Over last weekend, attorneys for Carter Page filed responses to motions to dismiss filed by the FBI and eight agents involved in the Crossfire Hurricane investigation that led to the government illegally obtaining four surveillance warrants to spy on Page.
In November 2020, Page, who had briefly served as a volunteer advisor to the Trump campaign, sued the defendants in a D.C. federal court alleging violations of the Fourth Amendment, the Patriot Act, and the Privacy Act. In response, the government and the individual defendants argued Page’s claims were time-barred or that Page had no legal grounds on which to sue. Page’s responses counter those arguments while providing five key take-aways.
1. The Swamp Is So Swampy
With Spygate developments few and far between, it is easy to forget the breadth and depth of the scandal. The briefs docketed on Saturday in Page’s lawsuit against the FBI and the agents involved in obtaining the four Foreign Intelligence Surveillance Act (FISA) surveillance warrants serve as an important refresher of what our government did to an innocent man in the hopes of “getting Trump.” As Page’s brief against the individual defendants noted in its opening, this case is extraordinary because they “were not mere field agents bending the rules to pursue criminals, but rather the highest level FBI executives.”
Even the case name, Page v. Comey, confirms the truth of that assertion, with former FBI Director James Comey named as one of the eight defendants. Page’s brief details Comey’s alleged involvement in the Department of Justice obtaining four FISA surveillance orders against the Naval Academy graduate, stressing that Comey was not merely a “supervisory” who signed the FISA applications, but was personally involved.
Establishing Comey and the other agents’ personal involvement proved a key feature of the briefs, because, to avoid dismissal of the complaint, Page needed to show the allegations of the complaint could reasonably be supported by a finding that the individual defendants did more than merely supervise employees who violated Page’s Fourth Amendment rights and rights under FISA.
The 70-page omnibus brief addressing the claims against the individual defendants detailed the personal involvement of each. For instance, for the former FBI director, the brief stressed that “on or about August 17, 2016, Comey received information from the CIA establishing that Dr. Page was an ‘operation contact’ for the CIA during the period of 2008-2013.”
Comey also knew from a September 7, 2016, Central Intelligence Agency (CIA) communique that Hillary Clinton had approved “a plan concerning U.S. Presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private mail server,” according to the court filing. Comey nonetheless approved the use of the fabricated Christopher Steele dossier to obtain the FISA surveillance orders, and eventually signed three of the four FISA surveillance applications.
Next named in Page’s lawsuit was Andrew McCabe, a former deputy director of the FBI. McCabe was also personally involved in obtaining the illegal FISA surveillance order, according to Page’s most recent court filing.
Among other things, McCabe signed the affidavit the FBI submitted in support of the final FISA application. McCabe’s involvement went further, Page’s attorneys argued, pointing out that he hosted an August 15, 2016 meeting with co-defendants Peter Strzok and Lisa Page discussing “an insurance policy” to prevent a Donald Trump election, and he had approved the FISA applications even though he knew they omitted Carter Page’s past assistance to the CIA.
The brief next discussed Kevin Clinesmith’s involvement in the FISA abuse. Clinesmith, who served as an assistant general counsel in the FBI’s Office of General Counsel, falsely told the FBI that Page was never a source. Then, when asked for written confirmation of that representation, Clinesmith altered the text of the email he had received from the CIA liaison, making the email read that Page was “not a ‘source.’”
Clinesmith then forwarded the altered email to the FBI. Clinesmith later pleaded guilty to making a false statement related to this conduct.
Strzok and Lisa Page’s involvement in the FISA surveillance scheme received attention next. Strzok, who served at the time as the FBI deputy assistant director for counterintelligence, also knew of the CIA’s warning that Clinton had approved a plan to claim Trump had colluded with Russia to “distract the public” from her misuse of a private server. Strzok also stated an intention to “stop” Trump from becoming president and discussed “an insurance policy” to prevent a Trump election.
