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4 Unanswered Questions After The Justice Watchdog's Senate Briefing

Michael Horowitz, inspector general for the Justice Department, testified before the Senate Judiciary Committee Wednesday.
Tasos Katopodis
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Michael Horowitz, inspector general for the Justice Department, testified before the Senate Judiciary Committee Wednesday.

Senate Republicans horsewhipped the FBI and Justice Department on Wednesday after a top watchdog documented what they agreed were egregious problems with a surveillance case during the Russia investigation.

But even Justice Department Inspector General Michael Horowitz's 476-page report and his several hours of testimony before the Senate Judiciary Committee didn't end the imbroglio over the Russian attack on the 2016 election.

At least four big questions endure about the way ahead for the FBI and the Justice Department and the political outlook for President Trump.

1. How many people may be punished — and who?

Horowitz's report found at least 17 serious problems with the actions of investigators in 2016 and 2017 as they applied for a Foreign Intelligence Surveillance Act warrant on a junior aide to Trump's campaign, Carter Page.

The IG found the overall investigation into the attack on the election was opened properly and didn't dispute any of its findings. However the Page subplot, at least, was deeply problematic, Horowitz and Republicans agreed.

Republicans emphasized their argument that the omissions and other problems in the Page process weren't just human oversights or paperwork slip-ups, but in some cases couldn't be explained and reflected what critics called clear animus by the officials involved.

"What happened here isn't a few 'irregularities,'" said Judiciary Committee Chairman Lindsey Graham, R-S.C. "What happened here is: the system failed."

The question now is whether Attorney General William Barr or FBI Director Christopher Wray, in receipt of Horowitz's report and having viewed the hearing on Wednesday, will discipline or fire any of those involved.

Horowitz told senators on Wednesday he didn't know whether any disciplinary action had been taken but he did say that a few of the special agents and others who figured in his report remain on the job within the federal law enforcement world.

Barr also faulted the Russia investigation this week in a series of TV appearances that he used to emphasize how weak he thought the case had been. Wray said when he responded to Horowitz's report that the FBI would be willing to hold employees accountable if supervisors feel that is appropriate.

The prospect for discipline or firings in the FBI is not only important to the bureau and Justice Department; if it happens it could be another inflection point in the political wars over federal law enforcement that have flared since 2016.

Trump, never a fan of the leadership of the FBI, intensified his criticism of Wray and its leaders this week. A slate of firings or other accountability measures inside the FBI could mean another black mark against a bureau that already has a target on its back.

Horowitz returning for testimony following a short break Wednesday.
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Horowitz returning for testimony following a short break Wednesday.

2. What did the surveillance on Page reveal?

Officials asked for and received extensions in the FISA surveillance on Page from the secret court that oversees these cases. Such warrants aren't supposed to be renewed unless they produce useful intelligence.

Setting aside the problems Horowitz now has documented with the initial Page request, what did investigators glean then as they were collecting his emails and other communications?

Sen. Richard Blumenthal, D-Conn., asked the IG about that. Horowitz said he didn't know how much he could reveal in "this setting," meaning the open hearing — suggesting the material is classified.

One section about the intelligence collected, including page 201 of Horowitz's report, is heavily redacted.

Page traveled to Russia twice in 2016 and investigators have never been able to fully account for his activities or meetings, according to the report by former special counsel Robert Mueller.

Page, meanwhile, has maintained all along that he did nothing wrong and never was charged in the Russia investigation.

What's more, Horowitz found that Page had earlier been a source for the CIA and the agency verified as much to the FBI during the course of its investigation — which an FBI attorney concealed from others involved with managing the application for surveillance.

Horowitz didn't take a position as to whether a surveillance court judge in possession of the full facts might have rejected the FBI's application for a warrant. As events played out, however, the court agreed to renew the collection into 2017. Why?

Blumenthal's exchange with Horowitz, and the report, suggested that FBI officials thought at the time of the surveillance on Page that what it was yielding was of foreign intelligence value — and the FISA court agreed. But precisely what that was and what made them believe that remains unclear.

3. What's coming next from the IG?

Republicans spent Wednesday zoomed in closely on the case of Page and what they called the abuse of the foreign intelligence surveillance process.

Democrats sought to widen the aperture and emphasize that the Russia investigation was not a "hoax" or a "witch hunt," as Trump often said, and really did uncover a historic wave of active measures that originated from Moscow and St. Petersburg.

A few members also had specific questions for Horowitz about issues from 2016 that have never been resolved, including those that may continue to resonate in today's supercharged climate about Trump and impeachment.

One was about former New York City Mayor Rudy Giuliani, long a Trump supporter but who has taken on central importance over his role in the Ukraine affair.

What about Giuliani's claims in autumn of 2016 that "big surprises" were coming — ahead of revelations about the FBI revisiting its Hillary Clinton email investigation?

Illinois Sen. Dick Durbin asked Horowitz whether he was looking into whether any federal officials in Manhattan might have tipped off Giuliani, who once served as U.S. attorney there.

"We are looking at, still," the issue of leaks, Horowitz said — but the issue is establishing what took place based on the evidence in hand.

4. Will Congress act?

FISA and surveillance practices long have had critics in Congress and they've been the subject of other subplots in the post-2016 saga.

Other important questions raised by the hearing on Wednesday were not only about how the FBI and Justice Department may change their practices within the authorities they have now, but about whether Congress may act too.

Nebraska Sen. Ben Sasse said he was chagrined to sit on the same dais as Utah Sen. Mike Lee, a longtime skeptic about federal surveillance powers, and to admit that Lee had been right all along about what he called their ripeness for abuse.

Sasse said he knew that Lee wouldn't drink it but he offered to buy him whiskey. Another Republican, North Carolina Sen. Thom Tillis, invited Lee to resume his "smirk" about earlier warnings he'd sounded about FISA.

Some Democrats including Blumenthal also suggested they might want to return to the issue of what they called "reforming" FISA.

Republicans control the majority in the Senate and Wednesday's hearing left open the prospect they might try to address foreign surveillance practices. It wasn't clear to what degree Senate Majority Leader Mitch McConnell, R-Ky., might make that a priority, but Graham did make clear that he considers his work unfinished.

"This is the beginning, not the end, of this committee's involvement in this matter," he said. "Much more to follow."

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Philip Ewing is an election security editor with NPR's Washington Desk. He helps oversee coverage of election security, voting, disinformation, active measures and other issues. Ewing joined the Washington Desk from his previous role as NPR's national security editor, in which he helped direct coverage of the military, intelligence community, counterterrorism, veterans and more. He came to NPR in 2015 from Politico, where he was a Pentagon correspondent and defense editor. Previously, he served as managing editor of Military.com, and before that he covered the U.S. Navy for the Military Times newspapers.