FISA Court Rulings Demand a Reckoning for the Legality of the Mueller Investigation

By Hans Mahncke

President Trump’s stunning election victory has paved the way for both accountability and closure regarding the Russiagate affair. Although the Mueller investigation concluded that there was insufficient evidence to support claims of collusion between Trump’s campaign and Russia, this outcome has always left a bitter aftertaste, as it meant that the focus remained on Trump and not on those who conspired against him. The current historical record falsely suggests that, rather than being a treasonous scam orchestrated from the highest levels of government, the Russia collusion investigation was a legitimate inquiry that ultimately ended in a stalemate.

While many of the stories requiring sunshine and accountability are well known—ranging from the unresolved DNC hack to the leak of false information about General Michael Flynn to the Washington Post, a story that significantly undermined the incoming Trump administration in 2017—one crucial aspect of the Russiagate scam that has largely escaped scrutiny is the origin of the Mueller investigation. Although Mueller’s inquiry and subsequent report have been analyzed in various ways, particularly regarding the egregious tactics employed, such as using Flynn’s son as a quasi-hostage to extract a false guilty plea from Flynn, the fundamental premise of the investigation has received little examination.

By carefully parsing and analyzing court documents and rulings from the Foreign Intelligence Surveillance Court (FISA court), it can now be conclusively demonstrated that the Mueller investigation was never legally predicated and should be retroactively nullified. Doing so would bring much-needed closure and a measure of justice to this disgraceful chapter in American history.

Before analyzing the issue, I must acknowledge that the idea of drawing conclusions from the FISA court rulings and applying them to the Mueller investigation originated with Stephen McIntyre. We have spent many hours discussing this topic, and our discussions continue. However, given my belief that invalidating the Mueller investigation is a crucial task for the incoming Trump administration, and after consulting with Stephen, I decided to publish this article now, even though some details are still being refined. Any errors or interpretations are my sole responsibility and should not be attributed to Stephen.

According to Mueller’s appointment letter, he was “authorized to conduct the investigation confirmed by then-FBI Director James Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.” To put it another way, Mueller's explicit task was to continue the Crossfire Hurricane investigation. Consequently, if Crossfire Hurricane was not legally predicated, then Mueller's investigation also lacked a legal foundation.

With this in mind, we should turn our attention to the FISA Court, specifically its rulings on the FISA warrant applications for Trump campaign advisor Carter Page. There is a large amount of overlap, including the use of identical language, between the FISA applications and the predication for Crossfire Hurricane as of March 2017.

In a January 2020 ruling that was largely overshadowed due to the impending Covid pandemic, Chief Judge James Boasberg of the FISA Court determined that, on multiple occasions, the FBI had withheld and concealed key exculpatory evidence regarding the Carter Page FISA warrant. He found that by the time of the second renewal application in March 2017, the predicate for the warrant was no longer valid. While Boasberg left open the possibility that the predicate may have become invalid much earlier, his definitive ruling that the warrant was unlawful as of March 2017 is crucial, as this predates Mueller’s appointment by two months.

The significant implication of Boasberg's ruling—that if one was found invalid, then the other should also be considered invalid—has been overlooked in subsequent commentary and, more troublingly, by John Durham’s investigation into the origins of Russiagate.

As of March 2017, the basis for the Crossfire Hurricane investigation, as presented by the FBI to congressional leadership, was largely identical to the basis presented to the FISA Court for the Carter Page FISA warrant. In particular, the crucial exculpatory information that the FBI withheld and concealed from the FISA Court regarding the Carter Page FISA warrant was withheld and concealed from congressional leadership in connection with the Crossfire Hurricane investigation itself.

Incidentally, the exculpatory evidence was also withheld from Attorney General Jeff Sessions before his decision to recuse himself from the Russia investigation. Had he known the truth, he likely would not have recused himself, realizing there was nothing to investigate. Without a recused attorney general, the Mueller investigation might never have happened.

Although the Horowitz Report, released in December 2019, revealed the withholding of crucial exculpatory evidence in the FISA matter, it failed to address the implications of its own conclusions for the predication of Crossfire Hurricane as of March 2017. Instead, the Horowitz report confined its analysis to the initiation of Crossfire Hurricane on July 31, 2016, before significant exculpatory information had emerged. This represents a glaring example of a 'limited hangout' by Horowitz, which has not been widely discussed. Specifically, while he stated that Crossfire Hurricane was properly predicated at its start, he omitted the fact that the predicate soon collapsed. Horowitz only addressed the situation as it stood in July 2016 and concealed that what applied then did not hold thereafter.

