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Case number 23-5038.

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Carter Page, appellant, versus James V. Comey, et al.

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Mr. Scherr, for the appellant.

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Mr. Kelly, for the individual appellees.

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Mr. Schulz, for the government appellees.

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Mr. Scherr, good morning.

[00:00:15] Speaker 07:
Good morning, Your Honors.

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You've already had a long day.

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My name is Gene Scherr, and I'm pleased to be here representing Dr. Page, who is here in the audience with us.

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Whatever one may think of Dr. Page or the president-elect that he served,

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during the events at issue here.

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This case is controlled by a bedrock procedural principle, one that's grounded in fairness to all litigants, and that is that on a motion to dismiss, the allegations must be accepted as true along with any reasonable inferences from them.

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And this court has recently emphasized and re-emphasized that principle in a number of cases, including Simon versus Hungary and the Rodriguez case,

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And when that principle is fairly applied, it's clear that the complaint here adequately alleges that the defendants committed four distinct actionable offenses against Dr. Page, which I'll address in order.

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The first is his claim against defendants Stroke and Page and anyone who acted with them for unlawfully disclosing FISA-acquired information about him to the media in violation of 50 USC section 1809A2.

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Next is his claims against all the individual defendants for unlawfully using and disclosing FISA-acquired information in the renewal applications that they filed with the FIS.

[00:01:50] Speaker 04:
Mr. On the media theory, can you identify what information you're relying on, suggesting that Stroke or Lisa Page

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leaked information obtained from the FBI surveillance as opposed to the mere fact of surveillance.

[00:02:06] Speaker 07:
Yes, and I'm happy.

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I'm happy to describe that now or later.

[00:02:09] Speaker 04:
But just just putting a pin in it.

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Go ahead, because you were summarizing your theories.

[00:02:14] Speaker 07:
Yes.

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And and those are actually in the in the FISA applications, which we now have that have been partially declassified.

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But I'll get to that in a moment.

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Um,

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Third is Dr. Page's Patriot Act claim under Section 1806A against the government, which is also based on improper disclosure of FISA acquired information, both to the press and in the renewal applications that were filed with FISC.

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And finally are his claims against the individual defendants for engaging in unlawful surveillance in violation of Section 1809A.

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So with respect to the claim against Stroke and Page and anybody else who acted with them, that cause of action arises from his allegations that they unlawfully disclosed FISA-obtained information to the media, as I said, in violation of 1809A2.

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And if you look first at his complaint,

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which is where we have to start to see his allegations, counts two through four alleged generally that all the defendants, among other things, unlawfully disclosed information obtained pursuant to FISA warrants.

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But if you look back in the complaint in paragraphs 225 and 26, those are incorporated by reference in counts two through four, and they provide

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ample detail as to Stroke and Page's media leak strategy, which actually became famous in the press.

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They texted with each other and those texts became public about how they were going to leak information from the Carter Page investigation.

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And it turned out that some of that was, we believe there's good reason to believe some of that was from the information that was obtained through their earlier FISA applications.

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So it does say that they leaked existence of the warrants, the contents of the applications, and the results of the warrants.

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It seems to me that the statute only covers the results of the warrants.

[00:04:30] Speaker 07:
That's correct.

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And is there anything more concrete to substantiate that any of the reporting, any of the people who reported knew anything about the results?

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There's there's a little more information about that in paragraph 225 where where it says stroke and Lisa page collaborated to disclose protected information regarding doctor page the media and sought and obtained approval to do so for Mister McCabe and

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And obviously, if those allegations are true and truth has to be assumed at this stage, then they are sufficient to establish a violation of 1809A2 as to the execution of their strategy.

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Now, your next question may be, why do we think that's plausible?

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And what is there in the complaint that makes it more plausible than mere speculation?

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Well, it's important to remember that the complaint incorporates by reference

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mentions and incorporates by reference all of the applications that were filed with FISC, which were declassified in not until February of 2020.

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Okay?

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And we've provided those to the court in the addendum.

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And I would invite you, if you would like to, to turn to page 238 of the addendum, which contains some

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some information that makes the more general allegations of the complaint even more plausible.

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238 is from the, let's see, is from the second renewal application, which was submitted to the FISC, I believe on April 7th, 2017.

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Uh, and if you look at page 232 of that application, which is page 238 of the addendum, uh, you'll see about, uh, about halfway down the page that, um, this application says, although page publicly and in interviews with the FBI has denied meeting with Sechin and Divyekin during his July 2016 trip to Moscow, those were

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Those were apparently well-known Russian operatives, okay?

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So there's that discussion about his possible meetings with them, and then notice what comes immediately thereafter in this document.

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The rest of the information is blacked out, and it says, FISA acquired information subject to sequestration.

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giving rise to the inference that the additional information there, which was presented to the FISC, but not available to us yet, was obtained through surveillance under the prior warrants.

[00:07:26] Speaker 04:
Right, but to the extent you're addressing strokes and pages, leaks to the media, what is covered is

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That's next.

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By the acquired information, and that information is that, okay.

[00:07:39] Speaker 07:
Yes, that is absolutely next, Your Honor.

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I do just want to, before I go there, I'd like to point out one additional aspect of this application.

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If you scroll down to page 241 of the addendum, there's another little paragraph about Pages International Travel.

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And the first part of that is once again blocked out as FISA acquired information.

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And then it says the FBI believes that the RIS, that's the Russian Intelligence Services, and PAGE may be meeting face to face.

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And then it goes on and there's other information that's blocked out.

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Okay, so what does that have to do with the Washington Post article, which is the key event?

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Well,

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When you combine the timing of this application, which was filed four days before the Washington Post article came out on April 11th, and then when you compare what we've just seen in that application that's blocked out as being FISA acquired information, but we know something about it.

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You can assume that it has something to do with the Russian intelligence service and those two particular

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gentlemen that are that are listed there on page 238.

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And then if you and then if you then go to the to the post article.

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Which is.

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It said joint appendix 97.

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OK.

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The first page of it is on the prior page, Joint Appendix 96.

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No, I'm sorry, 95 is where the article begins.

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But if you look at page 97, at the top of the page it says, the government's application for the surveillance order targeting Page included a lengthy declaration that laid out investigators' basis for believing that Page was an agent of the Russian government.

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The FBI later admitted that that was just false.

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And the FISC scored them for it.

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But anyway, the article talks about the lengthy declaration that was part of the basis for this application that Page was an agent of the Russian government and knowingly engaged in clandestine intelligence activities on behalf of Moscow, officials said.

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Again, the FBI later admitted that was just false.

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And then here's the key paragraph, which the next paragraph, among other things, the application cited contacts that he had with Russian intelligence operatives in New York City in 2013.

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And officials said those contacts that earlier surfaced in a federal espionage case brought by the Justice Department against the intelligence operative and two other Russian agents.

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And then here's the key sentence.

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In addition, the application said Page had other contacts with Russian operatives that have not been publicly disclosed, leading again to the inference that what the reporter was talking about there, and the information that she had gotten from Stroke and or Page, was information about additional contacts with Russian operatives, which when you look at the application, it's pretty clear that information is coming

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from prior FISA surveillance under the prior warrants.

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So, you know, based on all of that, certainly the allegation is plausible.

[00:11:29] Speaker 04:
Why is it not, why is this notation in addendum 238 referencing the federal espionage case brought by the Justice Department previously?

[00:11:44] Speaker 07:
Why is it referencing it?

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Why is it not referencing that?

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Why do you connect the media's reference here to prior surveillance of Page as opposed to other prior SBNs?

[00:12:00] Speaker 07:
Well, because when you... It's an inference, Your Honor.

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We're not dealing in certainty here.

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All of this information is classified.

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That's what makes this case so difficult.

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So drawing inferences, as we must, if we go back in time a little earlier, if you look at the very first application that was filed for surveillance of Carter Page, there were no redactions of this kind.

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No redactions that said FISA acquired information subject to sequestration.

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The second application, which was the first renewal application, had 16 instances of redactions like this, suggesting that there were 16 bits of information that had been acquired in the first round of surveillance that were then presented to the FISC as a basis for continuing to investigate and continue to surveil him.

[00:13:04] Speaker 07:
In the second renewal application, which is the one we're looking at right here, if you count them up, there are a total of 22 references to FISA-acquired information, suggesting, again, the FBI was continuing to get more and more information as a result of its surveillance of Dr. Page, and the thing was kind of building on itself and snowballing.

[00:13:30] Speaker 04:
And I take it in your theory, it doesn't matter whether the information that's disclosed is putatively supportive of probable cause or not, because the application just requires updating on what was found, even if it's completely innocuous.

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Right.

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It would still be disclosure of information obtained through a FISA cap.

