FISA and the Nunes Memo

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Lawyer 2 Lawyer – Law News and Legal Topics

FISA and the Nunes Memo

02/09/2018

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John Malcolm: In terms of disclosing how we engage in national security investigations or imperiling the integrity of any future national security investigations, I think that that was raised, but I don’t think it’s justified.

Bob Anderson: The memo is six pages in length, four or three-and-a-half if you really look at it that was actually of substance, I don’t think helped this matter at all. I think it has caused greater confusion around the country.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from a very sunny and warm Southern California. I write a legal blog named May it Please the Court and have a book out titled The Sled.

Bob Ambrogi: This is Bob Ambrogi and Craig, you keep rubbing it in, it’s snowing up here in the Boston area today, but you have got to remind me that it’s sunny and warm in Southern California. But I write a blog called LawSites and I also do another show here on the Legal Talk Network called Law Technology Now.

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Bob Ambrogi: Craig, last week a memo was released to a lot of controversy created by Republican staffers and House Intelligence Chairman Devin Nunes alleging abuse of surveillance authority by the Justice Department and the FBI. It was released after being declassified by President Trump.

In a nutshell, the Nunes Memo alleges that the FBI may have relied on “politically motivated or questionable sources” to obtain a Foreign Intelligence Surveillance Act or FISA warrant in the early phases of the FBI’s investigation into Russian interference in the 2016 elections.

J. Craig Williams: Well Bob, prior to release of that Memo, the FBI warned that they have grave concerns about material omissions of fact that fundamentally impacts the Memo’s accuracy. So could this controversial Memo actually undercut the Russian probe by citing bias by the FBI and the Justice Department or otherwise and what will be the overall impact on the law in the views of the general public?

Bob Ambrogi: Today on Lawyer 2 Lawyer our topic is the Nunes Memo, the FISA Court, the legalities and political firestorm, I guess you could call it, surrounding this release.

To help us talk about this today we have two great guests. Let me begin by introducing the first of them and he is Robert E. Anderson, Jr. Robert is Managing Director of Navigant. He served with the FBI for over 20 years before joining Navigant. He is a recognized expert in cybersecurity, incident response, cyber hacking, counterintelligence, and economic espionage. He is an expert in theft of proprietary/trade secrets investigations.

Welcome to Lawyer 2 Lawyer Bob Anderson.

Bob Anderson: Thanks for having me today.

J. Craig Williams: And our next guest is John Malcolm. He is the Vice President of the Institute for Constitutional Government for The Heritage Foundation. He is Director of the Meese Center for Legal and Judicial Studies and Senior Legal Fellow.

Before joining Heritage in 2012, John was a General Counsel at the U.S. Commission on International Religious Freedom as well as a distinguished Practitioner in Residence at Pepperdine Law School.

Welcome to the show John Malcolm.

(00:05:02)

John Malcolm: Yeah, it’s good to be with you. I suppose more germane to our discussion, I was an assistant US attorney for seven years and a Deputy Assistant Attorney General for three years in the criminal division at DOJ. But the other things that you said about me are also true and it’s a pleasure to be with you.

J. Craig Williams: Well good.

Bob Ambrogi: All true.

J. Craig Williams: Well, since that is a little bit more apropos, then how do you think that justice is taking a look at this Memo and all the concerns that have been expressed so far?

John Malcolm: Well, look, it’s very, very early days and there was more information frankly released today and there will certainly be more in the days to come. So the Nunes Memo came out on Friday. It’s a fairly short Memo. It’s only about four pages and while I don’t think that it’s smoking gun; I don’t agree with the President that this somehow vindicates him. It was suggestive of potential bias and at the very least a little bit of sloppiness on behalf of the FBI in terms of its presentations to the FISA Court.

Today actually, Chris Wray, the current FBI Director, and I used to work for Chris, he declassified a lot of information in a memorandum that was attached to a referral letter to the Department of Justice by Chuck Grassley and Lindsey Graham referring for an investigation into Christopher Steele for lying to the FBI. There were very significant bits of information in that memorandum and of course we are waiting the release, assuming it will be released, of the Schiff Memorandum, which is the Democratic rebuttal to the Nunes Memorandum.

Bob Ambrogi: Robert Anderson, Bob Anderson, you were at the FBI, you worked under Bob Mueller, isn’t that right?

Bob Anderson: Oh yeah, I worked under three Directors; Louis Freeh, Bob Mueller, and then Jim Comey, before I retired at the end of 2015.

Bob Ambrogi: So one of the initial questions is whether this Memo should have been released in the first place. What’s your position on that Bob?

Bob Anderson: Well, I can tell you from, one, testifying in FISA Court probably a 100 times and then later on in my career when I became the Assistant Director of Counterintelligence and then later as the Executive Assistant Director running two-thirds of the FBI, it absolutely falls outside of the policies and procedures that are set by the House and Senate Intelligence Committees; they are the direct oversight for counterintelligence and national security for counterterrorism in some cyber cases.

And I can tell you from running Ed Snowden and other very complicated, sophisticated cases that when we go up to brief the Congressmen and Senators in these cases, it’s some of the most classified information that you will ever see, and what startled me about this is there is procedures and policies in place within these committees that if anything appears to be outside of the norm of violating policies or procedures, that’s why they are there and it can be handled in a classified setting.

And as John said earlier, I agree with him, the Memo, six pages in length, four or three-and-a-half if you really look at it that was actually of substance, I don’t think helped this matter at all. I think it has caused greater confusion around the country.

Bob Ambrogi: So does the release undermine the investigation in any way do you think?

Bob Anderson: Me personally, I don’t think it’s going to slow down Bob Mueller one second when it comes to the investigation that he is doing. I worked for him for the 12 years he was the Director and as you guys know he was the longest sitting Director since Hoover; he actually got an extension of two years by President Obama. And I think if anything it locks in that the investigation that he is working on was founded way outside the scope of this initial FISA and I don’t think it really does anything to hamper that.

John Malcolm: Yeah. If I could weigh in, I want to in part agree with what Bob just said and then in part disagree. I also know Louis Freeh and I was at DOJ when Mueller was there and know him and Jim Comey was the Deputy Attorney General when I was there, so I know him too.

So I certainly agree with him, I do not think that this is going to disrupt the Mueller probe. Bob Mueller has a long and distinguished career in law enforcement, both as a line prosecutor or political appointee at the highest levels of the Department of Justice and of course 12 years as FBI Director and I think he is going to plow ahead, so I agree with Bob completely on that.

This may end up having some impact; this along with other revelations to come on how the public perceive the results of that investigation and that of course would be a shame.

I have no doubt, I defer to Bob’s expertise that the protocols of the House Intelligence Committee were not honored and I certainly believe that that may have a chilling effect on bipartisanship; it already has, at the House Intelligence Committee and may have a chilling effect in terms of the intelligence community’s willingness to be forthcoming, although they are required by law to be forthcoming in their briefings to the House Intelligence Committee.

(00:09:46)

I will say however that the President of course does have declassification authority, which he exercised in this incidence. I don’t know what I don’t know, but I would be hard-pressed I think to — or one would be hard-pressed to find that any really sensitive sources and methods were disclosed by the Nunes Memo. Of course what was disclosed was that there was a FISA warrant granted with several extensions in Carter Page, certainly anybody who spoke to Carter Page during the pendency of that order now must be on notice that they were likely recorded.

But in terms of disclosing how we engage in national security investigations or imperiling the integrity of any future national security investigations, I think that that was raised, but I don’t think it’s justified.

J. Craig Williams: What about what to me are obvious conflicts of interest in the President approving to release a Memo, declassify it that is favorable on an ongoing investigation of him, how did that happen?

John Malcolm: Well, he is the person who was granted by law the authority to review these matters and to declassify, then he got input from the intelligence community. There were of course, as Bob mentioned, grave concerns. That was a quote expressed by the FBI about the matter and we will see how much of the Schiff Memorandum gets released.