Be that as it may, even if we assume that the initial justification for Crossfire Hurricane in July 2016 was valid—and there are numerous reasons to contest this assumption—the Mueller investigation did not commence until nearly a year later. Therefore, any developments during that intervening period should have been taken into account when evaluating the legal basis for Mueller’s investigation, both by Horowitz and by Durham. But they failed to do so.

Fortunately, the FISA court meticulously outlined a multitude of issues that emerged during the Crossfire Hurricane investigation from July 2016 to March 2017, indicating that the investigation no longer had a valid basis as of March 2017. The fact that the FISA court ruled on matters related to the Carter Page FISA warrant rather than directly on Crossfire Hurricane is largely irrelevant, given that the claims made in the warrant application and the predicate for Crossfire Hurricane were essentially identical.

Credit: Stephen McIntrye

In its 2020 decisions and orders, the FISA Court expressed significant criticism of the FBI and clearly anticipated that the Durham investigation—mentioned in one of its orders—would examine and report on the misconduct, specifically by the FBI and its agents. Unfortunately, for reasons that remain unclear, the Durham report is silent on the issue of material omissions and, indeed, on the predication of the Mueller investigation.

As to the FBI’s Crossfire Hurricane predicate at the time that Comey briefed Congress in March 2017—a date specifically referenced in Mueller’s appointment letter—we have documentary evidence detailing the predicate at that time.

This evidence is found in a Talking Points memo, which served as the basis for Comey’s briefing of congressional leaders on March 8, 2017. The memo was uncovered in 2022 among a vast collection of documents released during Durham’s prosecution of Clinton campaign lawyer Michael Sussmann for lying to the FBI. The specifics of that prosecution are not the focus here; rather, it is important to note that this is how we learned the exact terms of the Crossfire Hurricane predicate as of March 2017. Notably, the most striking aspect when comparing the March 2017 predicate with the Page warrant application is their remarkable similarity.

The most damaging consequence of the FBI’s withholding and concealment of key exculpatory evidence—referred to by the FISA court as 'material omissions'—was not just the second and third renewals of the Carter Page FISA warrant after its underlying justification had been invalidated. Rather, it was the continuation of the Crossfire Hurricane investigation, which also lost its basis. Even more concerning was the transformation and institutionalization of this unpredicated investigation into the Mueller Special Counsel inquiry, effectively becoming a tool of lawfare.

Judge Boasberg followed his two-page order from January 2020, in which he declared the Page warrant renewals to be unlawful, with a much more detailed 19-page order issued on March 4, 2020.

Here are some examples of what Judge Boasberg deemed 'material omissions'—essentially fraud—in the Page warrant application, all of which are equally relevant to the Crossfire Hurricane investigation.

Boasberg ruled that the government had unlawfully concealed information regarding Page's prior relationship with the CIA, a fact that would have been highly relevant in evaluating Page’s alleged contacts with individuals connected to the Russian government. In reaching this conclusion, Boasberg was not even aware that Page had not had any contact with individuals connected to the Russian government. That claim had been fabricated by disgraced dossier author Christopher Steele. The FBI’s lie about Page’s contacts with the CIA alone provided more than enough basis for Boasberg to reach his conclusion on this issue. One can only speculate how much harsher his ruling would have been had he known that Steele had fabricated everything—something the public only fully learned after Stephen and a group of internet users, including myself, identified Steele’s phony source, Igor Danchenko.

Likewise, Boasberg reached these conclusions despite not being aware that Steele and Danchenko had fabricated the stories attributed to “Person 1” (Sergei Millian), their purported informant for nearly all the derogatory information in the dossier. The FISA court’s ruling, while already highly critical, would have been even more so had Boasberg known that Person 1 was not a source at all. Boasberg’s ruling was merely predicated on the assumption, based on the Horowitz report, that Person 1 was a “boaster” and an “egoist” who may have “engaged some embellishment.”

