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Vicious Cycle: How Press Bias Fed FISA Abuse in the Trump-Russia Panic

Stewart Baker
Wednesday, March 8, 2023, 12:15 PM

It’s high time for the FBI to end its reliance on anonymous press reports to prove critical facts in FISA applications.

The E. Barrett Prettyman Courthouse in Washington, D.C., which houses FISA court. (NCinDC,; Attribution-NoDerivs (CC BY-ND 2.0),

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It looks like we’re in the morning-after stage of media coverage of former President Trump and his Russia connections. Most recently, the Columbia Journalism Review (CJR) published a harsh analysis of the press’s role in stoking the Trump-Russia panic. The author, Jeff Gerth, is a respected former journalist, and the CJR is more or less the official organ of mainstream media, but the piece is an unsparing chronicle of how the media’s hostility to Trump led it to overhype the Trump-Russia connection. 

Gerth concludes that entering into an “undeclared war” with Trump has saddled the U.S. press with a lasting credibility problem. What’s been unnoticed until now is how the press’s unremitting hostility to Trump also hurt the credibility of the FBI and its intelligence operations. 

The Trump-Russia media saga began with a bit of journalistic malpractice. As the GOP convention was preparing to nominate Trump, Gerth tells us, the Washington Post ran one of the early attacks on Trump for kowtowing to Russian interests: a July 18 opinion column from Josh Rogin headlined, “Trump campaign guts GOP’s anti-Russian stance on Ukraine.” It was wrong. In Gerth’s understated words: 

The story would turn out to be an overreach. Subsequent investigations found that the original draft of the platform was actually strengthened by adding language on tightening sanctions on Russia for Ukraine-related actions, if warranted, and calling for “additional assistance” for Ukraine. What was rejected was a proposal to supply arms to Ukraine, something the Obama administration hadn’t done.

But being wrong didn’t prevent the story from going viral. Within days, the false claim was repeated in opinion pieces by Paul Krugman in the New York Times and Jeffrey Goldberg in the Atlantic. It moved to the center of the presidential race when hacked Democratic National Committee emails were made public during the summer. The Clinton campaign seized on the Trump-Russia narrative as a political defense. Christopher Steele, an investigator working for a law firm retained by the Clinton campaign, peddled his phony dossier to the FBI, and one of the firm’s lawyers fed the FBI a tall tale about secret Trump communications links to Russia’s Alfa Bank—though the Clinton campaign’s general counsel insists he did not do so on the campaign’s behalf. The apparent hope was that an open FBI investigation of Trump could be leaked to balance the embarrassing FBI investigation of Clinton. Thanks in part to Trump’s odd bromance with Russian President Vladimir Putin, the Clinton campaign ploy worked. In October 2016, the FBI sought a Foreign Intelligence Surveillance Act (FISA) intercept on Trump adviser Carter Page, supported by an FBI affidavit riddled with errors, as later cataloged by the Justice Department’s inspector general.

One error that the inspector general did not identify, however, concerns the Washington Post opinion piece about the GOP platform. A critical part of the FBI’s case against Page was the claim that his many contacts with Russians were part of what its affidavit called “a well-developed conspiracy of cooperation” between the Trump campaign and the Russian government. That’s a remarkable claim, and it naturally gives rise to the question of exactly what the parties did to advance this “well-developed conspiracy.” The FBI’s answer was the GOP platform change—it was presented as a clear step by Trump’s associates to move GOP policy closer to protecting Putin’s interests. 

As evidence of this crucial element, the affidavit relied on what it called an “article in an identified news organization” (that is, Rogin’s op-ed) and “assesse[d] that, following Page’s meetings in Russia, Page helped influence [the Republican Party] and [the Trump] campaign to alter their platforms to be more sympathetic to the Russian cause.” That “assessment” had no basis in fact or any independent investigation; it relied entirely on the inaccurate opinion pieces in the Post, the Times, and the Atlantic. 

This was not a one-time error on the part of Justice and the FBI. After relying on the GOP platform story, the Carter Page affidavit went on to draw extensively from another media narrative—a “September 23rd News Article” from “an identified news organization” reporting that “U.S. officials received intelligence reports that when Page was in Moscow … he met with two senior Russian officials.” 

This is truly embarrassing. The FBI, in a top secret filing, is relying on a press report describing the contents of intelligence reports received by the U.S. government. If there were such reports, why didn’t the cleared authors of the affidavit cite them, rather than offering secondhand hearsay that had been unlawfully leaked by someone with an agenda to a reporter with his own biases? 

And why did the affidavit keep talking mysteriously about “identified news organizations” instead of just naming them? Sure, if the FBI had gathered this information through intercepts, it had an obligation to protect the identities of U.S. persons. But the FBI’s intelligence collection in this case consisted of reading the newspaper. There was no need to obscure the identities of Josh Rogin or the Washington Post. More important, this usage deprived the FISA court of information it needed to judge the reliability of the FBI’s assessment. The court might reasonably think that an op-ed like Rogin’s is more likely to be slanted or to omit relevant information than a straight news story. It might also reasonably think that a story in the Washington Post has more credibility than a story in, say, Yahoo News. But the FISA court didn’t get a chance to make that judgment. The second story, about Page’s meetings with Russian officials, actually did come from Yahoo News, but both stories are described simply as coming from “an identified news organization”—a designation that could apply just as easily to Mother Jones or the Intercept.

There might have been a day when media reporting could be cited without much fear that the reports were inaccurate—or that it would matter which “identified news organization” published the story. But those days are gone. As Gerth’s CJR story shows in painful detail, political polarization has claimed the press, and mainly for the left. In response to the widespread perception that establishment media routinely slant stories against conservatives, an alternative ecosystem of right-leaning media has emerged, largely devoted to critiquing (and occasionally to outreporting) their rivals on the left. (Byron York, of the Washington Examiner, for example, did the most detailed dissection of the GOP platform smear.) 

This is a trend that dates back to the Drudge Report and its revelation in the 1990s that mainstream media were suppressing the story of President Clinton’s dalliance with Monica Lewinsky. The divide between left-leaning and right-leaning media has only grown wider since. But the FISA court, the FBI, and the Justice Department have apparently not noticed. No one thought to tell the court that the affidavit was relying on outlets that might have an anti-Trump bias, and neither the Justice Department nor the strikingly passive FISA court thought to examine the stories more skeptically for that reason. 

The intelligence community in general, and especially those who administer FISA, now have a deep credibility problem on the right. It comes at a bad time. The country’s single most important intelligence authorization, Section 702 of FISA, must be renewed by Congress this year. While the Carter Page intercepts relied on a different FISA authority, that isn’t likely to matter to House Republicans if they believe that the intelligence community has not taken steps to root partisan bias—and the risk of bias—out of all of its processes.

Considering the stakes, the use of press reports in FISA applications is an easy place to start. The FBI should have to meet a heavy burden before relying on press reports to prove critical facts in FISA applications. It may be reasonable to rely on the media for general background, or for the weather in Washington on a particular date, but for facts that could determine whether an American becomes a wiretap target, the FBI should show why it can’t confirm the information itself. And when it has no choice but to rely on press reports, it should disclose the source, and it should tell the FISA court whether the source has been credibly accused of a bias that might influence the accuracy of its reporting. 

If it needs help in reading the news with a skeptical eye for bias, that’s no problem. It can just ask any Republican.

Stewart A. Baker is a partner in the Washington office of Steptoe & Johnson LLP. He returned to the firm following 3½ years at the Department of Homeland Security as its first Assistant Secretary for Policy. He earlier served as general counsel of the National Security Agency.

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