[00:13:56] Speaker 07:
Yeah, and so for purposes of this claim against stroke and page, the key fact is that they took this information that had been acquired as a result of their prior surveillance and they passed some of it on to the post reporter who wrote about those Russian contacts that had not been previously publicly disclosed.

[00:14:22] Speaker 07:
Again, we're not absolutely certain, but that's a fair inference from the allegations of the complaint and the warrants that are incorporated by reference in the complaint.

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Let's address how you get past sexual limitations issue.

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Yeah.

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You know, just with respect to having information

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Through the Washington Post article April 2017 in which page actually makes statements.

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Yeah.

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So, you know, therefore having some knowledge with respect to discovery rule, then you're responding also to the House committee and then you've also got the November proceeding.

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Right.

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All occurring in 2017.

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And so the discovery rule.

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essentially is indicating that, you know, what do you know when, and then do you have diligent efforts to find out more that leads you there?

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And of course the district court found essentially that yes, there was knowledge acquired at a certain point in time, but seemed to have gone to somewhat of a heightened standard of discovery as if there was something more, although not based in our case law,

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requiring that heightened.

[00:15:38] Speaker 07:
Well, I think it's important to remember that there are multiple different claims floating around here.

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One potential claim by Dr. Page would be against the FBI for the original surveillance.

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And certainly, the Washington Post article gave him notice that he was injured from the original surveillance.

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But what's central to this particular legal theory,

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against stroke and page is that it doesn't rely on the original surveillance.

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What it relies upon is they're providing FISA-acquired information to the press in April of 2017, information that they had probably just barely acquired or they had just barely listed that in their second renewal application to the FISC in any event.

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There was no way, if you look at the historical record, there was no way that Dr. Page could have known about this kind of misuse of FISA-acquired information until the Horowitz report.

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Because the Horowitz report, through its redactions,

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in the public version, it made pretty clear that there had been some fruits of FISA surveillance that had been used.

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So that was in December of 2019.

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And then the next key event was the declassification

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of the redacted versions of these warrant applications.

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They kind of came out seriatim during February of 2020.

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And so what I just showed you earlier could not have been known to Dr. Page until February of 2020.

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And then, of course, it was later

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that the FISC itself revealed that the Justice Department, the FBI had admitted that the whole thing was fraudulent from the beginning.

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I mean, they admitted that the third and fourth applications did not adequately provide probable cause, but logically that took the legs out of the whole enterprise.

[00:18:04] Speaker 04:
Can you explain your view of why only three and four and why that takes the legs out?

[00:18:10] Speaker 07:
Because they don't say that one and two are... Again, if you look at the development of these warrant applications, if the third application, which was the second renewal application,

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That application had a lot more information in it than the prior applications.

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So if that third application, the second renewal application, did not provide probable cause to surveil Carter Page, then a fortiori, the earlier ones could not.

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At least that's a fair inference because it wasn't as though the prior applications had more information than the later ones.

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Because what was going on is that the FBI was, you know, the FBI was just periodically admitting additional misdoing.

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And it was because of their admission with respect to their misdeeds as to the third application that they said there's no probable cause here.

[00:19:18] Speaker 07:
But again, logically, if that's true of the third application, it has to be true of the first and second ones.

[00:19:24] Speaker 05:
Well, didn't Judge Boasberg, let's see, he assumed that the same thing applied to the first and second applications.

[00:19:36] Speaker 00:
Yes.

[00:19:36] Speaker 05:
The third and fourth.

[00:19:37] Speaker 05:
Yes.

[00:19:38] Speaker 05:
That is, that there was no factual or insufficient factual support for probable cause.

[00:19:44] Speaker 07:
That's exactly right.

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And that was in June of 2020 when he said that.

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He made that very point that I just tried to make.

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Given that they're admitting that the third and fourth didn't provide probable cause, that necessarily means that the first and second didn't.

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In fact, he said, I gave the FBI an opportunity to explain to me why they think the first and second might have provided probable cause, and they didn't.

[00:20:09] Speaker 07:
They didn't even make an argument.

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They never admitted that the first and second didn't provide probable cause.

[00:20:16] Speaker 05:
But they did not differentiate.

[00:20:18] Speaker 07:
But they did not even attempt to defend those once they had admitted as to the third and fourth.

[00:20:23] Speaker 05:
So they didn't differentiate the one and two.

[00:20:26] Speaker 05:
That's what Judge Boas said.

[00:20:29] Speaker 07:
I think they did differentiate.

[00:20:31] Speaker 07:
Well, I think they specifically said, we acknowledge that the third and fourth did not provide probable cause for surveillance.

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And they were silent as to the others.

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Judge Boasberg said, I'm going to give you a chance to justify those, and they didn't.

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So given the requirements applicable at the pleading stage,

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relatively relaxed requirements.

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This claim was not overly speculative or conclusory as the district court concluded.

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It was in fact more than sufficient to get over the bar of a motion dismissed and it was therefore error to dismiss that claim.

[00:21:11] Speaker 04:
When we look at Hobson versus Wilson.

[00:21:15] Speaker 07:
Yes.

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Where

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There was unjustified surveillance of individuals who had read news articles reporting the FBI's unconstitutional COINTELPRO operations.

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And the plaintiffs also knew they were FBI targets.

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We held there that the statute of limitations ran, that the secrecy of the operations didn't tell them because there was some news

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putting the plaintiffs on notice.

[00:21:51] Speaker 04:
Why is that not also true here, where the Washington Post article quotes Dr. Page saying, this confirms all my suspicions about unjustified, politically motivated government surveillance.

[00:22:08] Speaker 04:
And in fact, he himself compares it effectively to the COINTELPRO unjustified.

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surveillance.

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And in his letter to the congressional leaders, he says, my FISA warrant is filled with a potpourri of falsehoods fabricated from the outset.

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And as the defendants say, that is his theory in the lawsuit.

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And he was stating it publicly back in 2017.

[00:22:43] Speaker 07:
Well, I think this gets back to the earlier discussion with Judge Child about the different kinds of claims that are at play here.

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Certainly, the other side has a much better statute of limitations argument to the extent that to the extent that Paige is challenging the original

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surveillance warrant and the surveillance that was conducted pursuant to that warrant.

[00:23:08] Speaker 07:
But the Hobson case, and I think the key language, if I can find it, is that the court said the plaintiff must know facts giving notice of the particular cause of action at issue.

[00:23:25] Speaker 07:
Okay, so if we were talking here

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about a claim for unlawful surveillance at the outset under the first warrant.

[00:23:35] Speaker 07:
Mr. Page's statements and the Washington Post article and all those sorts of things, they would give the defendants a stronger statute of limitations.

[00:23:46] Speaker 07:
defense.

[00:23:47] Speaker 07:
And again, it is a defense, right?

[00:23:49] Speaker 07:
They haven't even pleaded it yet.

[00:23:51] Speaker 07:
They haven't even answered.

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So we don't even know for sure that they're going to invoke that defense.

[00:23:56] Speaker 07:
Maybe they have tactical reasons not to.

[00:23:58] Speaker 07:
Probably not.

[00:23:59] Speaker 04:
Which defense?

[00:24:00] Speaker 07:
A statute of limitations defense.

[00:24:03] Speaker 04:
They're allowed to raise it by motion.

[00:24:05] Speaker 07:
If they think that it's established in the complaint itself, which it's not.

[00:24:12] Speaker 07:
But if we're just talking about the facts, the claim that I'm talking about right now with respect to stroke and page is not a claim for challenging the original surveillance under the original warrant or even the surveillance under the second warrant.

[00:24:32] Speaker 07:
This claim that we're talking about right now

[00:24:35] Speaker 07:
is a claim that challenges their disclosure of FISA acquired information in violation of 1809.

[00:24:44] Speaker 07:
I think it's a two is the.

[00:24:49] Speaker 07:
Prevision a one is.

[00:24:53] Speaker 07:
surveillance itself.

[00:24:54] Speaker 07:
A2 is the disclosure of the fruits of the surveillance.

[00:24:58] Speaker 07:
And that's the claim that we're talking about now.

[00:25:00] Speaker 07:
And for reasons that we've discussed, there was no way that Dr. Page could have known that they were actually disclosing the fruits of the Pfizer-acquired, of the Pfizer surveillance to which he was subject as opposed to other things that were not

[00:25:21] Speaker 07:
FISA acquired surveillance, things like the Steele dossier and a host of other things that people were citing during this period when they were trying to allege a connection between the president-elect for whom he worked and Russia.

[00:25:39] Speaker 07:
So I hope that answers the question with regard to the statute of limitations on this particular claim.

[00:25:45] Speaker 07:
And obviously, you have to look claim by claim.

[00:25:47] Speaker 07:
But again, I think the key language in Hobson

[00:25:50] Speaker 07:
is the statement that says the plaintiffs must know facts giving notice of the particular cause of action at issue and not just any cause of action.