And I want to say a word about that. So it’s been suggested by Democrats that the President is going to make politically motivated redactions to that Memorandum before releasing it and it’s been suggested by Republicans that Adam Schiff larded that Memo with all kinds of classified information which the President will have to redact and they will be able to then suggest that the President is hiding something.

I hope neither of those is true. These matters are way too important, not only in terms of the matters that are being investigated, but also the suggestions that the FBI was in fact putting a political thumb on the scale of an incredibly important investigation. And I think cooler heads ought to prevail. And while it’s essential that we continue to protect the nation’s secrets, as much as possible should be disclosed so that these matters can at least be laid to rest and the Bureau can take whatever measures it needs to take to make sure that, one, there isn’t an actual political bias brought to bear on any of these investigations and frankly to put in place procedures that will prevent even them from ever being vulnerable to the attack that they might have been biased.

Bob Ambrogi: What procedures are there — this Memo has kind of put a spotlight I guess on the FISA law, the FISA Court and it alleges that the FBI wasn’t entirely frank with the court in making its application for surveillance. There have been claims in the past that the FBI hasn’t been entirely forthcoming with the FISA Court in other instances. What protections are built into the process to ensure that the FISA Court is getting all the information it should be getting?

Bob Anderson, can you speak to that?

Bob Anderson: Yeah. No, I think that’s a great question and I will tell you, I have heard a lot of people you can tell that are talking about it on national media that have no idea what they are talking about. The U.S. person, particularly that portion of the FISA statute, is extremely comprehensive and what people need to understand is, is that FISA packages start in field offices around the country by case agents and then are worked up through the chain of any field office, right up to the top, which is the SAC in Charge, running through different legal portions of DOJ and the FBI at the field office level.

And then after that they actually go into FBI headquarters and work up through different sections and divisions and throughout the entire process they are touching the highest levels of the organization. And when I was the Assistant Director of Counterintelligence, obviously I have touched and signed off on hundreds and hundreds of FISAs and I can tell you that 99.9% of the FISAs, one, never make it through on their first, second, third or fourth passes. They are constantly set back and sent back to the field or up to substantive divisions at headquarters for more information to make sure that what we are doing against anybody that’s potentially a U.S. person is just.

And it’s not even until after that is done where it’s pushed up to the Deputy Director and the Director and then which, as John well knows, goes across the street to the National Security branch, the Department of Justice.

And then what people also need to know is once you go before the FISA Court and I laugh at this every time I hear people say it’s a rubber stamp. I mean, if you have ever testified in front of a FISA Court Judge, which are obviously appointed by the head of the Supreme Court and they are very specialized judges that hear top-secret and secret information as a course of business, this is anything but a rubber stamp and some of those hearings I personally testified for hours in front of a FISA Court Judge.

And the last thing I would say about that, and I am sure John could jump in here also, is many years ago we started what’s known as the Woods Procedures and those procedures simply are any information that’s in the FISA of any relevancy, ie, name Social Security, phone number, address, all of that information has to have corroborating information either on agents 302, a subpoena, something of record to vindicate and show the judge that this is not somebody just willy-nilly putting it into that affidavit.

(00:15:09)

And then the last thing I will say before I let John jump in is the instance that we are talking about not only do you have the initial application but you have several renewals of that application seen by different judges, and I think people need to understand that there is a significant amount of checks and balances when it comes to the U.S. person FISA Statute.

Bob Ambrogi: Well, just before we get off that, I want to hear from John, but I just want to ask you, I mean, there have been reports and I think perhaps most notably The New York Times back in 2002 had reported that the Court itself had identified some 75 cases in which it said that the FBI had misled it in FISA documents, if the FBI isn’t forthcoming how is the FISA Court to kind of sort through that?

