DANIEL VAUGHAN: After the Nunes Memo, Republicans Should Deliver Accountability

February 5, 2018

There’s an old tale of India where blind men happen upon an elephant. They’d never met an elephant before, and each felt it in different places and described what he felt.

What each man said depended on what he touched. And to a man, they were convinced they had encountered a snake, a wall, and a tree trunk — but never an elephant.

An elephant may share characteristics of the things the blind men described, but it’s still an elephant. The Devin Nunes memo is like one of those blind men.

We get ensured descriptions of serious allegations, but when compared to reality, we’re not getting a full picture. To be sure, there are parts of the memo which should get investigated, but neither Nunes nor the White House is making a case for the real investigation.

The only way to get the full truth is to declassify and release the evidence underlying the Nunes memo. Releasing everything holds the government accountable and restores trust in American institutions.

The Nunes memo deals with an Oct. 21, 2016, FISA (Foreign Intelligence Surveillance Act) warrant sought by Barack Obama administration officials regarding Donald Trump campaign worker Carter Page. The report claims the order was solicited after the now infamous Christopher Steele dossier became known to intelligence professionals.

We know Page is on roughly three pages of the Steele dossier, because Buzzfeed News released it in January 2017.

House Republicans are alleging, among other things, that when seeking a FISA warrant against Page, the FBI and Department of Justice (DOJ) deliberately omitted material facts regarding Steele’s anti-Trump bias, the Clinton campaign funding of the dossier, and political animus.

The problem is that even if you presume every claim in the Nunes memo is valid, that doesn’t impact the Mueller probe or Carter Page.

It doesn’t affect the Mueller probe because Page isn’t a part of that investigation. Nor did the Steele dossier form the basis for the start of the Mueller investigation.

The memo makes the point on the last page that information on George Papadopoulos triggered the counterintelligence investigation that would become the Mueller probe, confirming earlier reports. Any impropriety in the Page FISA warrant would be completely separate from Mueller’s Russia investigation.

The Nunes memo doesn’t torpedo the Mueller probe, it entrenches Mueller.

As for Carter Page, he hasn’t been indicted by Mueller or the U.S. government, so he doesn’t have a claim for a 4th amendment violation. Even if Page were charged, any relief he could receive from the 4th amendment would affect only him.

No one else involved in the Mueller probe could argue the legal theory of “fruit of the poisonous tree,” which invalidates any evidence taken as a result of an unconstitutional search or seizure because that would only apply to Page. In 4th amendment law, lawyers call this right “personal,” meaning it narrowly applies to the person.

This is why both Trey Gowdy and Paul Ryan came out to give their support to Mueller. They know the legal reality that the Nunes memo only helps Mueller, not hurts him.

However, while the narrow question of whether or not Carter Page’s rights were violated is a dead end, the Nunes memo does raise larger concerns about FISA warrants and the process that administers them. And unlike Page, the issues raised here aren’t as easily dismissed.

First, while a FISA warrant regarding Carter Page and his contacts isn’t surprising, the timing is questionable. The Oct. 21 warrant was sought in the last weeks of a political campaign when Clinton’s lead was shrinking in the polls.

The timing is odd because Page had been the subject of previous intelligence investigation in 2013, and apart from the dossier which floated in government and media circles the summer of 2016, he hadn’t been investigated since.

What changed in the three years between 2013 and 2016 with Page to prompt another warrant? We can only speculate about the answer.

We can only know the truth if the FISA application is declassified.

The timing of Page’s odd FISA warrant coincides with the dramatic spike the government reported on unmaskings and modified or rejected FISA applications. Unmasking is the process of revealing the names of U.S. citizens who are caught up in routine surveillance of foreign suspects.

By law, U.S. citizens’ names are protected, or masked, and can only be revealed in certain circumstances. In 2015, only 654 names were unmasked. In 2016, that number exploded to 1,934.

More telling, however, is the numbers surrounding FISA warrants. In a typical year, a FISA court will deny between zero and five warrants requested a year, and the most warrants they’ve ever modified is 94, in 2004.

These numbers are out of the thousands of warrants issued through the FISA process. In 2016, FISA courts denied 34 warrant applications, which came after a stretch from 2010 to 2014 when the court didn’t deny a single application.

The number of modified warrants was even starker. In 2016, the courts requested modifications to 310 applications, while in previous year, it only 80 received such requests. Like the rejections, there are many stretches where the courts never requested any modifications.

Which begs us the question of what changed in the government’s handling of FISA warrants to cause them to fail in a way unlike any time in the past? And why did this failure coincide with a presidential election? In the past, FISA courts have been so lenient on the modification and rejection front that civil libertarians have justifiably accused them of being a rubber stamp.

The assumption from lawyers on the left of abuse is impossible because of checks and balances. But clearly, something shifted in 2016 that’s worth investigating.

When you combine what we’ve learned from the Nunes memo, the numbers mentioned above, and the infamous Peter Strzok and Lisa Page texts, there’s more than enough evidence for Congress to step in and exercise oversight.

And the only way to achieve that oversight is to declassify FISA warrants, redact as needed for national security concerns, and release them to the public. We have to stop guessing at what we’re blindly feeling and describing. Public confidence in our institutions depends on providing oversight and transparency.

Republicans should deliver it.


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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.