Nunes memo released: What you need to know about the document rocking Washington

The FBI is adding its voice to the chorus of those opposed to the planned declassification of the so-called Nunes memo, expressing 'grave concerns' over its accuracy. Nathan Rousseau Smith (@FantasticMrNate) reports.

WASHINGTON - The House Intelligence Committee on Friday released a classified memo that accused the Justice Department and the FBI of abusing top-secret surveillance to spy on an adviser to President Trump's campaign. 

The memo was written by Republican staff members on the House Intelligence Committee at the direction of its chairman, Devin Nunes, R-Calif. The panel voted Monday along party lines to release the classified memo. President Trump, who has accused the FBI and Justice Department of political bias, declassified the memo. 

Here we break down what you need to know about the document rocking Washington: 

What does the memo say? 

The memo alleges that a salacious "dossier" prepared by former British spy Christopher Steele "formed an essential part" of a government request to eavesdrop on Carter Page, who was then a foreign policy adviser to Trump's presidential campaign.

The Justice Department, according to the memo, did not reveal to the court that approved the surveillance that Steele's work was funded by the Democratic National Committee, which it said was paying "to obtain derogatory information on Donald Trump's ties to Russia." 

It alleges that Steele told a Justice Department official, Bruce Ohr, that he was "desperate that Donald Trump not get elected." It said Ohr's wife was employed by the consulting firm Fusion GPS, which hired Steele, a fact that also was not shared with the court that approved 

Andrew McCabe, then the second-in-command of the FBI, told the House Intelligence Committee in December according to the memo apparently said that "no surveillance warrant would have been sought" absent the information Steele provided. But it offers little information about what other information the government might have relied on in its surveillance application.

Let's back up. How can the government spy on Americans? 

The Foreign Intelligence Surveillance Act (FISA) is a law that allows the government to eavesdrop on Americans for national security purposes.

To do that, the government must persuade a judge on the Foreign Intelligence Surveillance Court that it has evidence to think that the person is working as an agent of a foreign power, is working on behalf of a government that conducts intelligence gathering in the United States, or is engaged in international terrorism.

According to the memo, the government began eavesdropping on Page in October 2016, and extended the surveillance three times. One of the requests was approved by Deputy Attorney General Rod Rosenstein, a Trump appointee; another was approved by Dana Boente, who FBI Director Chris Wray recently selected as his chief lawyer.

Aren't these orders normally secret? 

The details of FISA surveillance orders are classified, and they have long been among the government’s most carefully guarded national security secrets.

This is one reason why the memo's release is so extraordinary. Trump declassified the memo on Friday, after the intelligence committee voted to release it under an arcane House rule. 

Other parts of FISA – including one Congress and Trump re-authorized in January – permit the government to spy on people overseas or to force business to turn over their records.

What does it take to get a FISA order? 

Unlike other types of government surveillance, FISA applications must be approved by a senior FBI officials and either the attorney general, the deputy attorney general or the head of the Justice Department’s National Security Division.

They are supposed to lay out enough evidence to show “probable cause” that the target is an agent of a foreign power, and that the eavesdropping is needed to gather intelligence information.

That legal standard is essentially the same as the one courts use when approving routine search warrants and wiretap orders in criminal cases. It is a comparatively low bar; it essentially requires that the government produce only enough facts that a reasonable person would think that a search would turn up evidence of a crime.

The surveillance court seldom turns down the government’s applications. But in 2016, it turned down more requests – 34 – than in any year since FISA was approved in 1978, according to statistics maintained by the Electronic Privacy Information Center. Lawyers who have participated in that process said that is because FISA applications typically far exceed the law’s minimum requirements.

Does the memo provide actual evidence of wrongdoing? 

Not necessarily.

Neither FISA nor federal courts have set hard-and-fast rules about how much information the government must provide about its sources. “There is no ‘always,’” said Orin Kerr, a University of Southern California law school professor. “Everything is case by case, totality of the circumstances.”

Federal courts have said for decades that the Fourth Amendment prohibits the government from leaving out “material” information when it applies for search warrants and wiretaps, and the same standard would apply to FISA.

