The Memo and the FISC

We often hear that the FISA court is a rubber stamp - that they've only turned down one or two cases they ever got. While that sounds damning, the truth just might be that nobody brings them a request that isn't nailed down pretty air tight. The complaint in my mind, if there is one, about the FISA court is that it follows the bent of our entire government, and perhaps most American citizens, to fear and treat seriously any suggestion of possible terrorist acts, along with anything deemed illegal by the powers that be. The problem I see is that anyone the FBI/DOJ would like to allow to circumvent our laws would not get a referral to the FISA court even if they deserved one.  We have a system of unequal justice no matter how vehemently we proclaim "no one is above the law."

The obvious attempt to muddy the waters in the Mueller investigation that is "the memo" brouhaha seems to have at its core a claim that the FISA warrant to surveil Carter Page was sketchy because it relied on the infamous Steele Dossier that the Republicans claim was full of inaccuracies and untruths. As we are all aware, a FISA court would not have granted a surveilance warrant on only one controversial document.

Here is an ex-FBI agent's neatly presented list of things to consider when evaluating "the memo":

It’s important to understand that just because the FBI receives information (like the Steele Dossier), the Bureau cannot immediately run to a FISA court and obtain a warrant. A FISA warrant itself does not make a “case;” rather, it’s an investigative tool used in support of an existing national security case, one that normally would have been opened months, if not years, prior. [...] That means that, at some point prior to obtaining the FISA warrant, the FBI opened an investigation on Carter Page, obtained enough factual evidence to justify making it a Full Investigation, and would have done enough investigative activity to be able to put together a FISA application.

In fact, Page was already on the FBI’s radar as far back as 2013, when they obtained recordings of Russian foreign intelligence officials discussing targeting Page for recruitment. FBI officials at that time interviewed Page and warned him that he was being targeted – Page admitted that he had been in contact with these officers (not knowing they were Russian intelligence operatives). [...] [T]he FBI would have likely kept tabs on Russia’s efforts to see if they persisted and succeeded. There are even reports that Page was under FISA surveillance in 2014, which could have strengthened the basis for a new one in 2016 with renewed Russian interest in him. [...] By the time Page joined the Trump campaign in 2016, the FBI would have had three years to monitor the recruitment process unfolding (Page continued his contacts with Russia through this time, and his unusual trip to Moscow in summer 2016 was no secret) – and this is the process the FBI would have outlined in its application to the FISA court in 2016.

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THE TAKEAWAY: If the Nunes Memo does not indicate when the investigation underlying the Page FISA application was opened or how many months/years of investigative activity preceding the dossier is detailed in the Page FISA application, it is not telling a sufficiently complete or accurate story.

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Even if the FBI were inclined to put together a slipshod FISA application, they can’t sneak it into court without going through a bunch of lawyers at DOJ [...] the careful vetting process conducted by the National Security Division known as Woods Procedures [...] where every fact contained in the application is verified.

  Just Security

That, right there, seems to me to be the only thing we need to consider. The FISA warrant was not arbitrarily tossed out with only the say-so of one dossier. This memo uproar is nothing more than a ruse by the GOP to help Donald Trump beat obstruction of justice charges. And as far as I'm concerned, it implicates them in the obstruction.

The hardcore tinfoil hat set will likely insist that the FBI would have just created a dummy case including fabricated evidence to prop up the FISA application and trick the DOJ. Good luck. The FBI has a case system in which every document that goes into a file is “serialized” based on the date it was added – in other words, you can’t backdate fake documents and insert them. [...] Finally, a single Full Investigation would be made up of a spiderweb of sub-case files – things like sources, travel, surveillances, or any other theme the case wants to track – all of which are interconnected to the main case and to other cases agents across the Bureau may be working on and might reference.

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What if the FBI convinced the NSD to just skip the Woods Procedures? This would be a pretty huge risk for the NSD lawyers, since it is they, not they FBI, who have to present the FISA application to the FISA court.

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THE TAKEAWAY: If the Nunes Memo doesn’t address who conducted the Woods Procedures for the Page FISA application, any material deficiencies in those procedures, or address this part of the DOJ review process at all, it is skipping over a critical part of the vetting process.

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Here’s where the Nunes conspiracy theory gets really dicey: For it to be true, it necessarily involves members of the federal judiciary. This is because when all is said and done, the FISA judge – one of 11 district court judges who sit on the FISA court in rotation (and who were appointed by Republicans and Democrats) – makes the ultimate call.