Bob Anderson: Well, I can tell you when it comes to the FISA Court or any Federal Court the people that have the vested interest in making sure that the courts are aligned with and believe what agents are testifying to is the FBI. So there’s procedures to bring the agents and whoever in front of the Court whether it’s Department of Justice Attorneys or agents to work out where those issues are and a lot of the issues that I think that you are bringing up stem from affidavits and FISAs around right after the 9/11 timeframe.

There is a lot of us that were in the FBI during 9/11, unfortunately, I think probably two-thirds of the FBI nowadays were not, and in those instances there’s procedures to bring agents and attorneys together in front of FISA Court judges, or if need be up to 16:38 to see the House or Senate intelligence committees to work through those areas of concern.

John Malcolm: Yeah, look, I agree with absolutely everything that Bob just said about the procedures, including the Woods Procedures put in place after there were allegations that the FBI had played fast and loose with the facts. I think you need to look however at exactly what happened here. So, we are talking about allegations that were being made against an alleged foreign agent witting or unwitting of the Russian Government Carter Page who was a volunteer foreign policy advisor in the Trump campaign right at the tail end and in the heat of a very, very close presidential election.

You have this guy, Christopher Steele, who is a former British spy, who comes up with this 30-something page dossier that is absolutely explosive. It makes allegations that the Russian government under the direction of Vladimir Putin has decided to engage in an operation, tilt the election towards Donald Trump and it’s engaging in a whole host of activities in coordination with the Trump campaign, that Memorandum goes on to say that the Russian government has all kinds of dirt in the form of financial and sexual improprieties against Donald Trump that they can use to blackmail him.

Now, Christopher Seele is a guy who not only has been a British spy but who has apparently over the years worked with the FBI on a whole slew of investigations including the FIFA investigation, the Soccer Association and has been deemed to be a reliable source.

And I think what happened here, was the FBI just said, this guy has given us lots of great information in the past and we trust him, and perhaps in another investigation that might have been good enough, but it wasn’t good enough here and here’s why.

If you look at the Steele dossier, you are relying not only on the credibility of Steele but all of the information contained in that dossier is to unnamed sources whom Steele says are reliable and he says they are all highly placed Russian officials either in the government or intelligence agencies or friends and people who are highly placed in the Russian government or intelligence agencies, and they are dishing this dirt.

Now, very hard under these Woods Procedures to verify any of that information and it doesn’t appear as if it was verified. Jim Comey testified publicly that in fact this information was not only salacious, it was unverified; and here, the problem in my opinion is that unlike in the past they had real reason to doubt Christopher Steele’s credibility here. I am not saying that the information in his dossier isn’t true, maybe it is all true, but it all hinged on his credibility and his credibility was subject to attack. It was subject to attack for at least a couple of reasons.

One of which he had been hired by Fusion GPS. Fusion GPS working on behalf of the Clinton campaign and on behalf of the Democratic National Committee and he had been paid $160,000 to put together this dossier by people who obviously wanted Donald Trump to lose this election, and the other is, over the course of doing this investigation either based on the information he learned or just other reasons he hated Donald Trump. He made it quite clear in a conversation with Bruce Ohr, who was a Senior Department Official a month before the first FISA application was applied for that he was desperate for Donald Trump not to win the election.

(00:20:02)

Now under these circumstances, either it was incumbent on the FBI to verify some of the information to still dossier on its own or to disclose this information in full to the FISA Court, so the FISA Court could assess whether or not they believe the dossier or whether there was enough other probable cause based on independent evidence. That wasn’t done here.

Now, in part it wasn’t the FBI’s fault. In the initial FISA application they cited a Yahoo News story that contained a lot of the information that was in the Steele dossier; and they said, Steele has told us that the only people whom he gave this information to were us and to Fusion GPS.

So, Yahoo News must have come upon this through its own sources, which he said, was a highly placed western intelligence source and that corroborates what’s in the Steele dossier. It turns out that was a lie, it turns out that the entire source of information for that Yahoo News story was Steele himself. And Steele was in fact leaking like a sieve and talking to all kinds of media outlets because he was desperate for Donald Trump to lose this election.