Boasberg was similarly unaware that Danchenko was not based in Russia, as the FBI had falsely claimed. Had he and the FISA court known that Danchenko was actually based in Washington, D.C., and had worked at and maintained close ties to the Clinton-aligned Brookings Institution, this revelation would have undoubtedly made Boasberg’s verdict even more damning than it already is. It also would have meant that the FISA warrants would likely never have been approved in the first place.

Boasberg additionally ruled that the government had concealed from the court information “bearing on Steele's personal credibility and professional judgment,” as well as information that “confirmed the political origins of the Steele reporting” and “information concerning Steele 's own personal bias.” Government lawyers later acknowledged Steele’s political motivations and complete lack of reliability. However, these admissions came long after the expiration of all FISA warrants related to Page.

Boasberg did not stop there. He also ruled that the theory presented in the FISA warrant application—that “Page was participating in a conspiracy with Russia by acting as an intermediary for Trump campaign manager Paul Manafort”—was fundamentally flawed. On this issue, the government failed to inform the court of exculpatory statements made by Page to a confidential human source, Stefan Halper.

Regarding the FBI’s false assertion that the Trump campaign had altered the Republican Party platform concerning Ukraine, the court found that this claim was contradicted by evidence that had been concealed from the court.

Boasberg’s forensic analysis of the Page warrant applications is remarkable in its scope and depth. This is significant because much of the Crossfire Hurricane predicate, as outlined in the FBI’s March 2017 Talking Points memo, not only closely resembles the Page warrant application but also relies heavily on the dossier. For instance, the language in the warrant application regarding Steele and his purported network of sources in Russia—a network that did not exist—was copied verbatim into the FBI’s memo. Similarly, the claims made in the memo about Page and Manafort were invalidated by Boasberg’s ruling as they are based on the dossier.

Furthermore—and this may not have been reported previously—the memo’s assertions regarding Michael Flynn do not serve as a predicate at all, as they are exculpatory in nature. Specifically, the memo acknowledges that Flynn spoke with the Russian ambassador about expulsions, not sanctions. This distinction is particularly significant because Mueller later falsely charged Flynn with discussing sanctions with the ambassador and subsequently lying about it. In simple terms, Mueller charged Flynn with an offense that was explicitly disproven by Mueller’s own predicate.

Consequently, as of March 2017, the Crossfire Hurricane predicate stood on a very precarious foundation. The only part of the predicate that was not explicitly invalidated by the FISA court was an allegation against Trump campaign advisor George Papadopoulos, concerning which Comey also provided false statements.

The FBI memo alleged that Papadopoulos had informed an Australian diplomat that Russia might release damaging information about Hillary Clinton. This was a widely circulated rumor at the time and could not have formed the basis for any valid predicate. Thus, the initial predicate for Crossfire Hurricane in July 2016 had embellished this rumor by suggesting that Papadopoulos might have had knowledge of contact between the Trump team and the Russians. The same claim was made in the FISA warrant application.

Indeed, the Australian diplomat who originally provided the information about Papadopoulos, Alexander Downer, has confirmed that Papadopoulos made no claims about having contact with the Russian government: “Papadopoulos made no mention of Clinton emails, dirt or any specific approach by the Russian government to the Trump campaign team with an offer or suggestion of providing assistance.”

However, even if we were to assume that this embellished claim about potential knowledge of contact rendered the July 2016 predicate sufficient, by March 2017, the FBI was aware of contrary evidence. First, the FBI spoke to Downer. The transcript of that conversation remains under lock and key, but according to the Durham report and to Downer himself, he confirmed “that Papadopoulos simply stated 'the Russians have information' and that was all.” In the intervening seven months, the FBI also had numerous interactions with Papadopoulos, both directly and through surveillance and informants, and was aware that he vehemently denied any contact. These denials were concealed from Jeff Sessions, Congress, and the FISA court. Even more troubling, Comey misrepresented the situation by claiming that Papadopoulos had so far not confirmed the FBI’s assertions regarding an approach by the Russian government. In reality, Papadopoulos had repeatedly and vehemently denied that any such interaction had ever occurred.

For there to be accountability and closure regarding the Russian collusion hoax, the investigation promised by Attorney General Barr in December 2019—and anticipated by the FISA Court—into the FBI's withholding and concealment of exculpatory information must now finally be conducted, especially with President Trump set to return to office. Once taken to its logical conclusion, this investigation will reveal that, just as the FISA warrants were declared invalid, the Mueller investigation should also be declared invalid.