Lack of FISA court hearings on Carter Page warrants sparks fierce debate

After his conservative watchdog group found out Friday, via a filing in a Freedom of Information Act lawsuit, that there were no hearings, Judicial Watch president Tom Fitton said it was”disturbing” that the FISA court “rubber-stamped” the four spy authority warrants on Page.

Trump seized on Fitton’s complaints, as well as that of former Secret Service agent and Fox News commentator Dan Bongino, quoting them in tweets accusing the Department of Justice and the FBI of being “completely out to lunch” instead of fighting corruption and bending to a “police state.”

The revelation added to concerns by Republicans aligned with Trump who have condemned the FBI for relying on the Trump dossier, which contained unsubstantiated claims about the president’s ties to Russia, in their FISA warrant applications, and for omitting that the dossier had Democratic benefactors.

However, there has been fierce backlash to those raising the alarm about a potential scandal because there were no hearings on the Page warrants. Some, including Michael Bromwich, a former inspector general for the Department of Justice and U.S. attorney, stressed that it is “the norm” for there not to be any hearings.

“People who know nothing about law enforcement should not opine on it so glibly. Judges make decisions on warrants — FISA, domestic surveillance, search warrants — on the papers, without a hearing, all the time. That is the norm, not the exception,” Bromwich, who is now the attorney to former FBI Deputy Director Andrew McCabe, said in a tweet.

Michael Avenatti, lawyer to porn star Stormy Daniels, concurred with the assessment that Trump and his allies are complaining about an nonexistent issue. “This demonstrates how clueless Trump is when it comes to understanding the law, how the FISA ct works and who determines whether to hold a hearing & when. How can he be this dumb on an issue he claims to feel so strongly about?” Avenatti said in a tweet.

Joyce Alene, a law professor who served as a U.S. attorney during the Obama years, called the complaints about a lack of a hearing a “Trumpian talking point designed to take Americans further away from the truth.”

David Kris, a former assistant attorney general for national security, shared a 2013 correspondence between FISC and then-Judiciary Chairman Patrick Leahy, D-Vt., which he said shows that formal hearings are not typical.

“Draft applications are submitted a week in advance, and after review by ‘the Court’s legal staff’ the judge makes a preliminary determination ‘to approve…to impose conditions…[to decide] that additional information is needed…or…that a hearing would be appropriate,'” he said while sharing some excerpts on Twitter.

“‘[M]any applications are altered…or…withheld from final submission…often after an indication that a judge would not approve’; the ‘approval rate’ for criminal wiretap applications ‘is higher’ than for FISA; & a sample showed ‘substantive changes’ made in 24.4% of cases,” he continued. “‘The frequency of hearings varies’ with ‘the nature and complexity’ of a case & the judge, but the Court gets information ‘from the government…through telephone conversations [&] meetings’ as well as ‘hearings,’ & ‘typically’ the interaction is via ‘informal communications.'”

These legal experts were backed by Andrew McCarthy, senior fellow at National Review and former assistant U.S. attorney for the Southern District of New York, argued that if a warrant application is not backed by probable cause, then a judge should simply reject it.

Despite the blowback by legal experts, not all were convinced that simply saying that FISA hearings are not commonplace is a good argument, since the Page matter dealt with spying on an American citizen.

“Because FISA courts do not normally hold hearings is not a great defense for not holding one in this case. Suggest court is a rubber stamp,” said veteran TV journalist and Fox News political analyst Brit Hume in a tweet.

He was responding to the Washington Examiner’s Byron York, who tweeted: “Hard to imagine a more atypical case that one involving wiretapping an American over allegations of foreign infiltration of presidential campaign at height of campaign.”

Editor’s note: This report has been corrected to say that the 2013 FISC letter to Congress was sent to former Judiciary Chairman Patrick Leahy, not current chairman Chuck Grassley.