Constitutional Law

Nunes Memo Makes Some Folks Finally Aware of Fourth Amendment

There’s an old saying – “A liberal is a conservative who’s been arrested.” The truth of that saying was made evident with all the hoopla surrounding the release of Devin Nunes’ memo on how the FBI purportedly is Anti-Trump. So first, some background and an outline of how we got here is in order:

What is FISA and the FISA court?
The Foreign Intelligence Surveillance Act of 1978 (“FISA”) is a United States federal law which establishes procedures for the physical and electronic surveillance and collection of “foreign intelligence information” between “foreign powers” and “agents of foreign powers” suspected of espionage or terrorism.The Act created the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants by federal law enforcement and intelligence agencies. The court is actually a tribunal whose actions are carried out in secret. The tribunal has the authority to grant warrants for electronic surveillance. The court has 11 members, all federal judges. The judges serve seven-year terms. The chief justice of the U.S. Supreme court selects the judges. A sleepy little law for the first few decades of its enactment, it has been repeatedly renewed, used and amended since the September 11 attacks. The court is still bound by the application of the Fourth Amendment which requires warrants and protects folks from their searches and seizures without probable cause. It is important to note that the probable cause need for a search warrant or wiretap order is less than the probable cause need for an arrest.

When did this all start?”
In the fall of 2016, FBI investigators applied under FISA for a warrant with the FISC to wiretap Carter Page, a former Trump adviser. They presented evidence that Page may be acting as a Russian agent and the judge approved the warrant. FISA warrants typically require corroboration of the information presented to the judge. The FBI has insisted that it used several sources to corroborate the information presented, but the House GOP Intelligence Services Committee, led by Rep. Devin Nunes (R-CA) believes that the sole source of the information was a document called the Steele Dossier.

What’s the Steele Dossier? The Steele dossier,is a private intelligence dossier of 17 memos that were consecutively written from June to December 2016 by former British intelligence officer Christopher Steele. It contains allegations of misconduct and conspiracy between the Donald Trump campaign and the Russian government before and during the 2016 U.S. presidential election, much of it detailing alleged cooperation between the campaign and Russians to interfere in the election to benefit Trump. Some of the dossier’s allegations have been confirmed, while others have yet to be proved or disproved. Some claims require access to classified information for verification. In February 2017, some details related to conversations between foreign nationals were independently verified. As of yet, however, the dossier’s allegations of collusion have not been corroborated. The dossier was produced as part of opposition research during the 2016 U.S. presidential election. After Trump emerged as the probable Republican nominee, attorney Marc Elias of the Perkins Coie law firm retained American research firm Fusion GPS to conduct opposition research about Trump on behalf of the Democratic National Committee and Clinton presidential campaign. Fusion GPS later contracted Steele to compile the dossier. Following Trump’s election as president, Steele continued working on the report, with funding from Democrats ceasing and financing finally coming directly from Glenn R. Simpson of Fusion GPS. The completed dossier and its information was then passed on to British and American intelligence services.

The Nunes Memo The Nunes memo implies the case involving Carter Page and the Trump campaign was primarily built on the Steele dossier — and points out that it was funded partially by a law firm on behalf of the Hillary Clinton campaign and the Democratic National Committee. Nunes also says investigators misled the judge by not saying they were relying on the Steele dossier. The Nunes memo points out that Deputy Attorney General Rod Rosenstein approved the application for a renewal of the warrant knowing they were relying heavily on the DNC-funded Steele dossier. The memo says Rosenstein knew about the warrant and approved of it. And since Nunes believes the warrant application was mostly from a DNC- and Clinton-funded report, he is trying to imply Rosenstein has an anti-Trump bias. And therefore if he, as a proxy for the Justice Department (specifically the FBI), can be painted as anti-Trump, then Nunes claims it means his hiring of special counsel Robert Mueller had ulterior anti-Trump motives. Nunes argues it means the entire Trump-Russia investigation is happening because some “deep state” officials want to undermine Trump and take him down, and it’s not being conducted on its own merits.

I heard there was a secret court . . .

