The Justice Department inspector general revealed Tuesday that his investigators found errors in every FBI application to a secret surveillance court examined as part of an ongoing review — suggesting that problems exposed in the bureau’s probe of President Donald Trump’s 2016 campaign extend far beyond that case.
The memorandum issued by Inspector General Michael Horowitz stems from an audit launched last year after his office found 17 serious problems with the FBI’s surveillance applications targeting former Trump campaign adviser Carter Page. These interim results appear to indicate that other sensitive counterintelligence and counterterrorism cases are similarly plagued by mistakes.
Trump has long decried the FBI investigation of him and his campaign’s contacts with Russians as a politically motivated “witch hunt” aimed at wrecking his candidacy and his presidency, and he and his supporters are likely to embrace the new revelations as further evidence of wrongdoing among former FBI leaders.
Tuesday’s findings suggest, however, that the bureau may be suffering instead from broad, institutional weaknesses more than political bias — problems were found in an array of cases managed by FBI field offices across the county.
Stephen Vladeck, a law professor at the University of Texas at Austin, said the inspector general’s audit shows “the entire process is prone to abuse” — a function of inadequate accountability and oversight.
“The irony here is that, in one sense, the memorandum suggests that the Carter Page episode was not a partisan political scandal,” Vladeck said. “The irony is it suggests it was part of a far bigger and more problematic pattern — a nonpartisan, systemic problem.”
Horowitz’s early findings “should hopefully put to rest the assertion we hear across different administrations that we can trust the Justice Department to check itself.”
Page served as a foreign policy adviser to the Trump campaign in 2016, but after he left, the FBI sought and received authorization from a surveillance court to monitor his electronic communications for about a year. He was never charged with any crime and Horowitz issued a report last year highly critical of the FBI’s assertions to the court about Page.
A key part of the inspector general’s ongoing review has been to analyze documents — known as Woods files — assembled by the FBI to help ensure the accuracy of filings to the surveillance court, which was established by the Foreign Intelligence Surveillance Act, or FISA.
The inspector general selected a sample of 29 FISA applications to review and found problems with all of them.
The comparison of FISA applications to corresponding Woods files “identified apparent errors or inadequately supported facts in all of the 25 applications we reviewed,” the memo said, while in four cases, no Woods files could be found at all. In three of those cases missing supporting documentation, it was unclear whether a Woods file was ever created.
The inspector general’s staff continues to review the surveillance applications, but the memo bluntly states, “We do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy, or that the process is working as it was intended to help achieve the ‘scrupulously accurate’ standard for FISA applications.”
Each FISA application reviewed had an average of 20 “issues,” the memorandum said. One had a handful; the worst had 65.
The inspector general audit also suggests that Justice Department lawyers tasked with overseeing the FBI’s FISA work and rooting out problems frequently found troubling indicators but did not think they rose to the level of alerting the FISA court.
The memorandum said lawyers with the Justice Department’s National Security Division regularly found such errors during “accuracy reviews” of FISA applications.
In one sample of 42 applications, the accuracy reviews found “a total of 390 issues, including unverified, inaccurate, or inadequately supported facts, as well as typographical errors,” the memo said.
None of the 390 issues identified were deemed by Justice Department lawyers to be “material” errors, the memorandum said.
Horowitz has not reached any conclusion about whether the errors in the applications his investigators have reviewed are important or would have altered the decisions on whether to seek or approve FISA surveillance.
He did, however, make two immediate recommendations: that the FBI conduct a survey to determine whether any more Woods files are missing, and scrutinize the results of past accuracy reviews that should have surfaced these problems earlier and find ways to fix them.
In a response, FBI official Paul Abbate said the bureau has begun implementing dozens of changes to prevent such errors in the future. The FBI, Abbate wrote, “has been intensely focused on implementing these remedial measures with the goal of ensuring that our FISA authorities are exercised with objectivity and integrity.”
James Baker, who served as the FBI’s top lawyer from 2014 until early 2018, said the memorandum shows that fault lies with both the FBI and the Justice Department.
“I’m extremely disappointed, angry, and what they found is completely unacceptable,” said Baker, who has worked on national security law and FISA cases for decades, and helped draft the Woods procedure rules nearly two decades ago.
“Of course, I feel a shared sense of responsibility for this,” he said. “But I was relying on the people in the organization, and the policies and procedures that I was aware were in place.”
Baker said the Justice Department and the FBI may need to scale back the number of FISA applications to get a better handle on what agents are doing.
A Justice Department spokeswoman said officials are “committed to putting the inspector general’s recommendations into practice and to implementing reforms that will ensure that all FISA applications are complete and accurate.”
Civil rights groups said the memorandum vindicates their long-held view that the FISA process is prone to abuse precisely because of the intense secrecy that surrounds it.
“The Carter Page issue isn’t a one-off,” said Neema Singh Guliani, senior legislative counsel for the American Civil Liberties Union. “It’s becoming more and more clear that procedural surface changes are not going to address the fundamental flaws with the FISA process.”
Civil liberties advocates and some lawmakers have pushed for reforms to FISA in legislation to renew a set of surveillance provisions. Those provisions lapsed earlier in March when Congress did not renew them in time, and it is unclear when the legislative body will reconvene. Though the Senate passed a 77-day extension through the end of May, the House has not voted on it.