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Legally speaking, political activity is afforded the highest protection under the First Amendment, and Carter’s former role in the political campaign would have triggered extra scrutiny and questioning by the court regarding the probable cause stated in the application. Second, any sane judge would recognize the potential volatility of this FISA application, and understand that given Congress’ oversight role with FISA, the application could (and likely would) come under close scrutiny at some point.

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THE TAKEAWAY: Alleging a concerted conspiracy by the FBI/DOJ in obtaining the Page FISA necessarily implicates the judge who approved it, and suggests they are incompetent (at best) or corrupt (at worst). If Nunes is alleging serious crimes on the part of the FBI and DOJ, he must put his money where his mouth is and identify the judge who approved the FISA application.

That is not to say it's inconceivable that even a secret court judge at the highest level can't be bought (or is maybe politically biased), but he or she would have to be willing to destroy his/her career and spend some quality time in jail to approve a legally unwarranted warrant.

[E]ven if the FBI managed to “dress up” the dossier without any other supporting evidence, bypassed the vetting procedure, and got past a federal judge, the most they would get for all of this work is three months of surveillance. [...] [W]hen a FISA order is obtained on an [US person], the FBI must go back to the FISA court (perhaps before a different judge than the first time) within 90 days and demonstrate that the surveillance has, in fact yielded foreign intelligence substantiating the original probable cause alleging that the target is engaging in clandestine intelligence activity on behalf of a foreign power. If the FBI cannot show this evidence, the surveillance is terminated.

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More importantly, by the time Rod Rosenstein was appointed as Deputy Attorney General by President Trump, a FISA order on Carter Page, if it was still running, would have been in effect for close to six months. This means that the surveillance would have already been extended at least once by a FISA court based on new communications collected after the order, thereby validating the basis for the original order itself.

THE TAKEAWAY: Neither the FBI nor the DOJ has the power to extend a FISA surveillance order, they must request it. If a request to extend FISA surveillance that began in September 2016 was made by DAG Rosenstein in or around March 2017, the FBI had shown a federal judge that it had collected additional foreign intelligence information justifying the original order at least once already, around December 2016. The Nunes Memo should address [this] fact.

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Anything that happened with regard to the original application for the Page FISA order would have occurred months before Mueller was even appointed as Special Counsel for the Russia investigation. Mueller, by all accounts (including my own experience having worked in the FBI under his leadership) does not tolerate nonsense. In taking over the investigation, he would have vetted all the underlying evidence that had been gathered so far, including anything gathered from FISA orders and the underlying basis for obtaining them. [...] We know that Mueller sent FBI agents to interview Carter Page: It’s hard to believe that he would have proceeded in any way on Page if he was aware that the underlying investigation to that point had been based on anything but legal, corroborated information.

Of course, part of the GOP desperation push is an attempt to make Mueller seem biased, corrupt, or in some way compromised - an attack on Mueller personally.  They've laid kind of low on this, obviously due to Mueller's high reputation in the DOJ and both sides of Congress.  You can bet they've been searching under every rock to find something to pin on him, and if they'd found it, they would have been leaking it

THE TAKEAWAY: Anything that discredits the Page FISA application by definition is intended to cast doubt on the Mueller investigation. (This may also be an attempted implication of the Nunes Memo if it tries to tar DAG Rosenstein, since each major step that has been taken by Mueller have been approved by DAG Rosenstein.) If this is the case, then Mueller should be named directly in the memo as someone who has personally engaged in misconduct. [...] If he is not, it is because Nunes knows that this is a line he cannot politically cross directly without real evidence – and is trying to do so indirectly.

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In sum, the Nunes Memo reportedly alleges that at least a dozen FBI agents and DOJ prosecutors fabricated evidence, engaged in a criminal conspiracy to commit perjury, lucked out on being randomly assigned Judge Low Blood Sugar who looked the other way, and – coincidentally – ended up obtaining evidence that justified extending the initial FISA surveillance. This conspiracy was presumably signed off on by former FBI Director [...] Comey – who, while conspiring to bring down Trump, actually shifted the election in his favor by informing Congress he had reopened the Hillary Clinton email investigation one month after the Page FISA warrant. The sham FISA was validated by one or more federal judges who either didn’t know better or were in on the whole secret and later accepted and used by Special Counsel Mueller who was not a part of the FBI during this time at all.

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If Nunes has in fact singlehandedly uncovered this vast criminal enterprise, it’s hard to know what’s more astonishing: That a government bureaucracy managed to pull it off – or that Nunes has exposed it all in a scant four-page memo.

Bingo.