With the release of the Nunes memo now up to Donald Trump, it’s a matter of days—at most—before the public will be handed a copy of a document that Republicans created specifically to discredit the FBI. Pundits are already using this lopsided narrative to create hugely inflated claims about the significance of the document, and Republicans are blocking every means of looking at the underlying information … so what can anyone use to both combat the Republican narrative and determine if there’s any truth at all behind the Nunes memo’s claims?
The website Just Security, from the New York University School of Law, has the answer. An article from Asha Rangappa doesn’t try to refute the contents of the as yet unseen memo. Instead, it identifies tell-tale items within the memo that will indicate whether there’s any fire behind all the smoke.
If the Nunes Memo does not indicate when the investigation underlying the Page FISA application was opened or how many months/years of investigative activity preceding the dossier is detailed in the Page FISA application, it is not telling a sufficiently complete or accurate story. …
Alleging a concerted conspiracy by the FBI/DOJ in obtaining the Page FISA necessarily implicates the judge who approved it, and suggests they are incompetent (at best) or corrupt (at worst). If Nunes is alleging serious crimes on the part of the FBI and DOJ, he must put his money where his mouth is and identify the judge who approved the FISA application. If he doesn’t, it’s likely because even he knows that this would be taking his accusations too far.
Rangappa’s article includes five such tests that should inform every analysis of the memo. It also includes some of the best, most-detailed information on what it means to actually obtain a FISA warrant that you’ll find anywhere.
It’s a should-read for everyone with an interest in the process, and a must-read for any pundit inclined to make statements about either the memo or the underlying warrant.
Because the memo appears to paint the picture of a runaway FBI, where just a few people were able to misdirect the entire agency, the article’s information on how a FISA warrant is actually obtained, what it means, and how it’s used is absolutely vital knowledge.
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.
When the memo is released—as it almost certainly will be—this list will be revisited to determine just how much actual information is contained. But one of the biggest problems with the memo can be checked even before the memo is released.
In sum, the Nunes Memo reportedly alleges that at least a dozen FBI agents and DOJ prosecutors fabricated evidence, engaged in a criminal conspiracy to commit perjury, lucked out on being randomly assigned Judge Low Blood Sugar who looked the other way, and – coincidentally – ended up obtaining evidence that justified extending the initial FISA surveillance. ... And despite this widespread and outrageous conduct, the current Assistant Attorney General, a Trump appointee, wrote Nunes about the memo to say, “we are currently unaware of any wrongdoing relating to the FISA process.”
Asha Rangappa is a former FBI agent working on counterintelligence who has actually been through this process. On the other hand, Devin Nunes did not even read the classified information on which his memo is based.
The Republican lawmaker who spearheaded the campaign to release a classified memo critical of the Justice Department and the FBI "cherry-picked" the document's contents without reading all the source material, a top Democrat charges.
One of these people is concerned with accurate information. The other is concerned with scoring political points, no matter the cost.