Why is the Nunes argument flawed?” For a few reasons. (1) Nunes now has admitted that he did not even read the underlying documents or the application for the FISA warrants so that he can’t say if in fact the warrants were only based on the Steele dossier. (2) The FBI, including its current Trump-Appointed head Christopher Wray, have said that while they cannot release the Top Secret underlying documents, the Nunes memo paints a false narrative and that releasing it was reckless since what it states is wholly out of context and incomplete. (3) The investigation was started before the creation of the Steele Dossier. (4)In Nunes’s memo, he admits that the piece of evidence that triggered the FBI investigation was information from former Trump campaign advisor George Papadopoulos. So how could the Steele Dossier be the sole source of corroboration for the warrant? (5) As former FBI special agent and current Yale Law professor Asha Rangappa writes “The Nunes Memo reportedly alleges that at least a dozen FBI agents and DOJ prosecutors fabricated evidence, engaged in a criminal conspiracy to commit perjury, lucked out on being randomly assigned some Low Blood Sugar judge who looked the other way, and — coincidentally — ended up obtaining evidence that justified extending the initial FISA surveillance. If Nunes has in fact singlehandedly uncovered this vast criminal enterprise, it’s hard to know what’s more astonishing: That a government bureaucracy managed to pull it off — or that Nunes has exposed it all in a scant four-page memo.” (6) If the information in the Steele Dossier was reliable and led to new information, what does it matter that it was DNC or Clinton funded? In a series of tweets, Republican Rep. Trey Gowdy – no fan of Hillary Clinton and the DNC – said that the memo raises questions about the FISA application process, but does not undermine Mueller’s investigation: “The contents of this memo do not — in any way — discredit his investigation.”(7) As Professor Rangappa reminds us, the FISA surveillance was renewed – something that cannot occur without some evidence being found to warrant its continuation.

What’s wrong with the outcry from the right?” Well first of all, see above. Second of all, the GOP has refused to allow release of the Democratic memo which refutes and contradicts the Nunes memo. The Dems don’t have the votes to release the memo which is also branded Top Secret. And DOJ does not want anyone to release the Top Secret underlying documentation of what was actually shown to the FISC. So we are only getting a small piece of the whole story. Third of all, where was this righteous indignation when when the House voted 256-164 to extend a controversial piece of legislation that provides for a warrantless surveillance program that at times targets American citizens. The law, part of FISA known as Section 702, is a loophole that provides for the surveillance of American citizens in the course of spying operations on foreign targets. The House bill extends the legality of the surveillance program for six years, allowing the NSA and other intelligence agencies to continue their warrantless surveillance practices without impediment. The vote in the House largely split along party lines, with Democrats opposed. As someone who practiced criminal law almost exclusively from 1990 – 2006, I can tell you that Federal and State courts issue wiretap and search warrants on third party hearsay evidence with scant corroboration. Even when that information comes from rival parties. You think a Federal judge would not sign a warrant to wiretap a Crip house because the info on the house came from a member of the Bloods gang? All the FBI or DEA agent has to say is that the info is consistent with whatever else he learned and that he has no information to refute the informant;s intel. Boom, warrant signed. Happens everyday, 100 times a day in courts all over the country. Criminal defense layers , the ACLU and countless other human rights organizations have been railing against the FISA warrants for years. Not only did the House extend the warrantless surveillance described above, it rejected amendments offered by Dems that would have made it harder to conduct surveillance on American citizens. GOP senators and House members have not shed a tear over the men who have been held in Guantanamo as “enemy combatants” for years and years without a hearing or trial. Now all of a sudden they are “Shocked! Shocked to find that a warrant was issued when the source came from an opposing campaign!!” That’s like worrying about a splinter when you have Stage 4 pancreatic cancer.

So what this is – and make no mistake about it – is an attempt to add doubt to the Mueller investigation and to give the President the ability to say he was vindicated by the Nunes memo. It is not a concern that the FISC has trampled on the Fourth Amendment rights of Carter Page and others. But maybe I’m wrong. Maybe my friends on the right are truly alarmed at how easily the Fourth Amendment can be gotten around. I always thought they stopped reading the Constitution after the Second Amendment.

Follow me on Twitter @oscarmichelen

2 replies on “Nunes Memo Makes Some Folks Finally Aware of Fourth Amendment”

Oscar – Your essay encapsulates perfectly the scope and appropriate analysis of the GOP’s self-created controversy. Not that I attach credence to anything House Intelligence Chairman Nunes does, but if he had sincere concerns over law enforcement’s sources and methods, he would have followed proper protocol and referred the matter to the Inspector General. The question I have is whether his staffers were joined by White House staffers in the creation of this poorly written half-baked memo. Great work, Oscar! Mike

Fascinating post and comment in light of the recent firing of McCabe as recommended by the Obama administration appointed Inspector General. This house of cards is in danger of collapsing as the folly of politicizing the Justice Department becomes evident again. The Nixon Administration mythology as consumed by the wiz kids of the previous administration has set them upon for epic hubristic fall. They would have seen this coming had they been required to read basic western civilization literature as freshmen.

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