How Well Did the Nunes Memo Answer the ‘5 Questions’?

Before the House Intelligence Committee released the Nunes memo on Friday, Asha Rangappa, a former FBI special agent, highlighted five questions that the memo would need to address if its allegations of abuse by the Justice Department and FBI were to be substantiated or deemed credible. In the end, as Steve Vladeck pointed out on Twitter last week, the memo, “sorta kinda answered one of the five questions,” posed by Asha. So, let’s take a closer look at the questions and what, if anything, the Nunes memo had to say about them.

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

Asha wrote: “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.”

WHAT DOES THE MEMO SAY? It cites the date that the most recent FISA order against Carter Page was taken out, Oct. 21, 2016, and then notes that at it was renewed three times, running into 2017.

The memo ignores Page’s earlier run-ins with U.S. law enforcement for his contacts with Russian intelligence officials, as well as the FISA surveillance against him that accompanied those run-ins. As Asha noted before the memo was released:

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.

Interestingly, the memo’s very last paragraph acknowledges an FBI counterintelligence investigation tied to the Trump campaign that preceded the FISA request for Page. It was triggered by information that originated with former Trump campaign adviser George Papadopoulos in late July 2016.

Here are the longer excerpts of what the memo says about the official start of the investigation:

On October 21, 2016, DOJ and FBI sought and received a FISA probable cause order (not under Title VII) authorizing electronic surveillance on Carter Page from the FISC. . . .

The FBI and DOJ obtained one initial PISA warrant targeting Carter Page and three FISA renewals from the FISC. As required by statute (50 U.S.C. §,1805(d)(l)), a FISA order on an American citizen must be renewed by the FISC every 90 days and each renewal requires a separate finding of probable cause. . . .

The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff, which focuses on Page’s July 2016 trip to Moscow. This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself to Yahoo News. The Page FISA application incorrectly assesses that Steele did not directly provide information to Yahoo News. Steele has admitted in British court filings that he met with. Yahoo News – and several other outlets – in September 2016 at the direction of Fusion GPS.  Perkins Coie was aware of Steele’s initial media contacts because they hosted at least one meeting in Washington D.C. in 2016 with Steele and Fusion GPS where this matter was discussed.

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

Asha’s take:

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.

. . . 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.

. . . 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.

WHAT DOES THE MEMO SAY? Nothing, nada, zilch. It is interesting to note that the memo seems to acknowledge that parts of the Steele dossier had begun to be verified by the time the FISA warrant was taken out on Page. The memo states:

According to the head of the FBI’s counterintelligence division, Assistant Director Bill Priestap, corroboration of the Steele dossier was in its “infancy” at the time of the initial Page FISA application. After Steele was terminated, a source validation report conducted by an independent unit within FBI assessed Steele’s reporting as only minimally corroborated.

The words “infancy” and “minimally” that the Nunes memo’s authors use to describe the dossier’s corroboration are ambiguous and fairly subjective. That the dossier had only begun to be verified by late October 2016 could easily mean that the parts of the document focusing on Carter Page had indeed held up to scrutiny at the time of the request. House Intelligence Committee member Rep. Adam Schiff (D-Calif.) told reporters on the day of the Nunes memo’s release that DOJ only provided the court the part of the dossier dealing with Page. That same day, Sen. Diane Feinstein (D-Calif.) who as a member of the Senate Intelligence Committee has access to classified information on Russia’s involvement in the 2016 elections, said that nothing “significant” in the dossier had been disproven.

 

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

Asha wrote:

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.

WHAT DOES THE MEMO SAY? The memo’s authors tried (badly) to dodge here. Rather than naming any of the judges who approved the surveillance order and its three extensions, the memo’s authors portrayed the FISC judges as noble defenders of civil liberties duped by politicking law enforcement officials who provided misleading information in their FISA requests:

Due to the sensitive nature of foreign intelligence activity, FISA submissions (including renewals) before the FISC are classified. As such, 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 surveillance of American citizens.

