Unwarranted Influence

When they weren’t dismissing the memo as a “nothing-burger,” Democrats denounced it, in the words of Adam Schiff, the committee’s ranking minority member, as “a political hit job on the FBI in service of the president.”

So which was it—strong poison or weak tea? Neither and both: It was strong stuff, the impact of which was weakened by the fact that (1) there is much we still don’t know about the case for surveilling onetime Trump campaign adviser Carter Page and (2) many of the most dramatic details had already been revealed piecemeal. For instance, we already knew that Hillary Clinton’s campaign and the Democratic National Committee had paid for the opposition research referred to in the FISA warrant applications—a series of memos produced in the summer and fall of 2016 by Christopher Steele, a retired British spy. That made headlines last October.

It’s a measure of how little new information was in The Memo that serious students of the Steele-dossier saga were muted in response to its release. Bret Baier of Fox News adopted a skeptical and challenging tone in his interview with House Intel chairman Devin Nunes. Kimberley Strassel of the Wall Street Journal was left guessing among several scandalous scenarios the memo suggested: “The FBI got fooled by a source, or it knew its source was lying, or it didn’t bother to check, or it was too incompetent to see the obvious.” For the memo to have been a bombshell, it would need to have proved one of these egregious possibilities.

Of all the commentary surrounding The Memo, perhaps the most interesting was offered a couple of days before the document dropped. Writing at the Lawfare blog, University of Southern California law professor Orin Kerr, a Fourth Amendment scholar, made the subtle, sophisticated, and just a bit cynical argument that it wouldn’t matter if the FBI relied on biased, dubious information in its FISA warrant applications because courts routinely rely on biased, dubious information in warrant applications.

Kerr pointed to Franks v. Delaware (1978) as establishing that a court is obliged to void a search or surveillance warrant based on information police knew or should have known was false. But in practice, “judges figure that of course informants are often biased,” Kerr wrote. “Informants usually have ulterior motives, and judges don’t need to be told that.”

Stephen Schulhofer, a professor of law at New York University and author of the Fourth Amendment manifesto More Essential Than Ever, allows that Kerr is right that “courts always accept warrants based on information from clearly biased sources.” Indeed, says Schulhofer, “information included in warrant applications typically comes from biased sources.” But recognizing the skewed and self-serving nature of such sources, “the law requires that informant tips be buttressed by some indicia of reliability.”

Which brings us to the sometime spy Christopher Steele: Were his informants reliable? Long after the FISA warrants were obtained, former FBI director Comey acknowledged in testimony to the Senate Intelligence Committee that the Steele dossier contained “salacious and unverified” material. And the fact that Steele was being paid to deliver oppo research might naturally call into question the dirt he was peddling. Still, it seems the bar for establishing reliability is awfully low—so low that verifying some small part of the material Steele had collected would be enough for a warrant application to be able to skip altogether the awkward fact that Clinton cash was involved: “If the government looked into the Steele memorandum and corroborated some of its claims,” Kerr wrote, “it undercuts the need to disclose the

funding source.” Also arguing in favor of Steele’s credibility—and thus against a requirement that it be revealed in a warrant application precisely who was paying him—is his status as “a former MI6 intelligence officer and Russia expert,” Kerr argued. “Maybe the key allegations are totally wrong. But if you’re trying to argue that Steele’s funding sources ruin the credibility of his research, his professional training and background make that an uphill battle.”

National Review’s Andrew C. McCarthy challenged that argument, saying that the only credibility that counted was not Steele’s, but that of his sources, about whom we know nothing. “Steele is not the source of the information,” wrote McCarthy. “For purposes of the warrant application, he is the purveyor of information from other sources.” And those sources are a gaggle of anonymous (we could say “shadowy” if we want to accentuate the menace in the narrative) Russians of unknown credibility and questionable motives.

Kerr responded with a tweet-storm of arguments meant to rebut McCarthy. Among the reasons he offered, the truest to his original case against The Memo was this: The “fact that the Steele dossier relied on double hearsay is obvious from the nature of the report and already factored in by anyone trying to assess its credibility.” That may well be true, but it doesn’t exactly inspire confidence in the safeguards against unfair, intrusive surveillance of U.S. citizens.

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Former D.C. Superior Court judge Stuart Nash agrees with Kerr that based on the information that has been disclosed to date, the warrants for surveilling Carter Page are unlikely to be invalidated. But he says that doesn’t mean the Department of Justice and FBI were right to have sought the warrants in the first place. “In almost every context, the judicial system relies on the adversarial process to restrain excesses,” Nash says.

But there is no adversarial process in the FISA court. After all, its domain is not criminal investigations but surveillance of suspected spies. So attorneys at Justice who prepare the warrant applications and the FISA judges who rule on them (federal judges who are assigned this duty by the chief justice) have tried to protect the process from any suggestion of overreaching or unfairness. “They have typically held themselves to a higher standard, to guard against the contention that the FISA court, operating in secret, is a rubber stamp for whatever the government wants to do,” says Nash. He cautions that unless and until the actual warrant applications for Carter Page are declassified, it will be impossible to know whether DoJ or the FBI were pushing the envelope.

While Page had resigned from the Trump campaign team before the FBI began its surveillance, it would be an outrage if judicial decision-making were influenced even in part by the partisan tactics of rival presidential campaigns. In surveillance cases, it’s not unreasonable to expect a higher standard of probable cause than that demanded of local cops looking for a warrant to raid a neighborhood meth lab. Schulhofer maintains there are such standards: “Courts are generally strict in judging probable cause to authorize warrants for electronic surveillance of targeted individuals,” he says, and “the FISA court is especially strict in this regard.”

Case law may indeed allow officers to use all sorts of dubious, third-hand scuttlebutt to secure warrants, but should it? “It is very important that the government be straightforward with judges about what they know about a source’s bias,” says Timothy Edgar, Brown University senior fellow and author of Beyond Snowden: Privacy, Mass Surveillance, and the Struggle to Reform the NSA. “The allegation in the Nunes memo is that they were not in this case. There are special problems with the FISA process, which make the allegations more troubling.” We won’t know how troubling until we actually see the Carter Page FISA application, Edgar says, “including what other information was included to support the finding of probable cause.”

Even if we learn that the FBI did mislead the FISA court about Steele and his dossier, that doesn’t mean Robert Mueller’s investigation into Russian interference in the 2016 election is tainted. Those warrant applications began before Mueller was named special counsel. They targeted a former adviser to the Trump campaign, not the campaign organization or candidate himself. But Mueller has a stake in ferreting out misconduct at the bureau. In an interview a few years ago for a book on the FBI and CIA, The Threat Matrix, Robert Mueller told author Garrett Graff that the FBI had to be fastidious and trustworthy in how it shares information. The bureau had “to focus on credibility,” Mueller said, “because it affects people’s lives here in the United States.” Mueller may be in a prime position to judge whether anyone at the FBI or DoJ has abused the FISA process.

There’s also a role for the judges of the Federal Intelligence Surveillance Court. Royce Lamberth, the presiding judge of the FISC from 1995 to 2002, once described the job as making sure “there’s no political shenanigans going on here.” He went so far as to impose a career-crippling banishment of one agent he believed had been playing fast and loose: “We sent a message to the FBI: You’ve got to tell the truth,” Lamberth said.

In a way, Orin Kerr’s argument is compelling: The House Intel Committee memo’s assertion that the FISA court was misled might indeed be a nonstarter under the bottom-scraping standards commonplace in criminal cases. But in the extraordinary context of counterintelligence surveillance of political figures, one would hope for standards more exacting than business as usual.

Eric Felten is a senior writer at The Weekly Standard.