[00:25:59] Speaker 07:
And the particular cause of action is the A2 claim for unlawful disclosure of the fruits of FISA surveillance.

[00:26:11] Speaker 04:
And your point, just to close the loop, is that it's the release of the redacted applications that closes the circle?

[00:26:21] Speaker 07:
That is what I think would put him on notice, that he had that kind of a client.

[00:26:27] Speaker 07:
Yes.

[00:26:31] Speaker 07:
I don't even think the Horowitz report quite gets there.

[00:26:35] Speaker 07:
The Horowitz report kind of suggested that there was some fruits of the FISA surveillance that was used, but it wasn't until those actual applications were released so that you could see how the FBI was using FISA-acquired information to buttress certain allegations against him.

[00:26:55] Speaker 07:
I mean, they were trying to smear him, right?

[00:26:57] Speaker 06:
But if you go back to, again, May 2017, that's the point at which he's invented

[00:27:02] Speaker 06:
dealing with House Intelligence Committee and he's mentioning felonies related to leaking and his identity.

[00:27:10] Speaker 06:
Right.

[00:27:11] Speaker 06:
Then you go on to November 2017 and he's testifying about information that was collected against him illegally.

[00:27:21] Speaker 06:
Right, but he doesn't know.

[00:27:22] Speaker 06:
Everything at the time of filing.

[00:27:25] Speaker 07:
Well again, the claim we're talking about is a claim for unlawful disclosure.

[00:27:31] Speaker 07:
of the information that's been collected.

[00:27:34] Speaker 07:
The stuff that he talked about in 2017, yeah, those might well have given rise to different kinds of claims.

[00:27:43] Speaker 07:
I mean, there were a whole series of violations that occurred here.

[00:27:46] Speaker 07:
And we're focused on the ones that we needed to limit our appellate issues.

[00:27:54] Speaker 07:
And we're focused on the ones that we think are absolutely 100% defense

[00:27:59] Speaker 04:
So, but that theory only applies to the disclosure claim with respect to the media leaks because the disclosure claims with respect to the renewal applications and briefing of other people within the bureau, those are.

[00:28:22] Speaker 04:
That's a separate.

[00:28:23] Speaker 04:
If you know there's unlawful surveillance based on

[00:28:30] Speaker 04:
you know, made up information, you know those things are going.

[00:28:35] Speaker 07:
Well, that, and that's the second, that's the second cause of action that I wanted to talk about, is that specific unlawful use claim.

[00:28:46] Speaker 04:
And again, that- I think of it as sort of a pair.

[00:28:49] Speaker 04:
The renewal application requires that you report on what you found, so that's a use.

[00:28:58] Speaker 04:
or I guess a disclosure, and then briefing within the Bureau, I take also to be a claim that he made and the personnel involved may be slightly different.

[00:29:09] Speaker 07:
Yeah, and they involve different unlawful behavior, right?

[00:29:15] Speaker 07:
In the case of the Page and Stroke claim or legal theory, the unlawful behavior is leaking the information to the press without authorization.

[00:29:26] Speaker 07:
With respect to the claim about using FISA-acquired information improperly and seeking additional warrants, the unlawful behavior is in using that FISA-acquired information to create the illusion that the FBI is entitled to continue surveilling him.

[00:29:55] Speaker 07:
Even though, as we know from the FBI's subsequent admissions and from Judge Bosberg's pointing out that they never ultimately tried to defend the first and second applications at all, we know that that surveillance was unlawful as well because it was not supported by probable cause and the people who wrote and supervised those applications

[00:30:20] Speaker 07:
were taking FISA-derived information, as we saw in the example, and there are a couple of other examples that I'll be happy to show you.

[00:30:27] Speaker 07:
They were taking FISA-derived information to create the illusion for the FISC that they actually had probable cause to continue surveilling Dr. Page.

[00:30:37] Speaker 04:
I mean, Page himself pleads that they turned up zero.

[00:30:42] Speaker 04:
That was in any way tending to being compitory.

[00:30:48] Speaker 07:
Well, that's not exactly what he said.

[00:30:50] Speaker 07:
He said that they did not turn up evidence that he was an agent of a foreign power.

[00:31:00] Speaker 07:
And in the example that we just saw... Isn't that the relevant question?

[00:31:05] Speaker 07:
Yeah.

[00:31:06] Speaker 07:
Yes, it is.

[00:31:07] Speaker 07:
But in the example that we just saw,

[00:31:11] Speaker 07:
The FISA-acquired information that they used to smear him was not showing that he was an agent of Russia.

[00:31:18] Speaker 07:
It was simply showing that he had contacts with certain people.

[00:31:29] Speaker 07:
He did say they never came up with evidence that I was an agent of Russia.

[00:31:34] Speaker 07:
And that's true, and that remains true.

[00:31:36] Speaker 07:
But they came up with a lot of evidence that they used to smear him as having excessive contacts with people in Russia and people connected to the government in Russia.

[00:31:48] Speaker 07:
And those are two different things.

[00:31:52] Speaker 07:
So again, if you look at the allegations in the complaint, the complaint, I think, quite clearly, if you parse through the different provisions, quite clearly makes the point that he was challenging the FBI's use of that FISA acquired information.

[00:32:12] Speaker 07:
He says, and if you look again, it counts two through four, the complaint says that having obtained communications through the four

[00:32:20] Speaker 07:
through the earlier FISA warrants, the defendants quote, used and disclosed those communications to obtain the subsequent ones.

[00:32:27] Speaker 07:
In other words, to create the illusion that they had a probable cause to keep surveilling him.

[00:32:35] Speaker 07:
And then paragraphs 229 and 30 describe all of that in more detail.

[00:32:41] Speaker 07:
And again, I would just invite us to look at a couple of other examples if I can get my computer to turn on.

[00:32:48] Speaker 06:
Well, I can testify that there was a ton of information that was used against him illegally and collected with respect to evidence in that FISA matter.

[00:33:00] Speaker 06:
And so I know you keep distinguishing.

[00:33:03] Speaker 06:
We have an initial application.

[00:33:05] Speaker 06:
We're using the information collected from the initial application going over into the other ones.

[00:33:09] Speaker 06:
I'm just not quite sure that I'm catching that distinction.

[00:33:13] Speaker 06:
If he is outwardly and blatantly testifying that I know they have all this information, it's false, they're using it on the false pretenses, they're identifying me specifically, they've also leaked it at these points in time in 2017, then what else does he need to go forward with his complaint other than amend as you acquire more information?

[00:33:37] Speaker 07:
And Your Honor, I don't want to be argumentative, but just if I could contest the premise a little bit.

[00:33:45] Speaker 07:
I don't think any of those earlier statements that you mentioned actually said they have unlawfully used the fruits of their FISA surveillance against me.

[00:33:58] Speaker 07:
There was a lot of information that they used improperly, beginning with the Steele dossier, which was not FISA acquired information.

[00:34:07] Speaker 07:
It was completely independent of FISA.

[00:34:10] Speaker 07:
And if you look at his statements, I think a fair reading of those is that those were the sorts of things he was talking about.

[00:34:19] Speaker 07:
I really don't think you could have... Again, to use the language of the...

[00:34:27] Speaker 07:
of the Hobson case, I don't think there was any way that he could have known of the exact illegality that he later complained of in the two claims that we're making now.

[00:34:42] Speaker 04:
I wonder if you would address the claim of engaging in electronic surveillance, the claim that the district court

[00:34:53] Speaker 04:
held applies only to the people who are sort of directly involved in the mechanics of the surveillance and what you think that actually covers.

[00:35:05] Speaker 07:
Well, I think the evident error in the district court's analysis of that issue can be illustrated by a simple example.

[00:35:17] Speaker 07:
You know, suppose that you have a police sergeant

[00:35:21] Speaker 07:
sitting next to a young corporal.

[00:35:24] Speaker 07:
And the department has decided that they're going to wiretap somebody.

[00:35:30] Speaker 07:
The corporal is the guy who has the headphones on and is actually listening to the conversation.

[00:35:38] Speaker 07:
The sergeant is sitting next to him, supervising his activities, and by the way, asking him periodically, what did you hear?

[00:35:45] Speaker 07:
What did you hear?

[00:35:49] Speaker 07:
And under the district court's analysis of engaging in, it's only the corporal that has the headphones on that's actually engaging in surveillance, not the principal, that is the sergeant, who's directing him and overseeing him and getting periodic reports and that kind of thing.

[00:36:11] Speaker 07:
And that is an unrealistically

[00:36:15] Speaker 07:
a textual reading of that term engaging him.

[00:36:21] Speaker 07:
You know, as we did.

[00:36:23] Speaker 04:
It's not clear where exactly she would draw the line because she wasn't faced with that, you know, close of a case.

[00:36:30] Speaker 04:
But if there is sort of a category of authorization and then a category of execution, I think she's saying, you know, engaging in just language supports reading it.