So, perhaps they got caught, perhaps they could they had trusted this guy in the past, they prepared these applications and vetted them the way that they usually do, but in this case they had somebody who was a highly suspect source and they did not fully disclose the information to lead a FISA Court judge that he might not be a credible source to the Court. And that is why the FBI has now been left vulnerable to the attack that these were intentional omissions. I’d certainly doubt they were intentional emissions, I certainly hope they weren’t intentional omissions, but they have left themselves vulnerable to that attack and that’s a real shame.

Bob Ambrogi: Well, I hear what you’re saying. We need to take a short break. We’re going to be back in just a moment to continue this discussion, so please stay with us.

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Bob Ambrogi: And welcome back to Lawyer 2 Lawyer, this is Bob Ambrogi and joining my co-host J. Craig Williams and I today is Bob Anderson, Managing Director of Navigant and a Former National Security Executive with the FBI, and also John Malcolm, Vice President of the Institute for Constitutional Government at The Heritage Foundation.

Bob Anderson, given what John was just saying, I know that The New York Times has gone to Court now saying, let’s make the FBI’s entire application for a warrant public at this point so that we really know what the basis was here, what do you think about that? Should we just put it all out there at this point?

Bob Anderson: I mean, I don’t know enough about the actual initial FISA package and what type of information it’s contained in it. I mean, I do think and I agree with John, if there’s anything for any reason that appears on its face that was not appropriate or done appropriately by the book by the FBI, people need to be held accountable.

And I think the organization and Chris Wray, who’s running it now, will act accordingly. I think whether it’s Andy McCabe, Jim Comey or Pete Strzok or whoever that we’ve seen in the news lately, I think it behooves the FBI to have people put in front of a judge or in front of Congress to look at, hey, how exactly did this happen and let’s work through one, if it wasn’t appropriate or two, the FISA Court was or was not instructed on all the different nuances of the source in this case as John had brought up, and I think they need to get to those answers.

J. Craig Williams: There have been a lot of people who have said that this whole scenario is very reminiscent of the Watergate Nixon administration situation, what lessons do you think we can take from history to apply to the current situation?

John Malcolm: I’ll jump in and I’m not going to necessarily compare this to Watergate. I think that these are really early days. I mean, not only do we have the shift memo that’s still to come out, but Andy McCabe has now taken slightly early retirement and the reason it’s been reported that he’s taken slightly early retirement is that the Inspector General at the Department of Justice, Michael Horowitz, somebody I also worked with and have the highest regard for, is going to come out with a report sometime in March or April, talking about the investigation, and all the way up to Director Comey.

In terms of the Clinton email server investigation and then McCabe is not going — he’s not going to look good in terms of this report. I don’t know Andy McCabe. I’m not looking to impugn the integrity of Andy McCabe, it already rose to the level of being acting FBI directory as a 20-year career for all. I know, he was a great agent.

(00:24:55)

I will say this however, even though, he received a clearance from the FBI Ethics office to oversee these investigations, I don’t think he should have. For a very simple reason, which is, his wife, Jill, had just recently run as — and she was unsuccessful for a seat in the Virginia Senate. She ran as a Democrat and the overwhelming amount of her campaign fund came from then Governor, Terry McAuliffe, and entities affiliated with him and Terry McAuliffe is a very, very close confidant of the Clintons.

I am not suggesting that Andrew McCabe put that political bias, to me he has one in place in this investigation; however, if there is any kind of impropriety, even if it’s just negligence as opposed to intentional misconduct that comes up, he leaves himself again vulnerable to that charge. And these investigations, particularly if there’s a political component, are sufficiently important and sensitive that there are many, many skilled and dedicated FBI agents, who could have headed up that investigation, and we would never be talking about any of these issues.

