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The Grassley Letter Everyone Is Ignoring Is Way More Important Than the Nunes Memo

Julian Sanchez

It hasn’t been built up by weeks of hype or a fevered social
media campaign, but a letter from Sens. Chuck Grassley and Lindsey
Graham
—sent to the Justice Department in January, and
released in declassified form this week—may be more
significant than the now-infamous #memo #released by Rep. Devin
Nunes earlier this month.

The Grassley letter and the Nunes memo both deal with the same
thing: The FBI’s surveillance of former Donald Trump adviser Carter
Page under the Foreign Intelligence Surveillance Act, and the role
of a controversial dossier on links between Trump and the Russian
government compiled by former British spy Christopher Steele. But
while the Nunes memo has largely been greeted with justified
ridicule, the Grassley letter makes a more direct and serious case
that the FISA warrant targeting Page may have been issued on
insufficient grounds—while at the same time undermining key
aspects of Nunes’ argument.

Grassley’s letter pokes holes in the one truly significant
claim made in the Nunes memo: That the FBI improperly concealed
from the Foreign Intelligence Surveillance Court that the Steele
dossier was part of opposition research underwritten by the
Democratic National Committee. Grassley’s letter confirms the
accuracy of the counter almost immediately offered by intelligence
committee Democrats: That the application did, in fact, disclose
that the dossier’s funders were politically motivated.

More than that, it makes clear that not specifically naming the
DNC was not some aberrant omission, but the result of the common
intelligence practice of obfuscating the identities of people who
aren’t under suspicion. Glenn Simpson of the research firm
Fusion GPS, who directly hired Steele, is referenced only as an
“identified U.S. person.” Even Steele himself does not
appear to have been named: The ambiguous pronoun
“his/her” is used to avoid specifying a gender for the
dossier’s author. The judges who reviewed the application
almost certainly would have recognized Page as an adviser to Trump
and inferred that opposition research concerning him was likely
funded by Democrats—and could easily have asked if they
thought it was necessary to clarify.

But when it comes to the broader question of whether the FISA
wiretap order on Page was adequately grounded in evidence, the
Grassley letter provides more serious grounds for doubt, directly
making several key claims that the Nunes memo only insinuates.
Critically, Grassley and Graham assert that the Steele dossier
formed the “bulk” of the FISA application, and as
important, that the application “appears to contain no
additional information corroborating the dossier allegations
against Mr. Page,” and that the FBI “relied more
heavily on Steele’s credibility than on any independent
verification or corroboration for his claims.”

If the Grassley letter is
accurate, it should provoke a debate, not about whether some cabal
within the FBI had chosen Carter Page as the unlikely vehicle for a
byzantine plot against Trump, but about whether the FISA process is
rigorous enough to protect the civil liberties of all Americans,
including those without high political connections.

The Nunes memo, strangely, never explicitly made this claim,
instead misleadingly quoting former FBI Director James
Comey’s testimony that parts of the dossier were
“salacious and unverified”—apparently a delicate
way of referring to the headline-grabbing allegation that Trump had
been caught on tape with prostitutes. Grassley and Graham focus on
the more relevant question Nunes neglected: Whether the specific
(and not particularly salacious) allegations about Carter
Page
relied upon in the FISA application had been
corroborated.

Much of the rest of the Grassley letter is focused on whether
Steele misled the FBI about the extent of his contacts with the
press regarding his findings, and whether this should have
influenced their assessment of him as credible. These are
reasonable questions to pose, though it’s worth recalling
that warrant applications, especially before the FISA court, are
routinely based at least in part on information provided by sources
with checkered histories and ulterior motives. Whether any of the
facts about Steele outweighed his track record as a reliable
intelligence partner and source of information is a judgment call
that is difficult to assess from the outside and after the
fact.

More important is the question of whether the FBI took adequate
steps to either confirm or refute Steele’s reporting before
seeking a wiretap order. The bureau, after all, has a number of
quite intrusive tools that should have been available well before
the high standard of “probable cause” for a full
wiretap order was met. They could have used National Security
Letters, which require no judicial approval, or Section 215 orders,
which require only a minimal showing of “relevance to an
investigation” to review Page’s financial and
telecommunications records and search for indications that he might
be acting as a liaison or “cutout” between Russians and
the Trump campaign. They would also have been able to plumb a
substantial database of information—including intercepted
communications from Russian intelligence targets—looking for
apparent references to Page. If they were truly relying primarily
on their personal confidence in Steele’s reliability, despite
these myriad means of seeking confirming evidence, one might quite
reasonably regard that as an unacceptably thin basis for seeking a
90-day wiretap of an American citizen.

Neither Grassley nor Nunes really grapple with the critical
question of why, if the evidence was so thin, surveillance on Page
was renewed on three separate occasions, including once during the
Trump administration. Normally, after all, the FISA court would ask
for evidence that the previous three months of wiretaps had
produced some substantive intelligence before acceding to a
renewal. But the question of whether the initial order was
adequately justified is an important one, even if the surveillance
did bear fruit. The Constitution demands that searches be supported
by probable cause before they are carried out, not retroactively
justified by the fact that evidence was found.

If the Grassley letter is accurate, it should provoke a debate,
not about whether some cabal within the FBI had chosen Carter Page
as the unlikely vehicle for a byzantine plot against Trump, but
about whether the FISA process is rigorous enough to protect the
civil liberties of all Americans, including those without
high political connections. This is no longer a question of whether
the FBI concealed information from the FISA court, but of whether
the court looked at a relatively meager body of evidence and signed
off on a wiretap anyway. That wouldn’t imply a personal
conspiracy against Trump, but a deficiency in the mechanism by
which thousands of targeted FISA warrants—more than 300
focused on Americans in 2016—are routinely approved. The
problem, in other words, would not be that the Page application got
exceptionally lax scrutiny, but rather that it didn’t.

Julian
Sanchez
is a research fellow at the Cato Institute.