[00:36:43] Speaker 04:
And in the context of the statute where there's other references to preparation just supports reading to apply to some

[00:36:50] Speaker 04:
more carrying out kind of conduct.

[00:36:53] Speaker 07:
Right.

[00:36:54] Speaker 07:
Well, with respect to the district court, that's a red herring here because we're not challenging under this particular provision, 1809A1, which deals with engaging in surveillance, we're not challenging, we're not using that to challenge the initial applications.

[00:37:19] Speaker 07:
Okay.

[00:37:20] Speaker 07:
That's a different claim.

[00:37:21] Speaker 07:
That's an A2 claim that we've been discussing just a minute ago.

[00:37:25] Speaker 07:
An unlawful use of FISA acquired information.

[00:37:29] Speaker 04:
Okay.

[00:37:29] Speaker 04:
That doesn't apply to the initial applications.

[00:37:31] Speaker 04:
That only applies to the renewal applications.

[00:37:33] Speaker 07:
Correct.

[00:37:34] Speaker 04:
Okay.

[00:37:34] Speaker 04:
Correct.

[00:37:35] Speaker 04:
So what are you using the engaging in to get at?

[00:37:43] Speaker 07:
Again, the A one claim is a separate claim and and and we believe and and the complaint alleges and we've and we've contended all along that especially in the

[00:37:56] Speaker 07:
acting pursuant to the renewal applications.

[00:38:00] Speaker 07:
The FBI and the various individual defendants who were involved in that, they were engaged in unlawful surveillance, not just the use of surveillance, but they were engaged in unlawful surveillance because they knew that there was never a probable cause to surveil Carter Page at all.

[00:38:23] Speaker 07:
And

[00:38:25] Speaker 07:
and the additional surveillance was merely an effort to create a smoke screen to make it appear that they had probable cause to surveil him.

[00:38:38] Speaker 07:
That's the reason the engaging in surveillance was unlawful.

[00:38:45] Speaker 07:
For that particular claim, it wasn't the preparation

[00:38:48] Speaker 07:
of the warrant applications.

[00:38:50] Speaker 07:
That's an A2 violation because they used the fruits of the earlier surveillance.

[00:39:00] Speaker 07:
What we're talking about now is the A1 violation for actually engaging in surveillance.

[00:39:06] Speaker 07:
And again, we believe and the complaint alleges that that was unlawful because it was a charade.

[00:39:13] Speaker 07:
The whole thing was a charade.

[00:39:16] Speaker 07:
They knew from the outset that there was never a basis to surveil Carter Page.

[00:39:22] Speaker 07:
And everything they did from then on until they finally came clean, years later, everything they did from then on was just to try to make it look like there was some validity to what they were doing.

[00:39:35] Speaker 07:
They were trying to cover their tracks.

[00:39:37] Speaker 07:
And that's why the surveillance was unlawful.

[00:39:40] Speaker 04:
So what's your theory that the engaging end

[00:39:44] Speaker 04:
claim is not time barred, because that more is what Dr. Page had stated that he thought was going on when he was talking to the post, when he was interacting with Congress.

[00:40:01] Speaker 07:
Certainly, the statute of limitations argument as to the initial surveillance is, the other side has a stronger argument that that's time barred.

[00:40:14] Speaker 07:
You know, as you go, you know, as you go forward in time, the statute of limitations argument becomes less strong because there were, you know, there were additional things that happened to put Dr. Page on notice that, yeah, he was really right that this whole thing was a charade from the outset.

[00:40:37] Speaker 04:
And you're specifically referring to the horrors report and the release of the redacted.

[00:40:43] Speaker 07:
And the FISC statements in June of 2020 and all those sorts of things.

[00:40:50] Speaker 07:
But again, it's important not to confuse those two claims when it comes to the statute of limitations because the statute of limitations argument as to the engaging in surveillance is very different from the statute of limitations argument as to misuse of the FISA acquired information.

[00:41:15] Speaker 05:
All right, you need to wind it up.

[00:41:17] Speaker 07:
Okay.

[00:41:19] Speaker 07:
Well, let me just conclude by saying that the three provisions on which Dr. Page has based his claims are essential to the ability of ordinary Americans of all political persuasions to hold their government accountable for the kind of malfeasance that's plausibly alleged in Dr. Page's complaint and the district court's improper dismissal should be reversed.

[00:41:43] Speaker 05:
Thank you.

[00:41:43] Speaker 05:
We'll give you a couple minutes and reply.

[00:41:45] Speaker 07:
Thank you.

[00:41:46] Speaker 05:
All right, Mr. Kelly.

[00:41:54] Speaker 05:
Mr. Kelly.

[00:42:06] Speaker 03:
May it please the court.

[00:42:07] Speaker 03:
My name is David Kelly.

[00:42:09] Speaker 05:
Before you begin.

[00:42:10] Speaker 03:
Yes, ma'am.

[00:42:11] Speaker 05:
I just want to get

[00:42:13] Speaker 05:
A couple of things clear.

[00:42:15] Speaker 05:
First of all, are we allowed to know who actually conducts the surveillance?

[00:42:20] Speaker 05:
That is, are they contractors?

[00:42:22] Speaker 05:
Are they FBI agents?

[00:42:24] Speaker 05:
Or are they FBI non-agents?

[00:42:27] Speaker 03:
I don't know the answer to that, Your Honor.

[00:42:28] Speaker 03:
I would only have to speculate on that.

[00:42:31] Speaker 05:
All right.

[00:42:31] Speaker 05:
And then do we know, are we allowed to know what was actually surveilled?

[00:42:39] Speaker 03:
Again, your honor, I'm not sure what the fruits of the of the surveillance actually were.

[00:42:44] Speaker 03:
I think we'd have to go outside the record here to determine what that what that was.

[00:42:49] Speaker 05:
What was surveilled?

[00:42:50] Speaker 05:
In other words, my phone, his laptop.

[00:42:54] Speaker 05:
That's what I'm asking about.

[00:42:55] Speaker 03:
Yes, your honor.

[00:42:55] Speaker 03:
Well, I think it was his phone and his laptop, but I have to confirm that.

[00:43:00] Speaker 04:
And is this, I mean, this is just a general question.

[00:43:03] Speaker 04:
You know, when we watch the movies, we see someone sitting in a van with the headphones on as as Mr. Shear was was referencing.

[00:43:13] Speaker 04:
Is that is there still some mechanical thing or I or is it like you contact Verizon?

[00:43:21] Speaker 03:
Well, there's a variety of different ways, depending on the device, Your Honor.

[00:43:24] Speaker 03:
But what's important here is that there are no allegations that any of these defendants were involved in any of that process at all.

[00:43:31] Speaker 04:
I guess part of understanding the reasonableness or not of the interpretation is whether there's any there there.

[00:43:38] Speaker 04:
if you read it the way our colleague on the district court did.

[00:43:42] Speaker 04:
In other words, if all we're doing is asking Verizon to give us, to keep track of and give us some information, give the Bureau some information, then the notion that the person who's conducting is gonna be responsible is quite a different object of legislative attention than the notion that somebody is going into someone's house and putting a bug somewhere

[00:44:06] Speaker 03:
It's a fair question and I will I think I defer to my friend in the government who is going to be taking the podium after me on that on that.

[00:44:14] Speaker 03:
But and I think it varies with the type of technology.

[00:44:17] Speaker 03:
But yes, from my experience in government some time ago, it still is the case where you actually there are people who are actually involved in listening.

[00:44:28] Speaker 03:
in one form or another.

[00:44:29] Speaker 03:
It's not Verizon who's doing the listening.

[00:44:32] Speaker 03:
It's agents of the government, whether they be agents or contractors.

[00:44:36] Speaker 03:
There's agents of the government who are actually listening and actually conducting their surveillance here.

[00:44:43] Speaker 03:
And what we're talking about in this particular case, and by the way, I'm here to represent the defendant appellee, James Comey.

[00:44:51] Speaker 03:
I'm also here to argue on behalf of each of the individual defendants.

[00:44:55] Speaker 03:
But in this particular case, there are no allegations that any of them did anything apart from being involved in the process of applying for the surveillance and having nothing to do with the actual surveillance.

[00:45:11] Speaker 03:
And with regard to that, it's also important to note that there are very distinct levels of participation in that process, some more than others, but in any event, none approaching anything relating to

[00:45:25] Speaker 03:
involving surveillance.

[00:45:28] Speaker 05:
Well, let me ask you about, do you have the definitions under 1801 in front of you?

[00:45:35] Speaker 03:
I do not, your honor, but I know it pretty well.

[00:45:38] Speaker 05:
Can you get it?

[00:45:40] Speaker 05:
I'm asking about a clause that nobody has interpreted in

[00:45:47] Speaker 05:
the definition of electronic surveillance.