And now, of course, that’s compounded by the fact that Peter Strzok and Lisa Page were involved in these investigations for a short time, were on the Mueller team and people have now been sick and tired probably of reading their text messages, which show a very, very evident bias Bob Mueller, who is a straight shooter, very much to his credit the moment found out about these texts, got them off of his team, but perhaps the damage has already been done.

Bob Ambrogi: We are getting pretty near the end of our time here and I do want to make sure I give each of you an opportunity to give your closing thoughts on this topic. I’d also let our listeners know how they can follow up with you or learn more about the work that you’re doing. So, Bob Anderson, I wonder if we could start with you, get your wrap-up thoughts.

Bob Anderson: Yeah, I mean, just wrap up thoughts, I mean I agree a lot with what John said, I think we are in early times of this but in any one of these particular instances, whether it’s with Andy or Jim or Pete or Lisa, all of which I’ve known for a long, long time, I think the answers that we’re looking for should come.

In other words, whether they need to testify before Congress or testify before FISA judge to make sure that what was done was in the most upright and proper ways to do it. I do think John is very right that the appearance, and honestly, that’s what a lot of this is about, whether it’s right or not, the appearance looks bad.

And I think that’s something that we got to make sure that we do better each time we do it. And as far as getting in contact with me, I’m easy to get in contact with, I’m a Managing Director at Navigant out of Washington, DC, and obviously they can go to  HYPERLINK “http://www.navigant.com” navigant.com or anywhere else and get my identification, and I run a global cyber information security practice.

Bob Ambrogi: Thanks a lot, and John Malcolm, how about you?

John Malcolm: Sure. Well, even though I work at The Heritage Foundation and I’m in the middle of Washington, DC, I do like to try to take a dispassionate view of these things and I was a federal prosecutor for 10 years. And I care a lot about the FBI, and I only care a lot about the FBI because I happen to love the institution.

It’s also the premier and most important law enforcement investigative agency that we have in this country and they are given some very, very powerful tools for domestic criminal investigations, under Title 3 and under the Foreign Intelligence Surveillance Act for national security investigations.

And they get to spy on individuals using highly secretive methods, and it is important that if we are going to give them those tools to engage in these necessary investigations that the protocols be followed scrupulously. And I certainly hope that the FBI at the senior levels did not in fact engage in political bias; if they did, head should roll, but I also care that even if that didn’t happen the measures be taken to make sure that the FBI is not left vulnerable to these kinds of attacks in the future. And with respect to the facts underlying, the Steele dossier and the matters being investigated let the chips fall where they may.

In terms of people getting in contact with me, they can do that through The Heritage Foundation, they can send me an email at [email protected] or they can follow me on Twitter @malcolm_john.

Bob Ambrogi: Well, thanks a lot to both of you for taking the time to be with us today. We really appreciated your insights on this issue and appreciated you taking the time to share them with us.

John Malcolm: I really enjoyed it, pleasure to be with you.

Bob Anderson: Thank you.

Bob Ambrogi: Well, Craig, that does it for this week. Any final thoughts from your end?

J. Craig Williams: It’s a morass. It’s a difficult issue to sort through. There are political considerations that people are giving, there are factual and legal considerations, all of which are just kind of swirled together in a big mess that a lot of people have created. Sloppiness or not or whatever you want to call it, but we’re in it, and it’s — I think it’s going to take us a long time to sort through it. And who knows, if we’ll finish before President Trump’s term is over.

Bob Ambrogi: We will find out. I think it’s also fascinating that as I said earlier to kind of put a spotlight on this FISA Court that’s kind of been in and out of the news really since 9/11, and this might be a situation where more information is a good thing and more transparency is a good thing. I have realized that’s not how the FISA Court works, but I’d certainly like to see more information be released to the public about what was going on here.

(00:30:03)

J. Craig Williams: Well, ultimately, I’d expect that information to be a Mueller’s report, when it’s released all of that information should be displayed.

Bob Ambrogi: Well, thanks to you all for listening and thanks to you all for Legal Talk Network for producing our show, remember that when you want legal, think Lawyer 2 Lawyer, talk to you next time.

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