found “significant” and “widespread” problems with how the FBI followed one of its important rules, called the Woods Procedures, related to documenting the evidence it had for its cases.

Wittes suggested the drop could have to do with the fact that properly following Woods rules might take more time and energy than in the past.

“No, I don’t know if that’s right. … Most of the FBI’s FISAs are done completely and done well,” Strzok replied.

Wittes also said many critics of FISA would likely say that in the post-9/11 era the FBI was overusing FISA, so maybe the right number of FISA orders isn’t what it was in 2013 but is closer to what it was in 2019. But Strzok rejected this too, saying that “the threat was greater than the resources we could bring to bear.”

Wittes said critics would say Strzok has an ax to grind on accountability in the Russia investigation and that Durham might be scrutinizing him.

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“The IG looked repeatedly at not only my behavior but the behavior of all the folks that were involved in this and … they could find no documentary or testimonial evidence that anything was based on improper considerations,” Strzok insisted.

The DOJ's watchdog said the FBI's explanations were “unsatisfactory across the board” but was unable to determine whether it was “gross negligence” or “intentional misconduct.”

Horowitz found huge problems with how Crossfire Hurricane was conducted but concluded it was adequately predicated. Durham wrote at the time that his team did “not agree with some of the report’s conclusions as to predication and how the FBI case was opened.”

Strzok said this was “almost unprecedented.”

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