[00:45:50] Speaker 03:
And that is?

[00:45:51] Speaker 05:
And that clause is if the contents are acquired by intentionally targeting that United States person.

[00:45:59] Speaker 05:
And I'm asking you if it's a fair reading to say that more than one person targeted Carter Page.

[00:46:11] Speaker 03:
I think it's fair to say that the government collectively targeted Carter Page because of the belief that it was an agent of a foreign government, as that is defined under FISA.

[00:46:24] Speaker 03:
And I think that was fleshed out somewhat in the Horowitz report.

[00:46:29] Speaker 03:
The fact that they had a basis to conduct that investigation, the question was whether or not they had sufficient probable cause to get the FISA warrant.

[00:46:39] Speaker 05:
Let me ask you this.

[00:46:42] Speaker 05:
Did defendant Comey not intentionally target Carter Page?

[00:46:48] Speaker 05:
Why did McCain not intentionally target?

[00:46:55] Speaker 05:
In other words, one of the two of them signed

[00:46:58] Speaker 05:
They are authorized the application signs application to get them.

[00:47:03] Speaker 03:
So to be clear, to be clear honor the certification provided by the director of the FBI doesn't have anything to do with the underlying facts, but certifying the purpose

[00:47:14] Speaker 03:
of the application, that it complies with the purposes of FISA for investigating.

[00:47:22] Speaker 05:
It's directing the targeting of Carter Page, or it's approving the targeting of Carter Page.

[00:47:30] Speaker 03:
I don't think it's fair to say in this context or in most contexts that an individual targeted another individual.

[00:47:38] Speaker 03:
This was a collection of information that was gathered by the agency

[00:47:42] Speaker 03:
and then it was authorized for the purposes of carrying out the purpose of FISA.

[00:47:48] Speaker 03:
And I don't think that you can say that there was an individual amongst these defendants or amongst any group of individuals who targeted this plaintiff.

[00:48:00] Speaker 03:
It would be a collective.

[00:48:01] Speaker 04:
It depends on how you're reading targeted.

[00:48:03] Speaker 04:
I mean, targeted is, it could be seen as a much more just a, almost a physiological explanation of, you know, it's one thing if you're at a party and you overhear something, you know, you're an agent and you have a hearing aid and you pick up things that, you know, someone around a corner might not think you would ordinarily be able to pick up.

[00:48:25] Speaker 04:
And so you're using electronic

[00:48:28] Speaker 04:
and you hear them, but you weren't intentionally targeting.

[00:48:32] Speaker 04:
You picked it up by accident.

[00:48:33] Speaker 04:
I mean, that's one way of understanding it, as opposed to like a bias-related.

[00:48:39] Speaker 04:
And here it seems indisputable that they were intentionally targeting him.

[00:48:43] Speaker 04:
Putting the surveillance in place is intentionally targeting this individual.

[00:48:47] Speaker 03:
So I think the answer to your question is found in the background of the crossfire hurricane investigation, which first came to the attention of the FBI

[00:48:56] Speaker 03:
through a source through the Australian consulate who had spoken to somebody involved in the Trump campaign who identified the fact that there may be connections to the Russian government.

[00:49:08] Speaker 03:
And from there, the investigation began as to who that might be.

[00:49:12] Speaker 03:
So I think that, again, I wouldn't say that it's targeting so much as the fruits of a collective investigation within the FBI that result in the identification of potential targets, if you will, of electronic surveillance.

[00:49:27] Speaker 03:
And frankly, from the Horowitz report, the Horowitz report doesn't fault the government for having conducted that and reached that conclusion, the fault laid within the process that they sought or which they sought the electronic surveillance.

[00:49:44] Speaker 05:
Well, I looked for a definition of target.

[00:49:48] Speaker 05:
It's not in 1801, but it is mentioned in

[00:49:52] Speaker 05:
the applications, and if you look at every application, it cites to, I think it's 1823 or something, that the application targets whoever is going to be surveilled.

[00:50:08] Speaker 05:
But another question I have for you, and this is why I wish you had the definitions in front of you, is 1801.

[00:50:17] Speaker 05:
K, the definition of an aggrieved person.

[00:50:20] Speaker 05:
And that says it's not just the person who is the target of an electronic surveillance, but any other person whose communications or activities were subject to electronic surveillance.

[00:50:34] Speaker 05:
And yet, 1810, I believe, limits it just to the targeted mission.

[00:50:46] Speaker 05:
An aggrieved person.

[00:50:49] Speaker 03:
Your Honor, I don't shy away from the fact that... Let me just finish.

[00:50:53] Speaker 05:
In 1810, an aggrieved person who has been subjected to an electronic surveillance, that's not just the target.

[00:51:01] Speaker 05:
No, it's not.

[00:51:02] Speaker 05:
That's, you know, if I'm under surveillance and I'm talking to my sister, she's subject to... Absolutely.

[00:51:08] Speaker 05:
Okay, she's an aggrieved person.

[00:51:11] Speaker 05:
All right.

[00:51:12] Speaker 03:
I also would say I don't mean to shy away from the word targeting.

[00:51:15] Speaker 03:
What I mean to move away from is the fact that there was any one individual targeting somebody because I think there's negative connotations with that as opposed to somebody who, because of factual information that was developed, becomes the target of an investigation or the target of electronic surveillance.

[00:51:33] Speaker 04:
Let me ask you about the statute of limitations.

[00:51:37] Speaker 04:
You cite Rotella versus Wood for the rule that the approval clock starts to run when the plaintiff discovers the injury, hear the surveillance, not the other elements of the claim.

[00:51:49] Speaker 04:
And I mean, frankly, this isn't your fault.

[00:51:51] Speaker 04:
But I find the different precedents here really hard to sort of synthesize.

[00:51:57] Speaker 04:
So that is a rule.

[00:51:59] Speaker 04:
And it seems like under that rule,

[00:52:03] Speaker 04:
possible that the pleadings place the injury back in 2017, the awareness of the injury, the discovery of the injury back in 2017.

[00:52:15] Speaker 04:
But then Rotella specifies that claims that involve fraud have a different accrual rule.

[00:52:22] Speaker 03:
So we're not talking about what we're talking about.

[00:52:24] Speaker 03:
The injury here is not fraud.

[00:52:25] Speaker 03:
The injury here is unauthorized surveillance.

[00:52:28] Speaker 04:
But I mean, that's where the Richard versus Molesky case comes in.

[00:52:32] Speaker 04:
There wasn't a fraud.

[00:52:34] Speaker 04:
There was a false allegation about somebody.

[00:52:39] Speaker 04:
I mean, there's fraud in the same sense that here there's false or incomplete or wrongful picture put forward.

[00:52:46] Speaker 04:
And the wrongfulness of it was not accessible to the plaintiff at the time.

[00:52:51] Speaker 03:
Well, it is interesting here.

[00:52:53] Speaker 03:
I think that the facts are closer to Hobson.

[00:52:55] Speaker 03:
And I think there's also great analogues being drawn from other Title III cases.

[00:52:59] Speaker 03:
But what's important here, Judge, is the fact that he basically laid out in his response, his public response to the Washington Post, his whole outline for this complaint.

[00:53:11] Speaker 03:
He basically said everything there that was wrong and how he was wrong in that response.

[00:53:19] Speaker 04:
And under Hobson... Well, he knew

[00:53:21] Speaker 04:
all along that he was not culpable.

[00:53:26] Speaker 04:
But to know that is not inconsistent with thinking, well, law enforcement may have probable cause.

[00:53:34] Speaker 04:
It's not.

[00:53:35] Speaker 00:
But that's not what he said.

[00:53:36] Speaker 04:
But they may have that.

[00:53:37] Speaker 04:
And so the question is, why don't we assume that that is the reason

[00:53:43] Speaker 04:
why Dr. Page didn't sue earlier.

[00:53:46] Speaker 04:
He's like, I know this is meaningless, unjustified.

[00:53:49] Speaker 04:
But what could he have pleaded as of 2017 about the defendant's knowledge of the insufficiency of the warrant information?

[00:54:06] Speaker 03:
Because, I mean, if you look at Hobson,

[00:54:10] Speaker 03:
This court has found that you don't need to know all the wrongdoers and you don't need to know all the wrongdoing.

[00:54:16] Speaker 03:
And what this plaintiff knew was and what he said he knew was that the basis for the wire was the Steele dossier that has absolutely no basis in fact.

[00:54:28] Speaker 03:
So he had a very good grounds there to do exactly what he later pleaded.

[00:54:33] Speaker 03:
I mean, if you look at what he later pleaded, it doesn't really deviate from what he said back in April of 2017.

[00:54:40] Speaker 03:
So that's why we think it's on all four.

[00:54:41] Speaker 03:
And in any event, you're right.