However, the FISC’s rigor in protecting the rights of Americans, which is reinforced by 90-day renewals of surveillance orders, is necessarily dependent on the government’s production to the court of all material and relevant facts. This should include information potentially favorable to the target of the FISA application that is known by the government. In the case of Carter Page, the government had at least four independent opportunities before the FISC to accurately provide an accounting of the relevant facts. However, our findings indicate that, as described below, material and relevant information was omitted.

New reporting from the Washington Post, the New York Times and the Wall Street Journal suggest that even this allegation is without merit. The memo alleges the judges who OK’d the spying on Page were not aware that the dossier by Christopher Steele was financed by Democrats. But the “Justice Department made ‘ample disclosure of relevant, material facts’ to the court that revealed ‘the research was being paid for by a political entity,’” an official told the Washington Post. Meanwhile, the right wing Twitter universe is full of attacks on Judge

 

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,” Asha wrote.

WHAT DOES THE MEMO SAY?  Working quite against itself, the memo reveals the FISA order for Page was renewed three times.

The FBI and DOJ obtained one initial FISA warrant targeting Carter Page and three FISA renewals from the FISC. As required by statute (50 U.S.C. §,1805(d)(l)), a FISA order on an American citizen must be renewed by the FISC every 90 days and each renewal requires a separate finding of probable cause. Then-Director James Comey signed three FISA applications in question on behalf of the FBI, and Deputy Director Andrew McCabe signed one. Then-DAG Sally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one or more FISA applications on behalf of DOJ.

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

As Asha noted, the October 2016 FISA application occurred months before Mueller was appointed as Special Counsel. Nevertheless, he sent FBI agents to interview Carter Page.

Per Asha:

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. . . .

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.

WHAT DOES THE MEMO SAY? The memo says nothing about how the intelligence collected from Page has been used by Mueller or anyone else at the Justice Department. It does, however, try to tarnish Rosenstein and other senior law enforcement officials, accusing them of providing the FISC with bad information in their warrant requests. (On the day of the memo’s release, President Donald Trump hinted that Rosenstein’s job is now in question and a conservative activist group has launched an advertising campaign against deputy attorney general in the wake of the memo’s release, Axios reports.) Meanwhile, a group of Republican lawmakers, including the likes of South Carolina Rep. Trey Gowdy, who helped significantly in drafting the memo and is described in the New York Times as a “fierce Republican partisan,” and Rep. Will Hurd of Texas, have said the memo has no effect on the Russia investigation, which they believe should continue. Both Gowdy and Hurd sit on the House intelligence Committee, and voted for the memo’s release. Nunes designated Gowdy to be the one Republican member of the Committee to see the underlying intelligence information. His statement about Mueller is accordingly even more significant.

* * *

The memo’s authors went out of their way to portray an FBI investigation that was cynically opened on the basis of “minimally corroborated” information from Chris Steele and Fusion GPS’s investigation, which it describes as Democrat-funded opposition research. The authors even attempted to frame Steele’s alleged comments to a DOJ official that “he was desperate that Donald Trump not get elected” as an example of a political agenda rather than the concerns of an intelligence professional who thought he had discovered possible evidence of a Russian assault on our nation’s democracy. The document at one point states that “Deputy [FBI] Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information”, a claim that by Friday afternoon was already being described as a flagrant misrepresentation of McCabe’s testimony.

The memo’s answers to Asha’s questions are (predictably) inadequate. The authors’ blatantly ignored inconvenient facts to produce a document that simply reiterated the same thing Nunes and other trump allies have been arguing for ages — that the FBI and DOJ were on a political witch hunt against the Trump team — while introducing zero new evidence to back up this claim.

Photo: Chip Somodevilla/Getty

 

About the Author(s)

John Reed

Managing Editor of Just Security (2014-18). Follow him on Twitter (@ReedJustSec).