The Nunes Memo Misses the Point: Probable Cause

Finally, the forces of #ReleaseTheMemo have won. On Friday, over the public opposition of the FBI, President Donald Trump declassified a document prepared by the staff of House Intelligence Committee Chair Rep. Devin Nunes (R-Calif.). It promptly found its way into the hands of Trump-friendly outlets, Fox News and the Washington Examiner, while the rest of us had to wait a half hour to get our hands on it. But even leaving aside the partisan context, the memo largely fails to make the case that the FBI’s decision to seek authorization to spy on Carter Page, who served as a foreign policy adviser on the Trump campaign, was unsupported or corrupt.

The memo makes two central allegations to advance the storyline that politically biased officials manipulated the foreign intelligence process to dig up dirt on the campaign:

• The Steele dossier formed an “essential part” of the FISA applications to initiate and continue surveillance of Page, and that the Justice Department (DOJ) failed to provide the court with pertinent information that undermined Christopher Steele’s credibility; and

• The reason the DOJ failed to disclose this information to the court, the memo suggests, is that the officials involved in signing off on the FISA application, as well as other Justice Department officials involved, were themselves biased against Trump.

While containing plenty of information aimed at discrediting the trustworthiness of the Steele dossier, the Nunes memo fails to grapple with the standard for obtaining a FISA surveillance order. For an American like Page, the government had to demonstrate “probable cause” to believe that he is an “agent of a foreign power” who is engaged in “clandestine intelligence gathering” that “may” involve a violation of U.S. criminal law. Although often equated to the familiar probable cause standard used to issue a regular warrant, the FISA standard is different because it focuses on the target’s relationship with a foreign power (which is broadly defined to include not just governments, but also terrorist groups), not on any potential criminal acts. In other words, it is more nebulous to begin with.

Clearly, the Steele dossier painted Page as an important player in alleged collusion between the Trump campaign and Russia. But the key question – whether or not there was enough information to suspect Page of being an agent of Russia in October 2016 – may have been answered well before Steele entered the picture. As the New York Times reported, the FBI investigated Page in 2013 because they had recordings of Russian intelligence officials talking about attempts to recruit him. The centrality of the Steele dossier to the Page FISA application is undermined by two other facts contained in the Nunes memo. First, the concession that the investigation of George Papadopolous began months before FISA surveillance of Page, presumably based on a tip from Australian officials as previously reported. Second, the FISA Court repeatedly agreed to allow surveillance of Page to continue, months after questions about the Steele dossier were raised in the press.

In addition to sidestepping whether the FBI demonstrated probable cause when it came Page, the Nunes memo misunderstands what it would take to meet that standard.  It asserts “the public’s confidence in the integrity of the FISA process depends on the court’s ability to hold the government to the highest standard – particularly as it relates to the surveillance of American citizens.” I have little doubt that FISA was scrupulously followed in a politically sensitive case like this one. But the standard itself is hardly as high as Nunes seems to believe.

While former government officials have emphasized that FISA surveillance applications are extensively documented, they arise in the context of foreign intelligence and counterintelligence, where courts are most deferential to the government. In 2014 the Intercept reported on the cases of five American Muslim men subjected to surveillance, which suggested that the FISA Court’s standards may not be as rigorous as some might assume. One of the targets, for example, Faisal Gill, held a top-secret security clearance and served in the Department of Homeland Security (DHS) during the George W. Bush administration. He was investigated by DHS because he served in an organization with a man who pleaded guilty to an assassination. Although cleared of all wrongdoing, he was put under surveillance when he became a candidate for the Virginia legislature.

In an informative post over on Lawfare, Orin Kerr argues – based on federal case law – that it is unlikely that the government is legally obliged to provide the court with derogatory information about its informants. Of course, there is one major difference between federal courts and the FISA Court: the FISA Court’s surveillance orders almost never see the light of day, and therefore cannot be challenged. The Nunes memo alludes to this issue, arguing that the FISA Court’s ability to protect Americans’ rights depends on the government producing to the court “all material and relevant facts,” which “should include information potentially favorable to the target of the FISA application that is known by the government.”

The argument that the FISA Court relies on the government to provide it with the right information so that it can make the best decisions is one that certainly resonates with me. But it is hard to take this argument seriously when it comes from the same set of lawmakers who have ignored numerous publicly known instances where the National Security Agency misled the FISA Court about its Section 702 warrantless surveillance programs. Especially when just last month they blocked efforts to add privacy protections for Americans. The suggestion that the government is obliged to disclose information favorable to the proposed target of surveillance is an intriguing one given the secret, ex-parte and essentially unreviewable nature of FISA Court orders. It seems to be an attempt by Nunes to incorporate Brady defendant protections applicable in criminal trials at the surveillance stage, and I will be curious as to what criminal law experts think of this proposal.

The memo also details the involvement of individuals whom Nunes clearly perceives as biased against the president. It starts by listing all those who signed off on the surveillance applications for Page on behalf of the FBI and the DOJ. Normally, this type of litany of senior oversight is meant to reassure the reader. If the very top echelons of government personally signed off on a surveillance request, it must be serious. In this case though it is meant to show that the decks were stacked against Trump. Former FBI Director James Comey and Acting Attorney General Sally Yates, both of whom Trump fired, signed off on the applications at certain points. Two others who have been the targets of Trump’s wrath, FBI Deputy Director Andrew McCabe and Deputy Attorney General Rod Rosenstein, also signed applications. It is hard to place too much importance on these signatures because the law stipulates which officers must sign FISA applications. Moreover, Dana Boente – who took over from Yates as acting deputy AG, and was recently appointed the general counsel of the FBI, also approved one or more of the applications for Page.

Finally, the memo implies that another high-level Justice Department official – Bruce Ohr, who “worked closely” with Yates and Rosenstein, was also anti-Trump. According to the memo, Ohr’s wife was employed by the same company, Fusion GPS, as Steele, and “assist[ed] in cultivation of opposition research on Trump.” This opposition research was provided to the FBI later by Ohr. Notably, the Nunes memo does not suggest that the FBI in any way relied on the information that originated with Ohr’s wife or that it formed the basis of the FISA applications. Without further information, it is hard to know what influence, if any, this had on the FISA process.

At the end of day, the main takeaway from this memo is that the FISA Court repeatedly authorized surveillance on a Trump aide who was suspected of being a Russian agent. Perhaps the FBI and the Justice Department should have told the Court more about Steele or perhaps they did, and Nunes failed to include that information in the memo. But for the most part, the memo doesn’t carry the weight of a conspiracy to destroy Trump. Instead, it fulfills its transparent purpose of throwing mud on law enforcement agencies in the hopes of derailing the Mueller investigation and potentially purging the FBI and DOJ of those who might retain a shred of commitment to the law.

 

Image: Mark Wilson/Getty

 

About the Author(s)

Faiza Patel

Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law, Former Senior Policy Officer at the Organization for the Prohibition of Chemical Weapons Follow her on Twitter (@FaizaPatelBCJ).