//  2/5/18  //  In-Depth Analysis

Cross-posted from Shugerblog

The Nunes Memo is out. Schiff’s memo is blocked. So we need to rely on the next best thing: Yale Law’s Asha Rangappa offered an excellent post asking five key questions. If the Nunes Memo did not address them, it seriously undercuts its credibility. I re-produce her questions here and go through step by step, with her Takeaway quoted. For her full explanations, see her original post here. You can find the Nunes Memo here. A first observation: I can’t believe the Nunes Memo is barely three pages long. And I can’t believe that the House Republicans and President Trump are spending so much political capital on the credibility of Carter Page, who was suspected to be a Russian agent long before 2016 and whose own testimony shows that he was colluding with Russia during the campaign. I addressed Page’s stunning admissions in this blog post from last November here. I discussed more about Page and Russian collusion confirming details of the Steele memo in my blog post last January here.

Before turning to Rangappa’s questions, here is the bottom line of why the Nunes Memo is a Nothing Memo. The Nunes Memo is basically making the following argument: 1) The FISA application in October 2016 to monitor Carter Page was based on the Steele Dossier. 2) The Steele Dossier was a politically biased document. The problem with #1: The Nunes Memo does not establish or even argue that the FISA warrant was based solely on the Steele Dossier. It seems clear that Page has a ton of suspicious behavior that would have supplemented the Steele Dossier, plenty for the requirement of probable cause [See more on this below, at the bottom]. The problem with #2: Allegations of bias are not legally relevant to challenge evidence for probable cause. Law enforcment officials can rely on witnesses, even if those witnesses are biased, as long as there is sufficient basis to rely on the facts those witnesses have offered. Criminal investigations are full of biased witnesses. A rule to exclude witnesses because of some kind of “bias” would wipe out our law enforcement system. The Nunes Memo totally fails to show that any bias led Steele to offer any allegation that turned out to be untrue. The Steele Dossier so far has held up remarkably well, and many parts of it have been confirmed (including by Page’s own testimony).  Update: The Nunes Memo claimed that the FBI did not mention the DNC or Clinton funding of the dossier, but now, Republican leaders are acknowledging that the FBI disclosed the political origins of the dossier in the FISA application. Nunes was playing games with wording to mislead.

Now back to Rangappa’s questions:

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

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.

Did the Memo address this question? Not even close. The memo starts its timeline with the FISA application in October 2016. But there seems to have been a ton of evidence for “probable cause” on Carter Page’s criminal conduct from 2013, and Page’s own testimony and interviews indicates a remarkable amount of suspicious behavior throughout 2016. Page spoke to the House Intelligence Committee in Nov. 2017 about his travels to Moscow and suspicious contacts with Russian officials.

The Nunes Memo tries to imply that the FISA warrant was based solely on the Steele Dossier, but it does not actually make such a bold assertion, probably because Nunes can’t make that assertion and can only imply falsehoods. Two observations: The Steele Dossier allegations have mostly been confirmed, and no significant allegation in it has been disproved. Moreoever, it is totally implausible that the FISA application was based solely on the Steele Dossier when Page was on so many people’s radar as a suspected Russian agent for so long based on flagrantly suspicious conduct.

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

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.

Did the Nunes Memo address the Woods Procedure? NO.

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

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.

Did the Nunes Memo address the judge who approved it? NO.

4. Was the FISA warrant ever extended?

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.

Did the Nunes Memo address the FISA warrant’s extensions? The memo indicates that there were THREE FISA renewals, but it does not acknowledge how these renewals undercut the memo’s implications. Each renewal suggests confirmation of probable cause to continue monitoring Page. I’m struck by how the memo acknowledges three renewals, when Rangappa indicated that just one renewal would be problematic for Nunes’s allegations. Three renewals indicate a lot of confirmation of the initial suspicions.

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

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.

Did the Nunes Memo address this question: No. Mueller is never mentioned. 

It mentions Papadopoulos, and indicates that the FISA application on Page mentioned “information” about Papadopoulos. The Nunes Memo asserts that “there is no evidence of any cooperation or conspiracy between Page and Papadopoulos.” Why does that matter? I would imagine that a FISA application would try to establish probable cause on Page by showing other Trump officials were engaging in similar criminal conduct, as a relevant part of a bigger picture. The Papadopoulos information would obviously not be sufficient to monitor Page, but it was relevant along with other information to establish probable cause for surveillance.

Some additional questions:

If Nunes and House Committee had such concerns about the FISA process from this episode, why did they vote to re-authorize the same FISA system without raising or addressing any of these “problems”?

The Nunes Memo concludes with evidence of how it is taking its material out of context. The last paragraph goes after Peter Strzok and Lisa Page, referring to their text about an “insurance policy” against Trump. In context, we now know that the “insurance policy” comment was relatively innocuous, and certainly not as menacing as Nunes tries to make it. It is evidence of how Nunes is twisting material out of context, in the one case where we already have the underlying material. It suggests that Nunes is doing the same with the material we don’t have.

The one line in the Nunes Memo that raises concerns about degree the FISA process relied upon the Steele Dossier is the following at the bottom of p. 3 (H/t Corey Robin): “Furthermore, Deputy 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.” Let’s assume that statement is true (though I would be skeptical. It’s not a full quote, and given how important Nunes’s implicit claim is here, it is suspicious that Nunes gives it such an ambiguous wording with so much shady wiggle-room and so little clarity). Does that mean that the warrant was solely based on the Steele Dossier? No. First, note the phrase “Steele Dossier information.”That might mean “information originating from the Steele dossier,” but then confirmed from other sources. Second, the logic here does not suggest that the Steele dossier was the ONLY information. McCabe may have been suggesting that the Steele Dossier was a “necessary” cause because it started the process in finding more information sufficient for probable cause. Or the Steele dossier information was necessary to reach the threshold of probable cause, but that does not necessarily mean it was the only evidence presented. McCabe might have suggested that the other evidence by itself might not have been enough for a FISA warrant, but when added to the Steele Dossier and confirming the Steele Dossier, that body of evidence was sufficient for probable cause. A “necessary” cause (a.k.a. a “but for” cause or a “sine qua non” cause) is not the same thing as a “sole cause.” And I’m suggesting that even if one takes the Nunes sentence at face value, McCabe wasn’t even necessarily suggesting that but for the Steele Dossier material, the FISA application on Page would have been rejected. If McCabe was suggesting that the Steele Dossier gave them important leads, the FISA application still might have been sufficient without relying explicitly on the Steele Dossier. Thus, if the FBI had removed the Steele Dossier references from the application entirely, there still may have been sufficient information to establish probable cause. The Nunes Memo wording does not clearly suggest otherwise. And thus it does not land a legal punch against the FISA warrant, even taking Nunes’s one sentence on McCabe on its face.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP