Five Questions the Nunes Memo Better Answer

The House Intelligence Committee has voted to release the Nunes Memo, which allegedly outlines widespread abuses by the DOJ and FBI in obtaining a surveillance order against former foreign policy adviser to the Trump Campaign, Carter Page. As a former FBI agent who has been through the process of obtaining these kinds of warrants under the Foreign Surveillance Intelligence Act (FISA), I know that such an allegation, if true, would require a vast number of people – across two branches of government – to be on board and willing to put their careers on the line for a conspiracy. To that end, in advance of the memo being released, I want to highlight five questions that the Nunes Memo must clearly address in order for its allegations of abuse to be substantiated and credible.

1. When did the FBI open an investigation on Carter Page?

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. In fact, FISA warrants can be approved only for what are called Full Investigations. These are the most serious class of investigations within the FBI and require an “articulable factual basis” to open: For counterintelligence cases on U.S. persons (USPERs), these cases involve facts demonstrating that the subject is in contact with and working on behalf of a foreign intelligence service. 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) and has said that he shared “immaterial information and publicly available research documents” with the Russian spies. As former CIA officers and I have described, this would be consistent with the early stage of an intelligence recruitment process, and the 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. The Wall Street Journal reported that U.S. intelligence obtained intercepts as early as spring 2015 of Russians discussing “meetings held outside the U.S. involving Russian government officials and Trump business associates or advisers.” 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 to demonstrate how and why Page was “engaging in clandestine intelligence activity on behalf of a foreign power” to obtain surveillance.

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.

2. Who in the DOJ conducted the Woods Procedures on the FISA application?

Here’s where the rubber meets the road in the FISA process. 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. I’ve outlined the entire process previously, but it’s the careful vetting process conducted by the National Security Division known as Woods Procedures – named after the lawyer who developed this in-depth review, Michael Woods – where every fact contained in the application is verified. And by every fact, I mean every fact. To use a very straightforward example, say the FISA affidavit asserts that the target took a flight on a certain day. During the Woods Procedures, the agent would have to show the NSD lawyer the underlying case file, where the agent would have previously obtained, say, the passenger flight manifest for that flight from TSA and/or entry-exit information from USCIS to corroborate the assertion made in the affidavit (and a very good NSD lawyer would have the agent include that information in the affidavit itself). The same would have to be done with human source reporting, meaning that the FBI would use information gathered through different means to corroborate a source’s assertions. Can’t corroborate it? It doesn’t go in.

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. The system is also digitized, and tamper proof, so you can’t go in and delete or fiddle with existing case documents. 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. (Fun fact: Hoover’s first job was at the Library of Congress, where he learned the idea of making a numerical cross-reference system that allowed any one detail contained in hundreds of thousands of files to be located immediately).

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. Without doing any kind of Woods Procedures, the NSD lawyers would be walking into a federal court without a solid basis to answer the questions a judge might ask about the underlying investigation or the target. Pro tip: This is not a good set up for getting a FISA order to be approved.

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.

3. Who was the federal judge who approved the FISA?

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. The current talking points from GOP House members who have seen them memo and buy its contents suggest that Nunes has attempted to get around directly implicating a federal judge in a conspiracy by suggesting that s/he got “tricked” by the wily FBI/DOJ.  In other words, the FBI and DOJ just happened to be assigned a judge who skipped breakfast and was running on such low blood sugar that they just didn’t pay attention to the details of a FISA application asking to surveil a USPER who just happened to be a former national security adviser to a current U.S. presidential campaign. Right.

Let’s start with a quick fact: Judges aren’t dummies (recent judicial nominees notwithstanding). Anyone who has worked with or appeared in front of a federal judge knows this, and no lawyer that I know would count on being able to hoodwink one. But even one running on low blood sugar on the day the DOJ came in with the Page FISA application would have had reason to perk up for two reasons. First, the FISA statute expressly prohibits approving electronic surveillance for “solely First Amendment activity.” 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. No judge in his or her right mind would have signed their name to a FISA order of this level without carefully reviewing the underlying facts.

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. If he doesn’t, it’s likely because even he knows that this would be taking his accusations too far.

4. Was the FISA warrant ever extended?

This is a critical question, because even 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. This is because when a FISA order is obtained on an USPER, 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.

According to news reports, at least one other FISA warrant – the first one on former Trump campaign manager Paul Manafort – ceased. (Another one was subsequently obtained.) This shows that the FISA court takes this requirement seriously. 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 the fact that additional information validating the original FISA order was obtained, and reviewed and approved by a (potentially additional) federal judge, in addition to new administration staff at the DOJ.

5. Has Robert Mueller used anything derived from the FISA in his investigation?

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. Let’s remember: This is someone who booted a highly seasoned counterintelligence investigator, Peter Strzok, based on text messages that surfaced that could create even a perception of bias. 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.

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 in reliance on the Page warrant. 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.

* * *

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 James “I Cannot Tell a Lie” 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.  And despite this widespread and outrageous conduct, the current Assistant Attorney General, a Trump appointee, wrote Nunes about the memo to say, “we are currently unaware of any wrongdoing relating to the FISA process.”

The answers to the questions above are necessary to substantiate allegations of misconduct in the FISA process. 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.

(Mark Wilson/Getty Images)

 

About the Author(s)

Asha Rangappa

Senior Lecturer at Yale’s Jackson Institute for Global Affairs. She served as an FBI counterintelligence agent from 2002 to 2005. Follow her on Twitter (@AshaRangappa_).