Scot free? FBI declares it has no records of discipline against lawyers in Russia FISA case

Just days after it was sharply rebuked for its conduct in the Russia collusion investigation, the FBI is declaring it possesses no records of any disciplinary action taken against lawyers who pursued a deeply flawed Foreign Intelligence Surveillance Act warrant targeting the Trump campaign.

The declaration was made Thursday in a U.S. District Court motion seeking to dismiss an open records lawsuit brought by the Southeastern Legal Foundation, a public interest law firm that frequently argues cases before the Supreme Court.

The foundation’s Freedom of Information Act (FOIA) lawsuit sought any records from the FBI of actions taken with or communicated to the FISA judges or other disciplinary bodies against lawyers involved in the surveillance warrant that was obtained against Trump adviser Carter Page in October 2016 and renewed three times in 2017.

“The FBI informed Plaintiff that it was ‘unable to identify records responsive to’ the FOIA request,” the government’s motion seeking dismissal states. “Because the search requested by Plaintiff in the FOIA request and the Complaint has been conducted, Plaintiff’s claim is now moot.”

The FBI’s claim is certain to touch off new concerns amongst civil liberties experts and conservatives, who fear the bureau has not taken any disciplinary action against the lawyers and supervisors who submitted a deeply inaccurate, flawed application for the warrant.

The declaration comes just four days after Justice Department Inspector General Michael Horowitz excoriated the FBI’s handling of the FISA warrant, identifying 17 significant acts of misconduct, false statements and omitted information. That included one instance in which an FBI lawyer falsified a document in the FISA process.

Horowitz’s report identified a total of 51 violations that rendered the FBI’s search warrant request improper, including nine false statements, nine misleading statements and 33 claims that were not properly documented.

The magnitude of the false information and misconduct was so sweeping that Horowitz suggested Wednesday in congressional testimony that the FBI may have engaged in “illegal surveillance” by deceiving the court.

Todd Young, executive director of the foundation, said the FBI’s claim of no responsive records “does not pass the straight-face test.”

“Horowitz laid out a clear pattern of ‘errors and omissions’ – more than 17 such errors – committed by the FBI before the FISC on four separate warrant applications on Carter Page,” he said.

The FOIA lawsuit sought a broad set of document meant to capture any communications between the FISA judges or other disciplinary bodies.

Kimberly Hermann, the foundation’s chief counsel, said she plans to fight the FBI’s effort to dismiss the FOIA lawsuit.

“The FISA court has stringent rules governing behavior because it makes decisions on whether a federal agency can spy on Americans. Further, the burdens to tell the truth, disclose timely, and update the FISA court are even more critical because there are no other parties than the government providing evidence to the court – it’s unlike any other court in America

As a matter of disclosure, Southeastern Legal Foundation has represented me in several open records cases in 2019, including a motion asking the FISA court if it has any disciplinary concerns about the FBI conduct in the Russia case. Those legal matters are pending.