Law & the Courts

The Corner

The FBI’s Least Defensible Decision, As Revealed in the Nunes Memo

You’re going to hear a lot of partisan screaming for the next 48 hours about the Nunes memo. But here’s the part that I think matters most, referring to the Department of Justice and Federal Bureau of Investigation seeking a probable cause order authorizing electronic surveillance of Carter Page:

Neither the initial application of October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials.

In other words, the FBI knew that the information it was using to get the FISA warrant came from Fusion GPS and Christopher Steele, who had a partisan motive and an axe to grind. That’s the sort of information that a judge should know before he rules so he can evaluate the request fairly. It seems hard to believe that the FBI and DOJ simply forgot to mention where they got their information.

Let’s imagine the parties were reversed. If FBI officials decided to eavesdrop on Hillary Clinton’s campaign officials because of research by… oh, America Rising, or Jerome Corsi, and then withheld the source of that information from the FISA judge when they sought permission. The reaction from Democrats would be thermonuclear rage, and with good reason! We don’t want the far-reaching apparatus of federal law enforcement and the intelligence community being exploited for partisan objectives.

You may recall that the Washington Free Beacon retained Fusion GPS to provide research on multiple candidates in the Republican presidential primary. The Beacon declared, “all of the work that Fusion GPS provided to the Free Beacon was based on public sources, and none of the work product that the Free Beacon received appears in the Steele dossier.” The Free Beacon lost interest in researching Trump after it became clear he would be the Republican nominee, but in April 2016, Marc E. Elias, a lawyer representing the Clinton campaign and the DNC, retained Fusion GPS to conduct research on Trump. The request for electronic surveillance came on October 21, 2016.

The judge in the FISA case should have been told the source of the information. That judge might have granted the request, or the decision might have been the same.

Already, we’re hearing objections that the entire Nunes memo is “partisan” and thus can’t be trusted. If the portion quoted above is false, I’d like the FBI to say, under oath, that this is the case and ideally to declassify the full text of the FISA applications. Look, either “we got this information from Steele, who was working for the DNC and the Hillary campaign” is in the FISA application or it isn’t. And if it isn’t, the FBI withheld information to get a FISA warrant that it feared it might not otherwise get.

Whatever you think of President Trump, Carter Page, or any of these other figures, it’s bad when the FBI withholds information while applying for FISA warrants.

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