[00:54:42] Speaker 03:
I do think there's another important point with regard to this, too, is what we say in many of the Title III cases.

[00:54:59] Speaker 03:
I had very much of a similar reaction, like you don't learn an awful lot in those cases.

[00:55:07] Speaker 03:
For instance, in one case that we cite in our brief, the plaintiff sued one person.

[00:55:14] Speaker 03:
But it later turned out that the wrongdoer was a private investigator.

[00:55:18] Speaker 03:
And she waited for everything to be released.

[00:55:21] Speaker 03:
And they said that you could have, even though you thought it was somebody else, you had time to sue.

[00:55:26] Speaker 03:
So there was plenty of information that he had here that was available to him that he could have filed and then sought discovery and then got all the information that he needed.

[00:55:37] Speaker 05:
Could he have sued on April 11th of 2017 when the Washington Post?

[00:55:42] Speaker 03:
I think that, I think he could have sued right at that point.

[00:55:46] Speaker 03:
Yes, your honor.

[00:55:48] Speaker 03:
Yes.

[00:55:49] Speaker 03:
Could he have sued in April of 2000?

[00:55:50] Speaker 03:
Who?

[00:55:51] Speaker 03:
Oh, who could he have sued?

[00:55:53] Speaker 03:
Well, first off, he could have started off with the Department of Justice and the FBI.

[00:55:57] Speaker 03:
And then subsequently with the discovery, he could have found out more about who it was.

[00:56:01] Speaker 03:
And by the way, he also could have gone ahead and sued the FBI director because under FISA, that's a person who has to authorize their surveillance by statute.

[00:56:13] Speaker 03:
Now, the other thing if I'm,

[00:56:16] Speaker 04:
Can you respond in terms of the time bar to the separate claims that Mr. Scherr really focused on, which were the use or disclose claims?

[00:56:25] Speaker 04:
And he's made the more nuanced argument that Dr. Page did not have reason to believe that the information that was

[00:56:40] Speaker 04:
obtained through the initial warrant and then the renewals was used in the later ones or disclosed in meetings.

[00:56:49] Speaker 03:
I'll put aside for a moment, Your Honor, that I don't think there's a violation here of use or disclose that was adequately pleaded.

[00:56:55] Speaker 04:
You're referring to the ground the district court used to dismiss?

[00:56:59] Speaker 03:
Big pardon?

[00:57:00] Speaker 04:
You're referring to the grounds on which the district court dismissed?

[00:57:03] Speaker 03:
Yes.

[00:57:04] Speaker 04:
I'm bracketing that, assuming that it has been, it would be great to hear your response to that.

[00:57:10] Speaker 03:
I don't think, with regard to the statute of limitations issue on the use of disclosed, I mean, first off, it sounded to me in his argument that he's essentially conceding with regard to the first application that is

[00:57:20] Speaker 03:
that the discovery rule of April 2017 would have begun the clock running.

[00:57:25] Speaker 03:
But with regard to the use or disclosure, I think that he could have also, those are allegations that one, he could reasonably have known about because of the fact that there obviously had been a leak to the Washington Post or one could have assumed as much that the information would have been, had to be disclosed, reasonable inference because Washington Post is talking about a FISA.

[00:57:46] Speaker 03:
and that any allegations with regard to who might have done it or what exactly might have been disclosed could have come later after he had the opportunity to conduct discovery.

[00:58:01] Speaker 04:
And I'm sorry.

[00:58:02] Speaker 04:
How about the use or disclose in the, I guess it is the media one is the, so the use of in the renewal applications of the prior

[00:58:16] Speaker 04:
information that you can see how, not in the initial application, but in the later ones, how there are reductions.

[00:58:28] Speaker 03:
I think that he's moving from reasonable inferences to complete speculation and conjecture as to whether or not there was violated information used in each application and whether or not that would be an improper use.

[00:58:43] Speaker 03:
But I also think it's important to point out that, for example, with regard to the struck and page allegations, there simply is no allegation that's pleaded here with any sufficiency about the fact that any FISA information was disclosed or used.

[00:59:01] Speaker 03:
And it's also interesting, too, that on one hand, they're arguing that there was no fruits of the investigation, but then that they were using that information for more probable cause.

[00:59:12] Speaker 04:
It doesn't have to be using it for probable cause.

[00:59:14] Speaker 04:
It doesn't have to be an improper use.

[00:59:16] Speaker 04:
It just has to be intentionally disclosing or using information obtained by electronic surveillance that wasn't authored.

[00:59:27] Speaker 04:
Even if it's used in a very anodyne way, the renewal application says, tell us what you found so far.

[00:59:35] Speaker 04:
And even if it said, well, we listened to him and we found him coordinating about dog walking,

[00:59:43] Speaker 04:
just if that's all they had found, that that would still be in violation as I understand it, unless you correct me.

[00:59:51] Speaker 03:
Well, I think, Your Honor, I think, Your Honor, if it was FISA information, meaning the contents of electronic communications that were recycled through the affidavits, and frankly, there's no sufficient allegation that that was the case.

[01:00:09] Speaker 03:
There's no facts supporting that in the complaint.

[01:00:12] Speaker 03:
And he's asking for inferences which really go well beyond a reasonable inference to conjecture.

[01:00:17] Speaker 03:
And in any event, he mentions information and belief without stating the basis for that information and belief.

[01:00:24] Speaker 03:
So it's not adequately alleged under Rule 8 or any standards that this court has applied in the past.

[01:00:29] Speaker 04:
So you're relying exclusively on the ground that the district court relied on.

[01:00:37] Speaker 04:
I mean, if you look at paragraphs 142, 229, 230,

[01:00:42] Speaker 04:
If I disagreed with you that those were or disagree with the district court that those were inadequately concrete.

[01:00:51] Speaker 04:
You don't have a separate argument.

[01:00:52] Speaker 03:
No, I think what's the most important thing here is that there isn't any information.

[01:00:56] Speaker 03:
There's no basis to conclude.

[01:00:59] Speaker 03:
that there was FISA information that was used and disclosed.

[01:01:02] Speaker 03:
There was no, like, the communications that weren't deceptive and that were used, and that's FISA information.

[01:01:08] Speaker 04:
The statute talks about, I mean, I'm just trying to apply this statute where it says that a person is culpable, intentionally discloses or uses information obtained by electronic surveillance not authorized under FISA.

[01:01:28] Speaker 04:
doesn't have to be improperly amping up the probable cause.

[01:01:35] Speaker 04:
It doesn't have to be with any particular invidious motive.

[01:01:39] Speaker 04:
So if they obtained from the first warrant completely anodyne information,

[01:01:45] Speaker 04:
And if you know that the next application, which we do know from the record in this case, that the next application say, and what has the surveillance to date provided, and you just put in there something that is completely.

[01:02:00] Speaker 04:
If that is factual information doesn't not to the harm of Dr. Comey, it's not to the further support.

[01:02:07] Speaker 03:
Dr. Page, Mr. Comey.

[01:02:08] Speaker 04:
Pardon?

[01:02:09] Speaker 03:
I think you meant to say Dr. Carter.

[01:02:11] Speaker 04:
Dr. Page, I'm sorry.

[01:02:12] Speaker 03:
Dr. Page.

[01:02:14] Speaker 04:
Not Mr. Crony.

[01:02:15] Speaker 04:
But if it's not to the, you know, mirroring him in any way, but if it's just using that information, I guess I'm just asking.

[01:02:23] Speaker 04:
Isn't that A, stating a claim under this provision?

[01:02:27] Speaker 04:
And B, adequately alleged.

[01:02:31] Speaker 03:
He hasn't adequately alleged that there were specified what the FISA information was that was used

[01:02:39] Speaker 03:
going forward.

[01:02:40] Speaker 04:
He doesn't need to because there's a place on the form where you have to say what you found and it was filled in and it's been redacted.

[01:02:50] Speaker 03:
But he's not alleging that, but to go in a different direction, he would just be basically guessing that there was FI's information that was used improperly.

[01:03:01] Speaker 04:
He doesn't have views improperly.

[01:03:02] Speaker 03:
No, but just by the information used.

[01:03:04] Speaker 03:
And I think that's speculative.

[01:03:05] Speaker 03:
I don't think that he can really, he hasn't adequately alleged what that was and who used it.

[01:03:12] Speaker 04:
Well, whoever was getting a renewal application was using it.

[01:03:18] Speaker 04:
He's alleged that.

[01:03:22] Speaker 03:
But who is the name that has done that?

[01:03:26] Speaker 04:
The defendants?

[01:03:27] Speaker 03:
No, but without adequate basis to say on information and belief what the information is and really who did it.

[01:03:35] Speaker 03:
It's really, it's basically speculative as to what his allegations are.