In practice, it means that warrant requests cannot leave out information that so badly undermines the application that a judge would have denied them permission to search had it been included. Although it is not unusual for suspects to argue that the police should have told judges about the baggage of their informants — spurned girlfriends, rival drug dealers, tax cheats and others — they seldom succeed in persuading courts that the surveillance was illegal. 

Carrie Cordero, a former Justice Department national security lawyer, said that in FISA applications, like applications for routine search warrants, typically include some assessment of a source’s reliability. How much depends on how much of a role their information plays in showing that the government has enough evidence to proceed.

“If it was central to the probable cause, then I would suggest more disclosure would be appropriate; if it was one fact and one source among many, then maybe not. It’s fact-specific,” Cordero said.

Has this come up before? Can you give me some examples?  

In 2012, a Chicago police officer got a search warrant for a woman’s house where he said he had seen marijuana plants growing. He didn’t mention the fact that he was the woman’s father-in-law, that he had helped her grow the drugs, or that days before they had a “bitter conflict” over religious displays at her son’s funeral.

But the U.S. Court of Appeals for the Seventh Circuit ruled that none of that mattered. The officer might have been motivated by “spite, his desire to see his daughter-in-law arrested just four days after the death of her child,” but he still put forward enough evidence that there was marijuana in the basement to justify a search warrant.

In other cases, federal appeals courts have said it didn’t matter that agents left out of their warrant applications the fact that an informant was a federal fugitive they had decided not to arrest, or that one had “perjured himself, lied, had been arrested, and failed to pay income taxes.” In some of those cases, courts said it was enough that agents described their sources’ biases in general terms; in others, they said the omissions didn’t matter because the government’s search application contained enough other evidence.

Kerr said judges expect that informants are “typically – or at least often – unsavory characters.”

OK, so is this memo a big deal?  

In Washington, it's certainly becoming one, and it depends on who you ask. Hours before the release on Friday, Trump accused the top leadership and investigators at the FBI and Justice Department of politicizing "sacred investigative process in favor of Democrats and against Republicans." As the memo was released, Trump told reporters: "I think it’s a disgrace." 

House Republicans are also seizing on the memo's release. "For FISA surveillance to be used for partisan political gamesmanship is nothing less than an assault on democracy itself," said Rep. Matt Gaetz of Florida. "The DOJ and FBI spied on American citizens associated with the Trump campaign based on the unverified claims made in a dossier paid for by the Clinton campaign and the DNC. This is repugnant on every possible level."  

Yet the top Democrat on the House Intelligence panel, Adam Schiff of California, has described the Republican memo as "a profoundly misleading set of talking points" that is "rife with factual inaccuracies" designed to undermine the FBI and DOJ – and special counsel Robert Mueller's ongoing investigation into Russia's election interference and possible collusion with Trump associates. Schiff is one of two lawmakers on the panel who has reviewed the Justice Department records on which the memo is based.

What does the FBI think? 

In an extraordinary statement this week, the FBI expressed "grave concerns"about "material omissions of fact that fundamentally impact the memo’s accuracy." The Justice Department, in a letter to Nunes, said releasing the memo to the public would be "extraordinarily reckless." 

What role did FISA play in Mueller's investigation? 

Nunes’s memo gave no indication of how significant a role the FISA surveillance played in Mueller’s investigation, and there have been few other public clues.

So far, prosecutors working for Mueller have brought charges against four people, including former Trump campaign manager Paul Manafort and his former national security adviser, Mike Flynn. A campaign foreign policy aide, George Papadopoulos, acknowledged last year that he had lied to the FBI about his contacts with a person he believed to be connected to the Russian government who was offering “dirt” on Trump’s political rival, Hillary Clinton. Flynn pleaded guilty to lying to investigators about his contacts with Russia’s ambassador about sanctions designed to punish the Russian government for election-year meddling.

None of the cases has made any mention of Carter Page or what, if anything, investigators uncovered during the surveillance. But prosecutors have given some signals that their investigation continues. On Wednesday, they asked a court to further delay a sentencing hearing for Flynn, who has promised to cooperate with the special counsel investigation. 

Contributing: Kevin Johnson, Erin Kelly 

© 2018 USATODAY.COM


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