House Intelligence Committee Chairman Devin Nunes has sent a letter to
Mr. Magoo Attorney General Jeff Sessions asking him to look into the possibility that the FBI may have broken the law in the way in which it used the Trump dossier manufactured by former British spy and Fusion GPS hireling Christopher Steele.
Nunes cited the Domestic Investigations and Operations Guide (DIOG), which was created by the bureau and approved by the Justice Department, to say he believed the FBI violated procedures requiring verified and documented evidence in applications to the Foreign Intelligence Surveillance Court.
An Oct. 2011 version of the operations guide states that the “accuracy of information contained within FISA applications is of utmost importance… Only documented and verified information may be used to support FBI applications to the court.”
The guidance also states that information in a FISA application must be “thoroughly vetted and confirmed.”
This is a summary reference to the standard Nunes is referring to.
Here's the unredacted version of the FBI Domestic Investigations and Operations Guide subsection on FISA accuracy, which is referenced in NUNES letter to SESSIONS. The Intercept published the guide last year. https://t.co/MH4ozYjhM3 @dailycaller pic.twitter.com/adIzNARfgq
— Chuck Ross (@ChuckRossDC) March 2, 2018
“Former and current DOJ and FBI leadership have confirmed to the committee that unverified information from the Steele dossier comprised an essential part of the FISA applications related to Carter Page,” Nunes wrote Thursday.
Nunes listed five criminal statutes that were possibly violated, including conspiracy, obstruction of justice, contempt of court. It also cites statutes that make it a crime to willfully deprive a person of a right protected by the Constitution and another preventing unauthorized electronic surveillance.
In the letter, Nunes asks Sessions whether these protocols requiring verified information have changed, and if not, what steps the DOJ or FBI taken to hold officials behind the Page application accountable.
As NRO’s Andrew McCarthy, a former federal prosecutor who has worked on FISA cases, notes:
I cannot stress enough how irregular this is. It is why there is abundant reason to demand that the judge explain his or her rationale for granting the warrant.
As I outlined at greater length last week (here, in section C), in applying for a warrant, the government must establish the reliability of the informants who witnessed the alleged facts claimed to support a probable-cause finding. Steele was not one of those witnesses. He is not the source of the facts. He is the purveyor of the sources — anonymous Russians, much of whose alleged information is based on hearsay, sometimes multiple steps removed from direct knowledge. Steele has not been in Russia since his cover as a British spy was blown nearly 20 years ago. He has sources, who have sources, who have sources . . . and so on. None of his information is better than third-hand; most of it is more attenuated than that.
For purposes of justifying a warrant, it does not matter that, in a totally unrelated investigation (involving corruption at FIFA, the international soccer organization), the FBI judged that the hearsay information provided by Steele, then a British agent, checked out. In his anti-Trump research, Steele could not verify his sources. Furthermore, he was now a former foreign intelligence officer who was then working for private clients — which is the advocacy business, not the search-for-truth business.
A judge would need to know whether Steele’s sources were reliable, not whether Steele himself was reliable.
Let that sink in, then think about this contrast: No actual FBI agent, no matter how renowned, would be able to get a judicial warrant based solely on his own reliability as an investigator. Jim Comey, despite having a résumé geometrically more impressive than Steele’s, including Senate confirmations to some of federal law-enforcement’s loftiest positions, would not be given a warrant based on representations to the court that the FBI, the Justice Department, the president, and the Senate all attested to his impeccable reliability.
The only reliability that counts is the reliability of the factual informants, not of the investigator who purports to channel the informants. The judge wants to know why the court should believe the specific factual claims: Was the informant truly in a position to witness what is alleged, and if so, does the informant have a track record of providing verified information? The track record of the investigator who locates the sources is beside the point. A judge would need to know whether Steele’s sources were reliable, not whether Steele himself was reliable.
This is not esoterica. In the investigations biz, this is so basic that to call it “Warrants 101” doesn’t do it justice. If you don’t have witnesses with verifiable, first-hand knowledge, you don’t have anything. Without them, to borrow Director Comey’s notorious dictum, no reasonable prosecutor would bring a warrant application to a federal judge, and no reasonable judge would issue a warrant.
If there is no credible sourcing for the factual allegations in the warrant application, that is a probable-cause deficiency that could not have been cured by the reputation of the purveyor of the sources, no matter how sterling. That said, it is obvious that the less identifiable and reliable the informants are, the greater is the government’s obligation to be transparent in conveying the investigator’s potential biases. The Obama administration’s malfeasance on this point is breathtaking.
Hopefully, Jeff Sessions will take some time out from prosecuting marijuana growers and seizing private property to look into this. If Nunes is wrong, Sessions owes it to the nation and to the National Security establishment to show that the civil right safeguards that are supposed to be a part of FISA are actually observed. (Full disclosure: I don’t believe any court that literally approves 99.97% of all warrant applications is anything more than a rubber-stamp.) If Nunes is right, asses need to be in jail.