Case: In Re Motion for Publication of Records (May 2019)

On May 22, 2019, John Solomon and the Southeastern Legal Foundation (movants) moved for the publication of FISC records regarding: 1) any records or documents related to any investigation that an attorney violated the FISC Rules of Procedure or Rules of Professional Conduct in connection with the Carter Page Foreign Intelligence Surveillance Act applications and renewals or any of the Section 702 violations the government notified FISC about on October 24, 2016; 2) any records or documents related to violations of FISC Rule of Procedure 13 in connection to the Carter Page FISA applications and renewals or the Section 702 violations discussed on October 24, 2016; and 3) any records or documents regarding a referral or complaint made to any attorney disciplinary body for conduct in connection to the Carter Page FISA application and the Section 702 violations acknowledged on October 24, 2016.

The motion alleged that government attorneys were "suspected of lying, misleading, and withholding information from [FISC] in order to obtain permission to conduct surveillance of American citizen Carter Page." The motion was filed under movants' common law right of access and First Amendment right to judicial records.

The motion outlined how the FBI and DOJ in October 2016 sought and received a FISA order authorizing the government to electronically surveil Carter Page, a volunteer advisor to the Trump presidential campaign. The FBI and DOJ obtained one initial FISA warrant and then three subsequent renewals. Movants alleged that the "Steele dossier" served as the primary basis for the initial application and renewals. The alleged misconduct by the government was the failure to notify FISC that some information from the Steele dossier was disproven and stemmed from a "desperate" attempt to defeat Mr. Trump's campaign. They further alleged that the DOJ and FBI presented the "already debunked information" to FISC as verified, violating FISC Rule of Procedure 13 which required the government to correct any misstatements of fact made to FISC. The motion also alleged other types of procedural violations related to the governments' alleged misstatements to FISC.

The movants sought the judicial records in efforts to establish whether or not the FBI and DOJ attorneys "actually engaged in misconduct." Movants reasoned that without the requested records the integrity of FISC and the FISA process would be undermined.

The movants argued that even if FISC found that it was not required to release the records on a First Amendment or common law claim, it still should release the documents "to protect this Court's integrity, the public's confidence and trust in the FISA application process, and the constitutional rights of any American that is the target of a surveillance order."

On January 6, 2020, movants submitted a notice of supplement information. The supplemental notice outlined disclosures made in the "U.S. Department of Justice Office of the Inspector General's Review of Four FISA Applications and Other Aspects of the FBI's Crossfire Hurricane Investigation" released on December 9, 2019. The report identified at least 17 errors in the FISA applications and renewals pertaining to Carter Page. The report discussed the FBI investigation of the Trump presidential campaign and the Russian government's attempts to interfere in the 2016 U.S. presidential election. Movants used the report as evidence of the alleged misstatements to FISC by the governments, claiming that the report proved "that the FBI and DOJ attorneys engaged in misconduct before [FISC]."

In response, FISC ordered the Government to submit new procedures to ensure the accuracy of their factual statements to FISC. The Court issued this Order at a new docket.