Lisa Page’s personal involvement mirrored that of Strzok’s, but in addition she attended a briefing with McCabe, at which “Bruce Ohr advised them that Steele’s work product was not for the U.S. Government but, rather, was political opposition research for a private political party.”
The briefs repeated this process for the remaining individual defendants: Joe Pientka, who served as a supervisory agent on the Crossfire Hurricane team; Stephen Somma, an FBI agent who represented himself as “Steve Holt” to Page; and Brian Auten, an FBI supervisory intelligence analyst.
Pientka, Carter Page stressed, had falsely certified that the information in the first FISA warrant was verified for accuracy and later failed to correct the application, even after learning in November 2016 from Ohr that Steele was not a reliable source and had been paid to conduct the opposition research against Trump.
The response filed on Saturday also detailed Somma’s involvement, noting that he had pushed initially for the FISA warrant. Further, according to Page, “Defendant Somma personally provided incomplete, inaccurate, and conflicting information to the DOJ Office Attorney who asked whether Dr. Page had been a source for the CIA.”
In fact, according to Page, Somma actually knew he had served as an “operational contact” for the CIA from 2008-2013, but failed to accurately describe that relationship to others. Somma also did not inform the FISA court that Igor Danchenko, Steele’s primary sub-source for his fabricated dossier, contradicted Steele’s supposed intel.
The final defendant, Auten, also held personal responsibility for violating Page’s Fourth Amendment rights and violations of the Patriot Act, according to Page’s lawyer. Auten “played an instrumental role along with the agents preparing the FISA applications—including reviewing the probable cause section of the applications.”
In preparing the applications, Auten “falsely enhanced the credibility of information obtained from Steele,” according to Page, writing “that information from Steele had been ‘corroborated and used in criminal proceedings,’ although none of Steele’s past reporting as an informant had been corroborated and had never been used in any criminal proceedings.”
Auten also “intentionally failed to disclose the negative feedback that he had received from British Intelligence Service colleagues regarding Steele,” according to the court filing, including a caution from “Steele’s former colleagues that Steele exercised ‘poor judgment’ and pursued as sources ‘people with political risk but no intel value.’”
2. So Much Still Unknown
Even with the details noted above and additional ones included in the 100-plus pages of combined briefs filed by Page’s legal team this weekend, so much remains unknown because the government holds sole possession of the information. That lack of knowledge, Page argued in his briefs, makes dismissal of his lawsuit at this stage premature.
“It is also abundantly clear that there is a trove of currently non-public documents and facts that relate to Dr. Page’s claims, which are presently in the exclusive possession of the Individual Defendants and the United States and its agencies, but which will undoubtedly further support and vindicate Dr. Page’s claims,” Page’s attorney wrote.
Then, as a perfect illustration of the point, Page’s legal team pointed to the fact that after they initially filed suit in November 2020, “additional facts concerning Defendant Clinesmith’s role with respect to the alteration of the email were disclosed when the Department of Justice filed its sentencing memorandum in Defendant Clinesmith’s criminal prosecution, including internal FBI emails not referenced in the Horowitz Report.”
Also unknown at this time is which defendants, if any, leaked information to the press. The brief suggests Lisa Page and Strzok hold responsibility for the leaks, noting that “on Monday, April 10, 2017, Defendant Strzok sent [Lisa Page] another text message stating, ‘I had literally just gone to find this phone to tell you I want to talk to you about media leak strategy with DOJ before you go.’”
“Two days later,” the brief continued, Strzok “sent Defendant Lisa Page a text message to alert her that two media articles were coming out about her ‘namesake’ [Dr. Page] and that one was worse than the other.” Then, later the same week, “the Washington Post and the New York Times published articles about Dr. Page and the government’s investigation of him, including that FISA warrants were used,” with Strzok that weekend texting Lisa Page: “article is out!” and “Well done, Page.”
