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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
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Experts doubt Carter Page can get legal redress he craves

Legal experts see more challenges for Carter Page if he continues to seek justice from the government for what he describes as "unlawful spying."

WASHINGTON (CN) — A federal judge tossed Carter Page’s lawsuit against the FBI and top former officials over falsified applications used to obtain warrants to surveil him and some experts see little opportunity for the legal redress sought by the one-time policy adviser to former President Donald Trump.

Former U.S. Attorney Barbara McQuade told Courthouse News this week that U.S. District Judge Dabney Friedrich’s Sept. 1 ruling may finally bring an end to Page’s nearly two-year court battle to get the government to pay him millions in damages for secretly wiretapping his electronics using faulty warrant applications.

“I think it will be difficult for Mr. Page to obtain relief,” McQuade said, “because he likely cannot show that the individuals who conducted the surveillance intentionally violated the law.”

Friedrich, a Trump appointee, acknowledged in her 54-page memorandum opinion that a 2019 Department of Justice Office of the Inspector General report found FBI agents made more than a dozen errors in Foreign Intelligence Surveillance Act applications used to obtain warrants to surveil Page.

But “that does not mean Page has a remedy for monetary damages under the law,” said McQuade, who served as the U.S. attorney for the Eastern District of Michigan from 2010 to 2017 after then-U.S. Attorney General Jeff Sessions asked her and 45 other sitting U.S. attorneys to resign at the behest of the Trump administration.

“Based on the IG's report, it appears that the biggest problem in this case and in others is that the FBI has been sloppy in a process that requires meticulous care,” said McQuade, who currently teaches law at the University of Michigan.

And while the former U.S. attorney believes everyone should demand and expect the FBI to follow its duties under FISA with “exceptional care,” McQuade said it “seems unlikely that a suit for damages can arise under these circumstances.”

Page, who worked as a foreign policy adviser to then-candidate Trump in 2016, became the center of Special Counsel Robert Mueller’s 2017 investigation into links between Trump associates and Russia, as well as Russian interference in the 2016 election.

The Mueller Report, released in 2019, concluded that Page did not help coordinate Russia’s election interference efforts.

Page has since unsuccessfully sued the Democratic National Committee and Perkins Coie law firm, as well as Oath Inc. and its subsidiaries Yahoo! News and HuffPost for defamation claims related to the surveillance.

His most recently dismissed lawsuit targeted the Department of Justice, the FBI, its former director James Comey, and other high-level government officials, seeking $75 million in civil damages for electronic surveillance that he claims violated federal statutes put in place to “prevent unlawful spying on United States persons, as well as the Constitution.”

Page insisted in the suit that the government specifically sought to surveil him because of his political ties to Trump. He repeatedly pointed to the Inspector General’s report as evidence of the extent of the alleged crime.

In justifying his request for $75 million in damages, Page said he received death and kidnapping threats after being falsely branded as a traitor to the U.S., and that he lost millions of dollars in future lifetime earning potential because of the “unlawful spying.”

But former federal prosecutor Neama Rahmani echoed McQuade’s sentiments, telling Courthouse News that “just because something is illegal does not mean that it is the basis for civil damages.”

In dismissing the suit, Friedrich wrote that, “there is little question” many individuals within the FBI and the agency itself “engaged in wrongdoing,” but that Page failed to bring an actionable claim.

“When it comes to Page’s core claim — that the defendants misled the [Foreign Intelligence Surveillance Court] to obtain surveillance warrants without probable cause — the court cannot create a cause of action that Congress did not enact,” the judge concluded.

Rahmani said earlier this month that he agrees with Friedrich’s finding that Congress passed FISA to “counter the abuses of warrantless surveillance,” which is why the law in its current form allows suit only against those who conduct “unauthorized or warrantless” surveillance and “not because a warrant is based on faulty information.”

“Those who approved the applications to the FISA Court did not conduct the surveillance, so they are immune from civil liability,” Rahmani said, “and the lawsuit was properly dismissed.”

Friedrich, who Trump appointed to the federal bench in 2017, goes on to write in the opinion that while her interpretation of the text may seem odd, there is historical context behind the more than 40-year-old law that can help explain why “this gap in coverage seems evident now, but it likely was not in 1978.”

As Friedrich sees it, the only way Page and others like him can obtain relief under the current FISA law is by suing the FBI agents who actually conducted the electronic surveillance without probable cause, but only "if the agents act intentionally.”

Attorneys for Page did not respond to a request for comment regarding any potential plans to appeal or take the judge’s advice to sue the agents who surveilled him.

McQuade reiterated that such a claim would be hard to prove in court, since the FBI agents who conducted the surveillance “likely acted in good faith on the warrant that was signed by a judge.”

Her comments come as Page’s name is back in the headlines this week after a judge who greenlighted one of the faulty FISA applications used to surveil Page became a top “special master” candidate in Trump’s ongoing records dispute with the government.

Jonathan Turley, a criminal defense attorney and law professor at George Washington University, said the former president’s proposal to have semi-retired federal judge Raymond Dearie sift through thousands of files seized by the FBI from Trump’s home “lit up the Internet” due to Dearie’s connection with Page.

“Dearie not only has experience on intelligence matters and a past clearance but he has personal experience of the Justice Department misleading a court,” Turley said on Tuesday.

While the Department of Justice supports the former president’s special master candidate to review the records for personal items and privilege claims, the decision ultimately is up to U.S. District Judge Aileen Cannon, who Trump appointed to the federal bench in 2020.

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Categories / Government, Law, National, Politics

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