[01:03:42] Speaker 04:
The people who were involved in the decisional chain reading and approving one application that had a section in it that said, what have you found from the prior

[01:03:53] Speaker 04:
surveillance and had text in that, anyone who reads that is using that information in going forward.

[01:04:04] Speaker 04:
I mean, maybe that's a wooden statute, but I'm trying to engage you in helping me.

[01:04:11] Speaker 03:
I'm trying to judge, but I think his allegations are essentially conclusory and not sufficiently specific as to who did what.

[01:04:21] Speaker 05:
Do you think even today,

[01:04:24] Speaker 05:
Any of us know, besides the defendant's name, who actually used or disclosed the information to give the second, third, and fourth forms?

[01:04:44] Speaker 03:
Oh, so I look at two groups of information used or disclosed.

[01:04:48] Speaker 03:
First is what the plaintiff was talking about principally when he was up here a few minutes ago.

[01:04:54] Speaker 03:
which regard to stroke and page has no basis to believe that any FISA information was disclosed.

[01:05:04] Speaker 03:
I agree with Judge Pollard where we're talking about rolling over information into subsequent warrants.

[01:05:12] Speaker 03:
And I think the question is whether or not that's an improper use, number one.

[01:05:17] Speaker 03:
But number two, it wasn't,

[01:05:22] Speaker 03:
sufficiently alleged as to who disclosed what and whether or not that information was really files information and that's what I think one of the weaknesses in his complaint but in any event that was in for being improper use where do you get improper forgive me I misspoke but it is important your honor but if you used information improperly would be to just to disclose it

[01:05:50] Speaker 03:
as opposed to just use it.

[01:05:52] Speaker 03:
So when I'm talking about disclosing, that would be an improper use.

[01:05:56] Speaker 04:
Well, if you're using it in the course of work, so Mr. Comey, the complaint alleges that he was involved in, I mean, he had to sign off on the applications.

[01:06:16] Speaker 03:
But the certification of that application has nothing to do with the verification of what the facts were.

[01:06:22] Speaker 04:
Right.

[01:06:22] Speaker 04:
But if one of the sections of the application is labeled information obtained from prior surveillance, then he has used information obtained.

[01:06:38] Speaker 04:
And then it's a question of the fact, whether it was proper or improper.

[01:06:42] Speaker 03:
I think the certification by the director of the FBI is an issue separate or apart from what is a factual basis supporting the affidavit.

[01:06:50] Speaker 03:
The certification by the director of the FBI is the purpose to be served by the conduct of the FASA surveillance.

[01:06:58] Speaker 05:
Can I ask you if you're reading of 1809, A2, discloses or uses, are you saying we don't,

[01:07:11] Speaker 05:
We don't know who used it or disclosed it.

[01:07:14] Speaker 05:
And that's the problem.

[01:07:15] Speaker 05:
It's not concrete enough.

[01:07:21] Speaker 05:
Or are you saying, disclose or use means outside?

[01:07:26] Speaker 05:
In other words, it cannot be used to prosecute somebody inside the FBI who is continuing to use information

[01:07:39] Speaker 05:
that was obtained by unlawful electoral?

[01:07:44] Speaker 03:
Look, I think the latter.

[01:07:45] Speaker 03:
The purpose of the disclosing use is outside the government and not within the application itself.

[01:07:56] Speaker 05:
Well, then how do you ever use this in a case like this where you, let's just, I won't even say a case like this.

[01:08:07] Speaker 05:
Hypothetically, you've got an agent

[01:08:09] Speaker 05:
who is acting unlawfully by disclosing or using information that he knows is obtained illegally to get further surveillance?

[01:08:23] Speaker 03:
Well, I think in this particular instance, I mean, it was ultimately determined that there wasn't sufficient basis for probable cause.

[01:08:30] Speaker 03:
So I think that if the, it's hard to answer that question in a vacuum, but I think if there was information that was,

[01:08:38] Speaker 03:
conjured up or disclosed improperly at some point, it could surface.

[01:08:41] Speaker 03:
It's hard to say exactly what that trigger could be, but yes, it could happen as it did happen here where review of what happened with determination was made that there wasn't sufficient probable cause, and consequently, it was determined to be unauthorized surveillance.

[01:08:59] Speaker 05:
Well, it was determined to be a violation of 1809A2.

[01:09:07] Speaker 05:
It may be.

[01:09:08] Speaker 05:
That's what we're trying to figure out is if what happened violated this and if what happened didn't violate this, I don't know how you could get to a rogue agent.

[01:09:23] Speaker 03:
I don't know if there's any difference if you were using it internally with the application either until at some point if the government tried to use that surveillance and these applications and so forth saw the light of day.

[01:09:38] Speaker 04:
You in the, or I don't know if it was you who represented Mr. Comey and the other individual defendants in the district court, but there was, there's a few different pieces of information that are relevant to the time bar issue.

[01:09:55] Speaker 04:
One is the Washington Post article.

[01:09:57] Speaker 04:
Another is the interactions that Dr. Page had with the Congress.

[01:10:02] Speaker 04:
And so his awareness of

[01:10:07] Speaker 04:
the facts that ultimately are alleged in his complaint is perhaps more sharply stated in his interactions with Congress.

[01:10:16] Speaker 04:
And you had, or the individual defendants, had argued in the district board that the statements of the House members about appropriate falsehoods and fabricated from the outset were part of

[01:10:36] Speaker 04:
demonstrating pages.

[01:10:37] Speaker 04:
You don't refer to those in the appellate.

[01:10:39] Speaker 04:
Can I wonder?

[01:10:40] Speaker 03:
Well, I think I think because I think the interaction with Congress came after the April 17th article.

[01:10:45] Speaker 03:
And our point is, is that the April 17th April 2017 article by the Washington Post really was a triggering point for when he should have under the case law become aware of the injury.

[01:10:58] Speaker 03:
And from that point in time is when the statute of limitations should run.

[01:11:01] Speaker 04:
But if you're worried at all about whether he's aware of

[01:11:05] Speaker 04:
the knowledge of falsehood, which is a key aspect of the claim.

[01:11:11] Speaker 04:
The key aspect of the claim is much more sharply stated in the saying that these are falsehoods and that they were fabricated as opposed to unjustified.

[01:11:21] Speaker 04:
As I said, you can be innocent, but still have valid probable cause raised to investigate you.

[01:11:29] Speaker 03:
I don't disagree with you, Judge, because more came out at that hearing than came out

[01:11:34] Speaker 03:
from the Washington Post article, so I don't disagree with that.

[01:11:38] Speaker 03:
All right.

[01:11:40] Speaker 05:
Can you wind it up?

[01:11:41] Speaker 03:
Sure.

[01:11:42] Speaker 03:
So the other thing I want to point out, too, is as we put, I mean, I can address the engaged in part of this, but does that have any questions on that?

[01:11:53] Speaker 03:
I think that essentially what he's trying to do is have this court legislate where Congress chose not to.

[01:12:00] Speaker 03:
And with that in mind, I also would

[01:12:03] Speaker 03:
respectfully address the court's attention to our 28A letter, which I know you've seen and reviewed, unless you have any other questions that will rest on a brief.

[01:12:13] Speaker 05:
Thank you.

[01:12:33] Speaker 02:
May it please the court, Benjamin Schultz on behalf of the government defendants.

[01:12:38] Speaker 02:
As the case reaches this court, the claims against the government defendant really reduces to just one thing.

[01:12:43] Speaker 02:
It's an 1806 claim for the alleged use within the FISA renewal applications.

[01:12:50] Speaker 02:
That claim can be resolved in the government's favor for any of three reasons.

[01:12:55] Speaker 02:
First, because the claim is precluded under the statute of limitations, as we explain in our brief,

[01:13:02] Speaker 02:
The relevant question is not when he had actual notice of all of the elements of his claim, but just when he had a reasonable opportunity to know that he had a claim.

[01:13:12] Speaker 02:
Second, it can be resolved on forfeiture because the entire theory that he presents on appeal, that use of FISA obtained information in renewal applications

[01:13:24] Speaker 02:
where the other aspects of the renewal applications contain material falsehoods and omissions is what constitutes an unlawful purpose is a theory that was never presented in the district court at all.

[01:13:34] Speaker 02:
And so under ordinary principles of forfeiture,

[01:13:36] Speaker 02:
that argument can no longer be made here.

[01:13:39] Speaker 02:
And then finally, it fails on the merits because all of the allegations in the complaint are about how the FISA-acquired information didn't tend to bolster the government's case.

[01:13:49] Speaker 02:
According to Dr. Page, it just tended to show that he wasn't a foreign agent.

[01:13:54] Speaker 02:
So whatever unlawful use was being put in the warrant applications, it was the other information that was creating the material omissions and the misinformation.

[01:14:04] Speaker 02:
It wasn't the FISA information.

[01:14:07] Speaker 02:
statute of limitations issue, because here there's a couple of distinctions with the claim against the government versus the claim against the individual defendant.

[01:14:15] Speaker 02:
So I don't want to make sure the court understands.

[01:14:17] Speaker 02:
First of all, the relevant date for the government is that he submitted a valid claim is in September 2018.

[01:14:23] Speaker 02:
So that means that he has to show that even then, even as of September 2018, he didn't have the information that he needed.

[01:14:31] Speaker 02:
And frankly, we just don't see how that's possible, because not only does that bring in the Washington Post article,

[01:14:37] Speaker 02:
It brings in his own testimony before the committee.

[01:14:39] Speaker 02:
It brings in the committee report as well.

[01:14:42] Speaker 02:
And from all of that, he can see that there were not just an initial application, that there were renewal applications.

[01:14:48] Speaker 02:
Those gave him information that there was falsehoods in all of that.

[01:14:52] Speaker 02:
And for his theory against the government, it doesn't even matter whether he knows whether it was person A.

[01:14:57] Speaker 02:
or person B, he just has to know that it was the government.

[01:15:01] Speaker 02:
And he knew that.

[01:15:02] Speaker 02:
So then really, the only thing he's left with is the argument that he's presenting today, that he says, well, maybe we knew that there were falsehoods, but we didn't know that there was FISA-acquired information in the applications.

[01:15:13] Speaker 02:
And that's actually precluded by his own admissions in the district court.

[01:15:17] Speaker 02:
And so if you go to page 209 of the Joint Appendix,

[01:15:21] Speaker 02:
This is his opposition to the government's motion to dismiss.

[01:15:25] Speaker 02:
He acknowledges that what's in the renewal application hasn't been publicly disclosed.

[01:15:30] Speaker 02:
But he says, that doesn't matter, because it's logical and plausible to conclude that because there were four successive warrants issued by the FISC, the applications for the three follow-on warrants included information obtained unlawfully through the preceding warrants.

[01:15:45] Speaker 02:
So he's telling you quite clearly that

[01:15:48] Speaker 02:
he could, at the very least, reasonably conclude and infer from the fact that there were renewal applications that those renewal applications would have contained FISA-acquired information.

[01:15:57] Speaker 02:
And so at that point, once he knew that there were renewal applications, he should have brought the claim.

[01:16:02] Speaker 02:
I'd be happy to address that further.

[01:16:04] Speaker 02:
I think that can adequately resolve the case.

[01:16:07] Speaker 02:
But just briefly on the waiver, I'm sorry.

[01:16:10] Speaker 04:
And on the statute of limitations, there's some argument about whether there's a six month and a two year.

[01:16:17] Speaker 04:
Do they both apply?

[01:16:19] Speaker 02:
So basically, these are the same procedures as are used under the Federal Tort Claims Act.

[01:16:25] Speaker 02:
You first have to submit an administrative claim.

[01:16:28] Speaker 02:
It's a two-year period to submit that administrative claim from when the claim accrues.

[01:16:33] Speaker 02:
Once you submit the administrative claim, if the government denies the claim and it denied it here, then you have six months from the denial to bring suit.

[01:16:41] Speaker 02:
So we're not saying he missed the six-month bar.

[01:16:43] Speaker 02:
The bar that's relevant here is the two-year bar.

[01:16:47] Speaker 04:
And why isn't Page's claim similar to that of Richard and Richard versus Molesky, where we held that the plaintiff's claims were told until he discovered that the defendants, not just that, I mean, he knew from the beginning that he was innocent of the charges that were being alleged against him, but we held that he didn't have to sue until he discovered that the defendants had intentionally relied on

[01:17:16] Speaker 04:
that they had a confidential source.

[01:17:21] Speaker 02:
So respectfully, Your Honor, there's a couple of responses.

[01:17:24] Speaker 02:
The first is that, at least after the congressional report was released, if not sooner, he knew that there were misrepresentations.

[01:17:33] Speaker 02:
I mean, the report, you can find this on page 106 of the Joint Appendix,

[01:17:39] Speaker 02:
It says material and relevant information was omitted, including from the renewals.

[01:17:44] Speaker 02:
And it talks about the Steele dossier.

[01:17:45] Speaker 02:
And he's already previously said, before that committee report was released, that he thought the Steele dossier was complete fabrication.

[01:17:53] Speaker 02:
So at that point, he surely knew that there were lies.

[01:17:57] Speaker 02:
In addition, though, I think the relevant question here is the terms of the statute that talks about claim accrual.

[01:18:04] Speaker 02:
And this is 18 USC 2712B.

[01:18:07] Speaker 02:
The claim shall accrue on the date upon which the claimant first had a reasonable opportunity to discover the violation.

[01:18:13] Speaker 02:
It's not that he has to know every single fact.

[01:18:16] Speaker 02:
It's just that he has to have a reasonable opportunity.

[01:18:18] Speaker 02:
And given that he himself was saying that he thought that there was falsification and that there were congressional report released that

[01:18:25] Speaker 02:
Attended to support his theory and given that he himself is saying that once he knew that there were renewal applications It was logical and reasonable to conclude that there was going to be FISA acquired information in those applications Then we think he more than met the standard and in this regard your honor I'll just we cited the sprint communications case in our brief, which is a case from this court

[01:18:46] Speaker 02:
And that talks about claim accrual.

[01:18:48] Speaker 02:
And it talked about how when somebody had, there was information that somebody was engaged in a particular kind of malfeasance in 1981 with their pricing practices.

[01:18:57] Speaker 02:
And this court said, well, even though you didn't know that that malfeasance was going on with regard to different rates that were being set in 1984 and 1985, you could reasonably infer that the illegal stuff that was going on in 1981 would have continued in 1984 and 1985

[01:19:13] Speaker 02:
And that logical inference is sufficient to accrue your claim.

[01:19:16] Speaker 02:
So if a logical inference, based on one piece of information, was sufficient to show that four years later you had a claim based on different acts, in that case, we think that would also cover this kind of situation.

[01:19:28] Speaker 02:
So Spring Communications was actually an agency review case.

[01:19:33] Speaker 02:
But again, I think the only relevance that the motion to dismiss has here is what are the facts that the court has to decide based on.

[01:19:41] Speaker 02:
Here, if you look at the facts that are alleged in the complaint and you look at the facts that are incorporated by reference into the complaint, you have everything you need.

[01:19:51] Speaker 02:
And here, I think his own admission in the district court

[01:19:53] Speaker 02:
is the coup de grace, if you will, because he's saying that that was enough for him to conclude that the renewal applications contained FISA-required information.

[01:20:04] Speaker 02:
And I'd be happy to address the other arguments that we have about.

[01:20:07] Speaker 02:
We have your brief.

[01:20:08] Speaker 02:
Thank you.

[01:20:11] Speaker 05:
Mr. Chair, two minutes, but that's it.

[01:20:18] Speaker 05:
Unless there are questions.

[01:20:20] Speaker 07:
Thank you, Your Honor.

[01:20:20] Speaker 07:
Just a couple of points in response.

[01:20:24] Speaker 07:
First of all, with respect to the statute of limitations, it is an affirmative defense.

[01:20:28] Speaker 07:
Um, the defendants have not answered yet, and the arguments that they've made are perfectly fine summary judgment argument, but not a not a proper basis for dismissal based on the based on the statute of limitations.

[01:20:44] Speaker 07:
Um, and as to the case law, I

[01:20:48] Speaker 07:
The case law, it seems to me, overwhelmingly supports Dr. Page's position here, the Richards case that we've discussed earlier, the Rotella case also.

[01:21:00] Speaker 07:
And then if we look at the, if we think back to your conversation, Judge Henderson, with counsel about 1801, what was it?

[01:21:17] Speaker 07:
A, the issue of the targeting.

[01:21:23] Speaker 07:
you know, Mr. Kelly said that no individual and no group was actually targeting Carter Page.

[01:21:29] Speaker 07:
Well, if that's true, then the surveillance was entirely unlawful because the statute requires that somebody be targeted.

[01:21:38] Speaker 07:
And so they were obviously targeting Mr. Page, and what they did, and especially their use and disclosure of subsequently acquired information,

[01:21:52] Speaker 07:
is painfully unlawful, we think.

[01:21:58] Speaker 07:
Mr. Kelly also talked a lot about the uncertainty as to who exactly did what.

[01:22:04] Speaker 07:
And to the extent that's an issue, we have John Doe plaintiffs in our case.

[01:22:10] Speaker 07:
And so it seems to me that would solve that problem.

[01:22:13] Speaker 07:
And just by way of conclusion, as Judge Henderson pointed out, if what is alleged here doesn't constitute a violation of 1809, it's hard to imagine how you would ever hold a rogue

[01:22:25] Speaker 07:
FBI agent accountable and we urge the court to reverse the dismissal.

[01:22:32] Speaker 05:
Thank you.