Five Questions the Nunes Memo Better Answer

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1. When did the FBI open an investigation on Carter Page?

It’s important to understand that just because the FBI receives information (like the Steele Dossier), the Bureau cannot immediately run to a FISA court and obtain a warrant. A FISA warrant itself does not make a “case;” rather, it’s an investigative tool used in support of an existing national security case, one that normally would have been opened months, if not years, prior. In fact, FISA warrants can be approved only for what are called Full Investigations. These are the most serious class of investigations within the FBI and require an “articulable factual basis” to open: For counterintelligence cases on U.S. persons (USPERs), these cases involve facts demonstrating that the subject is in contact with and working on behalf of a foreign intelligence service. That means that, at some point prior to obtaining the FISA warrant, the FBI opened an investigation on Carter Page, obtained enough factual evidence to justify making it a Full Investigation, and would have done enough investigative activity to be able to put together a FISA application.

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2. Who in the DOJ conducted the Woods Procedures on the FISA application?

Here’s where the rubber meets the road in the FISA process. Even if the FBI were inclined to put together a slipshod FISA application, they can’t sneak it into court without going through a bunch of lawyers at DOJ. I’ve outlined the entire process previously, but it’s the careful vetting process conducted by the National Security Division known as Woods Procedures – named after the lawyer who developed this in-depth review, Michael Woods – where every fact contained in the application is verified. And by every fact, I mean every fact. To use a very straightforward example, say the FISA affidavit asserts that the target took a flight on a certain day. During the Woods Procedures, the agent would have to show the NSD lawyer the underlying case file, where the agent would have previously obtained, say, the passenger flight manifest for that flight from TSA and/or entry-exit information from USCIS to corroborate the assertion made in the affidavit (and a very good NSD lawyer would have the agent include that information in the affidavit itself). The same would have to be done with human source reporting, meaning that the FBI would use information gathered through different means to corroborate a source’s assertions. Can’t corroborate it? It doesn’t go in.

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3. Who was the federal judge who approved the memo?

Here’s where the Nunes conspiracy theory gets really dicey: For it to be true, it necessarily involves members of the federal judiciary. This is because when all is said and done, the FISA judge – one of 11 district court judges who sit on the FISA court in rotation (and who were appointed by Republicans and Democrats) – makes the ultimate call. The current talking points from GOP House members who have seen them memo and buy its contents suggest that Nunes has attempted to get around directly implicating a federal judge in a conspiracy by suggesting that s/he got “tricked” by the wily FBI/DOJ. In other words, the FBI and DOJ just happened to be assigned a judge who skipped breakfast and was running on such low blood sugar that they just didn’t pay attention to the details of a FISA application asking to surveil a USPER who just happened to be a former national security adviser to a current U.S. presidential campaign. Right.

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4. Was the FISA warrant ever extended?

This is a critical question, because even if the FBI managed to “dress up” the dossier without any other supporting evidence, bypassed the vetting procedure, and got past a federal judge, the most they would get for all of this work is three months of surveillance. This is because when a FISA order is obtained on an USPER, the FBI must go back to the FISA court (perhaps before a different judge than the first time) within 90 days and demonstrate that the surveillance has, in fact yielded foreign intelligence substantiating the original probable cause alleging that the target is engaging in clandestine intelligence activity on behalf of a foreign power. If the FBI cannot show this evidence, the surveillance is terminated.

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5. Has Robert Mueller used anything derived from the FISA in his investigation?

Anything that happened with regard to the original application for the Page FISA order would have occurred months before Mueller was even appointed as Special Counsel for the Russia investigation. Mueller, by all accounts (including my own experience having worked in the FBI under his leadership) does not tolerate nonsense. In taking over the investigation, he would have vetted all the underlying evidence that had been gathered so far, including anything gathered from FISA orders and the underlying basis for obtaining them. Let’s remember: This is someone who booted a highly seasoned counterintelligence investigator, Peter Strzok, based on text messages surfaced that could create even a perception of bias. We know that Mueller sent FBI agents to interview Carter Page: It’s hard to believe that he would have proceeded in any way on Page if he was aware that the underlying investigation to that point had been based on anything but legal, corroborated information.

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