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Nunes memo fails to make legal case against the FBI

Legal analysis

The House Intelligence Committee on Friday made public a Republican memo that questions the issuance of a FISA warrant for surveillance of former Trump campaign aide Carter Page.

The main point of the memo is this: The public's faith in the FISA process, and the courts' protection of individual rights, "is necessarily dependent on the government's production to the (FISC) court of all material and relevant facts," including "information potentially favorable to the target of the FISA application that is known by the government." In the Carter Page case, the memo suggests that the FISA warrant application was improper because "material and relevant" information was omitted.

This thesis of the memo, compiled by House Intelligence Committee Chairman Rep. Devin Nunes, R-Calif., is an idealistic vision of the FISA process. It's just not legally accurate.

Cevallos: Nunes memo is 'just not legally accurate' 4:17

There is no requirement that the government include "all material and relevant facts" in a FISA warrant application. Nor is a warrant automatically invalidated if exculpatory or favorable information is omitted from an application.

To obtain a FISA warrant in the Foreign Intelligence Surveillance Courts (FISC), the government must establish (among a list of other things in the statute) "probable cause" that (A) the target of the surveillance or search is an agent of a foreign power, and (B) the places to be surveilled or searched are used by an agent of a foreign power.

This "probable cause" standard is different — and lower — than the same standard in typical criminal cases. A criminal warrant application requires a probability that a person has committed a crime. FISA only asks if it's likely that a target such as Page is an "agent" of a foreign power.

The FISC process, like the one used to obtain the Page surveillance order, is both "in camera" (secret) and "ex-parte" (one-sided). The application is prepared by the Executive branch; the target or defendant has no say. Indeed, the target usually has no idea it's happening. In that sense, all the information that goes into a FISA application is "biased" — in favor of the Executive branch members making the application. It's designed that way by statute.

This raises a constitutional question: What if all the secret, unchallenged information that supported issuance of a FISA order was incomplete, biased or outright false?

It's not a hypothetical question. Federal courts have acknowledged that material misrepresentations frequently find their way into FISA applications. One federal appeals court recounted "the government's confession that 75 prior FISA applications related to major terrorist attacks directed against the United States contained misstatements and omissions of material facts (concerning such topics as whether the target of FISA surveillance was under criminal investigation, whether overlapping criminal and intelligence investigations were being appropriately compartmentalized in terms of information-sharing, and the prior relationship between the FBI and the FISA target)." That disclosure led the FISC to bar one FBI agent from ever appearing before the court again.

In Franks v. Delaware, the Supreme Court articulated a test for invalidating search warrants based on the veracity of the information used to obtain them. Although the regular criminal process is very different from the FISC process, a FISA order qualifies as a "warrant" for purposes of the Fourth Amendment, which means FISA applications are subject to "Franks" challenges.

It's heavy burden for a challenger in regular criminal court; in FISA court, the Franks burden is almost insurmountable. An Executive branch officer must have (1)(a) intentionally or recklessly included a false statement or (b) omitted material facts in the FISA application; and (2) that the misrepresentation was essential to the finding of probable cause. That means once the tainted information is excised, the remaining information in the application would have been insufficient to support the warrant.

The memo alleges the government omitted facts about Christopher Steele, a former British spy, and his anti-Trump dossier in the FISA applications for Page. Omissions in an application, without more, will not invalidate FISC orders.

In fact, omissions from a warrant application are less constitutionally problematic than affirmatively false statements. The omitted facts must be so significant that including them in the application would have defeated the probable cause determination. An omission that is just potentially relevant or favorable does not automatically invalidate the FISA order.

The memo alleges the Steele dossier was an "essential part" of the FISA application. That could satisfy the Franks requirement that it was necessary to the probable cause finding. But, to complete a Franks challenge, it would also have to be intentionally or recklessly false.

The fact that the dossier may have been biased is just not enough. In fact, biased information is a hallmark of warrant applications. Confidential informants are often biased against the target. They have to supply damaging information about the target in order to get favorable treatment in their own criminal cases.

A failure to disclose the backgrounds and biases of informants does not, by itself, establish a reckless disregard for the truth. In certain circumstances, however, an informant's overpowering bias can be too crucial to omit from the application.

The memo alleges that Steele was paid by several entities, including the FBI. It also alleges that the FISA application ignored or concealed Steele's anti-Trump financial motivations.

Paid informants are a common feature of government investigations; they are hardly grounds for invalidating a warrant. Omission of an informant's financial motive, or the even fact that he was paid, is not necessarily essential to the probable cause determination if the rest of the information is extensively corroborated. Without seeing the application, it's hard to say if it's "corroborated."

According to the memo, the Page FISA application cited extensively a Sept. 23, 2016, Yahoo News article by Michael Isikoff, which focused on the target's 2016 trip to Moscow. The memo alleges this article does not corroborate the Steele information, because the article is the product of information from Steele himself. Legally, this is only significant if both the article and the dossier are false, they were intentionally or recklessly included, and were necessary to a finding of probable cause.

The memo doesn't outright claim that the information gleaned from the Steele dossier is and was recklessly used. It comes very close, calling it "minimally corroborated" and "salacious and unverified." To attack a FISA order as unconstitutional under Franks, the information would have to be closer to "demonstrably false."

The memo also says that Deputy FBI Director McCabe's 2017 testified that no information would have been sought from the FISC without the Steele dossier information. The mere fact that the dossier might have initiated the government's curiosity about Page doesn't mean the FISA application itself was composed of recklessly false statements.

The government frequently starts with dubious information which can spark curiosity, or lead to an investigation, where that information itself would fall short of establishing probable cause. As long as the rest of the information in the application met the requirements of FISA, what originally interested investigators about the target won't matter legally.

Ultimately, it's possible that the Steele dossier information contained in the Page FISA application was completely false. If so, it's additionally possible that the government recklessly included the false statements in the application. Then, it's further possible that those falsities were essential to obtaining the FISA order.

If all that's true, the FISA order might have been constitutionally infirm. But this just isn't clear from the Nunes memo alone. We'd need to see the FISA application. And under FISA, that almost never happens.

Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.