Posts tagged “Nunes memo

FBI’s Use of Fusion GPS Dossier Problematic

Since the release of the Nunes and Grassley memos, several readers of the Spingola Files have inquired about the nuances of obtaining warrants from a court to search for evidence or to eavesdrop on electronic communications.

Based on these memos, news reports, and statements of investigative journalists, we know that, in the summer of 2016, the upper echelon of the FBI sought to obtain a court order to eavesdrop and monitor four members of “the Trump team suspected of irregular contacts with Russian officials.” An application to conduct intrusive electronic surveillance of the Trump campaign was made to a secretive Foreign Surveillance Intelligence (FISA) court; however, the judge declined to sign the warrant, and instructed the FBI to “narrow its focus.”

To the chagrin of its judges, civil libertarians often refer to FISA courts as “rubber stamps.” From their inception in 1979 through 2015, FISA courts have rejected just twelve of 38,169 warrant requests.

One reason search warrants and court orders are rarely rejected by judges in FISA or civilian courts is the supporting documents — typically affidavits and/or sworn testimony — are thoroughly reviewed by prosecutors or other high-level government attorneys prior to judicial review. To have a search warrant or court order rejected during a judicial review is not only embarrassing, but an indication of ineptitude or jaundice on the part of the government attorney who signed-off on the application.

In law enforcement circles, an ethical investigator or prosecutor would take any additional requests for court orders pertaining to the same target(s) back to the judge who initially rejected the request. If, for some reason, the initial judge is unavailable, an ethical agent would advise the reviewing judge that the initial request for a court order had been denied. To do otherwise is called “judge shopping,” an unethical practice of seeking out judges with a reputation of giving greater consideration to the government. At this point, we do not know if the FBI took any subsequent request for court orders regarding the Trump team back to the initial judge.

This is where the FBI’s eavesdropping of the Trump transition team gets interesting. Based on the aforementioned memos, its seems the FBI sought to beef up its previously denied FISA court application with the Fusion GPS dossier, a document that contains “salacious” and “unverified” allegations pertaining to candidate Trump. We also know the FBI used a media report from Yahoo News in its affidavit at the FISA court. However, it appears the Yahoo News story consists of sourced information leaked to the news outlet by Christopher Steele, the former British spy who compiled much of the Fusion GPS “Trump dossier.” Steele’s services were underwritten by the Hillary Clinton campaign and the Democratic National Committee.

What we do not know is what the FBI told the FISA court during its application and renewal applications for an order to eavesdrop on Carter Page, an American citizen who had done volunteer work for the Trump campaign. Did the FBI tell the judge, in writing or verbally, that the Fusion GPS dossier was actually a document paid for by the Democrats? Did the FBI represent foreign national Christopher Steele as a credible, unbiased source? Did the FBI explain to the court that Steele leaked much of the information obtained from the Yahoo News article used in its affidavit?

Even more troubling are the details from the Grassley memo, which state “a friend of the Clintons,” and other “Clinton associates” passed information to Steele, which became a part of the Fusion GPS dossier. In other words, the Grassley memo alleges that Hillary Clinton’s campaign and the DNC, in effect, paid for and supplied some of the contents of an FBI affidavit used to monitor the Trump campaign.

Though many of the aforementioned questions have yet to be answered, a hunch tells me there is a FISA court judge out there who believes the upper echelon of the FBI, and possibly some high-ranking members of the DOJ, may owe him or her an explanation.