Is It Time For The Courts To Get Involved In The Russia Hoax?

Back in February of 2018 Hugh Hewitt, law professor and pundit, conducted a fascinating interview on his radio program with Devin Nunes, chairman of the House Intelligence Committee. As it happens, that interview serves very nicely as an introduction to a development that hasn't received much attention, coming as it does in the leadup to the Midterm elections. That development was reported by John Solomon in The Hill: Silence of 'the lambs': The deafening quietude of the FISA court and John Roberts. Let's begin with the Hewitt/Nunes interview.

Hewitt and Nunes revealed themselves to be very much aware of not only the legal aspects of the Russia Hoax, specifically regarding the Carter Page FISA, but also of the Constitutional aspects. This is entirely understandable, given that all three Constitutional branches of the US Government were either involved in the approval of the Carter Page FISA or are now involved in getting to the bottom of the Russia Hoax--in which the FISA aspects present the most danger of criminal liability.

As the interview progressed, Hewitt raised the very possibility that Solomon now refers to: that of interviewing Chief Justice John Roberts, who appoints the FISA Court (FISC) judges. Hewitt clearly believes that the Judicial Branch has a lot at stake in the Russia Hoax and therefore considers that it would be a good idea for Congress to approach the Courts. The exchange begins with a discussion of the Separation of Powers issues involved in Congress seeking to interview the Chief Justice, but it then moves to the issue that's at the heart of criminality in the Russia Hoax: the apparent effort by the FBI and DoJ to disguise from the FISC the true origins of the material that came to be known as the Steele Dossier. The FBI's subterfuge was embodied in a footnote to the FISA application, and Hewitt gives it as his opinion that the footnote constitutes a "material omission. He also cites the opinion of a Federal judge to that effect as well. Here's the exchange:

HH: Now the Chief Justice [John Roberts] appoints the FISA judges. Have you had a chance to chat with him or any of the FISA judges about what went on at the FISA Court [FISC] with regard to the [Carter] Page application?

DN: This is something that we grappled with, that we’ve been grappling with all through this investigation. We decided that we wanted to complete the FISA abuse portion before we approached the courts. Our next step with the courts is to make them aware, if they’re not aware already, that this happened by watching the news, so we will be sending a letter to the court. [Discussion re sending a letter to the SCOTUS directly. HH points out that SCOTUS will not issue an advisory opinion.] 

HH: ... And since [Roberts] appoints the judges and is the leader of Article III [the Judicial Branch of the US Government], I would think you would invite him to come and talk with the committee. You can’t compel him to come, obviously, but since he appoints the FISA judges, perhaps he would accept your invitation to a closed session. Would you welcome such an appearance by the Chief Justice before a closed session to discuss the FISA process?

DN: So this is something that we have, like I said, we have thought a lot about this. And the answer is we don’t know the correct way to proceed because of the separation of powers issue. ...

HH: It is perfectly appropriate to invite, though you cannot compel the Chief Justice. And since he appoints the FISA judges, I doubt any of them would appear without his previous appearance and his warrant to do so. But I would encourage you to do that, because I would like to see if the Chief Justice would inform you of their reactions. I believe they are not going to be amused by this footnote. I believe it’s a material omission.

DN: Yeah.

HH: I had one former federal judge tell me that it is, it is proof, it is probative evidence of a government intent to deceive the court that they did not disclose the origin of the Steele dossier, but instead disguised it as political manufactured.

DN: Yeah, and I think you have a very good point, and that was our read of it, also, in that you know, so in the application, there’s, you know, you would think you would go to great lengths to say where you got this from. And then it’s almost like you had to go out of your way to put the footnote in at the end in order to disguise it so that you’ve basically said oh, no, I did say this, when the reality is you really didn’t, right?

When we turn to John Solomon's reporting we see the significance of the exchange between Hewitt and Nunes. Solomon is concerned with the failure of the FBI and DoJ to disclose to the FISC what Solomon refers to as "exculpatory evidence." In using this term Solomon has a number of things in mind. First, of course, is the FBI's admission that the "information" contained in the "Steele Dossier" materials was unverified, yet was presented to the FISC as if it was reliable information. What the FBI did to render this approach plausible was to argue that Steele's supposed past reliability vouched for his continued trustworthiness, and the FISC apparently accepted the FBI's representations. (Steele's supposed reliability in the past is, in fact, rather dubious: cf. Just How Reliable Is Christopher Steele?)

Secondly, however, Solomon focuses on the footnote that Hewitt and Nunes discussed. That footnote served to disguise the true relationship of Steele as well as that of Steele's employer at Fusion GPS, