The FBI’s electronic case management system, Sentinel, allows agents to hide the existence of relevant investigative reports from other authorized users of the federal database. And during the Russia collusion hoax, Special Counsel Robert Mueller’s team used that functionality to keep potentially relevant documents hidden from other FBI agents investigating whether a Fusion GPS contractor lied to Congress.
The significance of these two facts cannot be overstated: Now in question is whether the federal government complies with the constitutional mandate in criminal cases to provide defendants all material exculpatory and impeachment evidence as well as its discovery obligations in civil litigation; whether Special Counsel Durham’s office, the inspector general, and agents investigating the members of the Crossfire Hurricane team had access to all relevant information; whether the DOJ and FBI provided congressional oversight committees with requested (or subpoenaed) documents; and whether FOIA responses included all relevant documents to the press and public.
Last Wednesday, Sen. Chuck Grassley, R-Iowa, released a recently declassified FBI “Electronic Communication,” or EC, dating from September 2019, which the Iowa Republican maintains “Proves Fusion GPS Contractor Nellie Ohr Lied To Congress About Contributions To Crossfire Hurricane.” That 43-page document, drafted by a FBI Washington Field Office agent, detailed extensive evidence indicating Nellie Ohr lied multiple times during her congressional testimony concerning the Crossfire Hurricane investigation into the Trump campaign.
The catalogue of evidence against Nellie Ohr, who is married to Bruce Ohr — one of the key FBI Russia-collusion hoaxers — raises the question of why the DOJ never pursued criminal charges against the Fusion GPS contractor. The EC also suggests that Nellie Ohr’s open-source research may have made its way into the Steele dossier and the fraudulent Alfa Bank materials provided to the FBI.
Those details, however, pale in comparison to two explosive facts the EC revealed by way of background. First, the EC explained the FBI’s Sentinel case management system allows investigative material to be coded “Prohibited Access,” which renders the files not merely inaccessible to other agents — but invisible to them. And second, Special Counsel Robert Mueller’s team designated the Trump/Russia-collusion investigations “Prohibited Access” in Sentinel, meaning any agents running keyword search in Sentinel would wrongly believe there were no responsive documents.
Here’s how the FBI Washington Field Office agent put it in the EC: “On May 3, 2019, relevant FBI/DOJ information related to this assessment [of Nellie Ohr] was inaccessible to FBI investigators given that the Trump/Russia-collusion investigations were in FBI systems under ‘Prohibited Access’ status which, unlike ‘Restricted Access’ status, precludes investigators from detecting the existence of potentially relevant serials.”
“In other words,” the EC continued, “when search terms that exist in the Prohibited Access-status cases are searched in Sentinel, the particular search will receive a false-negative Sentinel search response.”
The existence of the “Prohibited Access” classification came as a surprise to several former career prosecutors and FBI agents. Jay Town, a former career prosecutor and the U.S. Attorney for the Northern District of Alabama under Trump 1.0, told The Federalist he was not aware of the “Prohibited Access” classification and shared that many of his colleagues likewise had never heard of it. “This is a staggering revelation for nearly all of us,” Town said.
At least one former assistant U.S. attorney, however, indicated he knew of the “Prohibited Access” coding, and clearly the FBI Washington Field Office agents who drafted and approved the EC were familiar with its use as well. But how many DOJ and FBI agents knew of the “Prohibited Access” functionality is unknown.
There is also scant public information about the coding and when or why it is used. For instance, the redacted public version of the FBI’s Domestic Investigations and Operations Guide does not appear to discuss the use of “Prohibited Access” in Sentinel. An inspector general’s report from 2021, however, confirms Sentinel offers a “Prohibited Access” coding and that that coding renders the files invisible to other FBI agents, with a footnote in that report explaining:
Documents and data uploaded into Sentinel are assigned one of three access levels: unrestricted, restricted, or prohibited. The extent to which information appears in search results depends on the data’s access level and the searcher’s permissions. Prohibited data is visible only to users with permission to view the underlying case; all other users receive no search results and would not know that information relevant to their search exists in a prohibited case.
That the FBI’s case management system allows documents, including witness statements and other evidence, to be rendered invisible to other agents searching Sentinel for relevant documents is horrifying because the federal government is legally obligated in a variety of circumstances to produce such information — but it cannot produce something that it does not know exists.
For instance, in criminal cases the Supreme Court has held that the Constitution’s due process guarantee requires the government to disclose “material exculpatory and impeachment evidence.” The Department of Justice must rely on the FBI to provide this constitutionally required evidence — known informally as Brady/Giglio evidence — to a criminal defendant. But the FBI cannot possibly properly gather all materially exculpatory and impeachment evidence if the evidence is invisible to the searcher because it was coded “Prohibited Access.”
While the Brady/Giglio rule only applies in the criminal context, the federal government’s discovery obligations in civil litigation raise similar concerns: If documents responsive to a discovery request are hidden behind a “Prohibited Access” designation, the DOJ might not even know the material exists and thus can’t possibly provide it in response to discovery requests.
Without knowing when, why, or how often the FBI designates files as “Prohibited Access” within Sentinel, or whether, and if so how, the Bureau ensures it provides “Prohibited Access” Brady/Giglio evidence, it is impossible to access the scope of the issue. And that is a huge problem.
The ramifications of invisible records maintained within Sentinel by use of the Prohibited Access designation extend far beyond the realm of criminal prosecutions and civil litigation. The Prohibited Access designation also thwarts the investigation of potential crimes, such as in the case of Nellie Ohr.
At least in that case, though, the Washington Field Office agents knew that Special Counsel Mueller’s office had used the “Prohibited Access” designation for the Trump/Russia-collusion investigations, so they knew to ask for searches of those invisible documents.
But what about the Department of Justice’s inspector general? During his investigation into the four fraudulent FISA surveillance orders wrongfully targeting Carter Page, did Inspector General Michael Horowitz know Special Counsel Mueller’s office had secreted documents with the “Prohibited Access” designation? Did the inspector general obtain all relevant documents?
And what about the now-former Special Counsel John Durham, who was investigating the Crossfire Hurricane team? Did he know that the FBI had designated the Trump/Russia-collusion investigations “Prohibited Access?” Did his team obtain all relevant documents?
One must also wonder if higher ups in FBI headquarters used the “Prohibited Access” category for other highly politicized investigations, such as the probes into alleged corruption by the Clinton Foundation and the Biden family. If so, did the U.S. attorneys charged by Attorney General Bill Barr with overseeing those investigations — John Huber in Utah and Scott Brady in Pennsylvania, respectively — and the FBI agents working with them know Sentinel would not allow them to search for some relevant documents?
Then there’s the question of Congress and whether the DOJ and FBI provided all requested (or subpoenaed) documents to the senators and representatives performing oversight functions. If the bureau assigned agents to gather the evidence through Sentinel searches without consideration of the “Prohibited Access” functionality, it seems a sure bet that the congressional oversight committees did not receive everything they asked for.
Similarly, the DOJ and FBI’s compliance with the Freedom of Information Act, or FOIA, is now in doubt: If Sentinel won’t even show the existence of responsive documents marked “Prohibited Access,” the federal government cannot possibly produce the material in response to FOIA requests.
The bottom line is this: Why the DOJ didn’t charge Nellie Ohr with lying to Congress is the least significant of the questions raised by last week’s release of the Washington Field Office’s EC. And that may well be why FBI Director Kash Patel so quickly declassified that document — to expose the Prohibited Access functionality of Sentinel and the use of it by the get-Trump faction of the DOJ.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press.
She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals.
Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance.
Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