The briefs filed this weekend also stressed that after the FISA warrant was issued, “a stream of information about Dr. Page . . . and his supposed status as a Russian agent working to undermine the nation, began to flood the airwaves and the newsstands.” “The source of that information can only have been the Crossfire Hurricane team,” the brief argued.
In addition to Strzok and Lisa Page, in the separate brief Carter Page’s legal team filed this weekend in response to the government’s motion to dismiss, lawyers claimed that defendants Comey and McCabe also “leaked information and records concerning Dr. Page to media outlets, including but not limited to the existence of the FISA warrants, the contents of the warrant applications, and the results of the warrants, that were protected from disclosure under FISA and the Privacy Act.”
Without discovery, however, Page lacks the ability to establish the party or parties responsible for the leaks with certainty, which supports his argument that dismissing his claims at this point is premature.
3. It’s David and Goliath All Over Again
Reading Page’s briefs also reminds of the lopsided battle he faced in trying to clear his name when he went up against the Crossfire Hurricane team. He literally wrote Comey. He reminded the FBI that he had worked with the CIA. He voluntarily submitted to multiple interviews with FBI agents. His lawyer spoke with Clinesmith.
Yet they persisted. It was one individual against the mammoth monstrosity that calls itself the intelligence community.
Now Page is taking on the same monster that is proving itself as regenerative as the mythical hydra. Not only does Page face the federal government, represented by Department of Justice attorneys, but each defendant has his or her own group of powerhouse D.C. lawyers combatting Page’s push for justice, leaving Page’s small legal team fighting against nine separate teams of defense attorneys.
One wonders who is paying for all those private law firms, and whether it is taxpayers?
4. Zingers Galore
While Page’s legal team may be outgunned, their briefing proves top-notch, both in its legal advocacy and its ability to point out the absurdity of many of the defendants’ arguments with a flair that cuts through legal niceties.
Early on, Page’s attorneys honed in on the key strategy the defendants seem to have settled on—point the finger at someone else. Each defendant sought to “outdo each other in minimizing their respective roles in the fiasco,” the brief noted, “each claiming their culpability in deceiving the FISC, unlawfully disclosing information, and violating Dr. Page’s rights was too minor to impose civil liability on them.” “If the individual defendants are to be believed,” the brief quipped, “these unlawful and false warrants wrote themselves.”
As quoted from Ian Fleming in “Goldfinger,” “Once is happenstance. Twice is coincidence. The third time it’s enemy action,” crystalized another point by Page’s legal team: that the defendants’ conduct cannot be put down to mistakes or even sloppiness but creates the reasonable inference that they intentionally caused the violation of Page’s rights.
Then, in summing up their argument on behalf of Page, the brief closed by reminding the judge that “the FBI unlawfully used the power of the federal government, in the form of secret, anti-terrorism surveillance tools, to violate the rights of an innocent American.” “It is long past time for the United States to step up to the plate and do right by Dr. Page,” the brief closed.
5. Tough Legal Question
Whether Carter Page will succeed in fending off dismissal of his case against the DOJ, FBI, and litany of Crossfire Hurricane agents will not be known for some time. The defendants will all have a chance to reply to Page’s briefing, meaning another nine briefs to counter Page’s two court filings.
The district court will then face many tough legal questions, beginning with whether Page waited too long to sue. Next, the court will need to determine whether Page adequately alleged sufficient facts under his various theories of liability and specifically whether each individual defendant holds responsibility for the illegal FISA warrant under an “aiding and abetting” theory.
Carter Page also presents a unique claim against the federal government under The Privacy Act, arguing that his rights were violated by the inspector general when the IG refused to allow Page to review and respond to the report discussing the four FISA warrants obtained against Page.
Check back later this week for a legal analysis of these and the other issues presented in Page v. Comey. In the meantime, consider what it means to our country that this case even exists.
Margot Cleveland is a senior contributor to The Federalist. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.