A former Justice Department official who reviewed the deeply flawed FISA applications against former Trump campaign associate Carter Page and who later assisted House Democrats in impeachment efforts against former President Donald Trump has been selected to serve in a key advisory role with the FISA court.
Mary McCord, currently a Georgetown law school professor and former acting assistant attorney general for national security, was picked by the FISA court to serve as an amicus curiae, “friend of the court,” with Georgetown announcing it last week. McCord recently served as legal counsel on Speaker Nancy Pelosi’s security review after the Capitol riot.
McCord took over the DOJ’s national security division in October 2016, when the first FISA application targeting Page was filed, and McCord reviewed that FISA and subsequent renewals. The FISA applications relied upon claims in British ex-spy Christopher Steele’s discredited and Democratic-funded dossier. McCord was also involved with the investigation into Lt. Gen. Mike Flynn. Her husband, Sheldon Snook, previously worked as a FISA court spokesman.
DOJ Inspector General Michael Horowitz’s report criticized the Justice Department and the FBI for at least 17 “significant errors and omissions” related to the FISA warrants against Page and for the bureau's reliance on Steele's dossier. The Justice Department told the FISA court it believed the final two of four Page FISA warrants were “not valid.”
McCord testified during House Intelligence Committee questioning in November 2017 she “did not have the authority to sign FISA applications,” but she had reviewed an early version of the first Page FISA application.
“I do know that it relied on information from Mr. Steele,” McCord said, adding that “I hadn’t seen a dossier. In fact, I didn’t read the dossier until January of 2017, when BuzzFeed published it.” She also falsely claimed Steele had been paid by Republicans before being paid by Democrats. In actuality, Steele was hired by Fusion GPS after it had been hired by the Clinton campaign through the Perkins Coie law firm.
On behalf of the Democratic House Judiciary Committee, McCord helped file multiple legal briefs in 2019 and 2020, including with the Supreme Court, as Democrats sought access to grand jury materials from special counsel Robert Mueller’s investigation as part of a House Democratic impeachment effort.
McCord was mentioned more than two dozen times in Horowitz’s FISA report, which said she was “involved in certain aspects of the investigation through the Office of Intelligence’s assistance with the first Carter Page FISA application in September and October 2016, as well as through meetings she attended in November and December 2016 about aspects of the” cases against Flynn and former Trump campaign manager Paul Manafort. She received a “comprehensive briefing” on Crossfire Hurricane in January 2017.
She told Horowitz’s team that “she had a telephone conversation with” FBI Deputy Director Andrew McCabe, “during which she advised him that she believed the FISA application needed to include more information about who hired Steele,” but McCabe “told us that he did not recall any specific conversations with McCord about this FISA application.” McCord “told us that she spoke to McCabe almost every day.”
The Horowitz report says an Office of Intelligence attorney “submitted an updated draft application to McCord for her review” on Oct. 14, 2016, and McCord “said the collective thinking was that filing the application was a legitimate investigative step even though it may later be criticized unfairly.”
McCord was also provided with the Page FISA renewal application on Jan. 3, 2017, which she remembered, and with another Page renewal application on April 3, 2017, though she claimed that “she did not have a specific recollection.”
She appeared on Yahoo News's Skullduggery podcast in December 2019, where she declined to give a firm answer on whether the DOJ would’ve applied for the Page FISA if all of the FBI mistakes had been revealed to the department at the time. She said she agreed with the reforms suggested by Horowitz and by FBI Director Chris Wray, claiming, “I am, of course, very disappointed” that the FBI did not provide the DOJ with potentially “exculpatory” information on Page.
Judge David Boasberg, the presiding FISA court judge, denied the Justice Department's efforts in January, seeking up to six months behind bars for ex-FBI lawyer Kevin Clinesmith, who pleaded guilty in special counsel John Durham’s Trump-Russia investigation, instead giving him probation.
Clinesmith admitted in August that he falsified a document during the bureau’s efforts to renew FISA surveillance authority against Page, editing a CIA email in 2017 to state that Page was “not a source” for the CIA.
McCord criticized Clinesmith, saying, “That’s the one that was the most shocking to me because we’re talking about a lawyer altering a document — like, there’s no explanation for that that’s a good explanation.”
But she also argued, “I think we can’t lose sight of the fact that one of the key sort of talking points coming out of the White House and out of the White House’s is that the entire Russia investigation was politically motivated, and I think that’s been debunked at least in part by this.”
McCord also seemed to defend the use of allegations by Steele in FISA filings.
“So this is something else that I think gets confused because particularly people like congressman Nunes, who were constantly saying that the Carter Page FISA was based on this dossier. The term ‘dossier’ didn’t even exist in the rubric of the discussions of the factual basis of the predicate for the FISA … No question there was information included that was provided by Christopher Steele,” she said. “But this idea of ‘dossier’ is something that came up much later and included all kinds of stuff that is not in that FISA, right? All the salacious stuff … had nothing to do with the information that was included in the FISA … I don’t even think all of that was written at the time of the Carter Page FISA.”
That claim was false, as the so-called “pee tape” claim appeared in Steele’s first anti-Trump report.
McCord defended the FISA process itself, claiming that “it is a very rigorous process” and even claiming that “compared to a search warrant in a criminal case, these have much, much more” scrutiny, arguing that “there is an adversarial process” in the FISA process, despite it being an ex parte proceeding.
She criticized Durham for weighing in to say he disagreed with Horowitz’s finding that Crossfire Hurricane was properly predicated, and she said, “I was really, really surprised by that … Very shocked. … It’s sort of like Prosecutor 101 — you don’t talk about ongoing investigations … I was very surprised, and it’s hard not to look at that and think of it as political.”
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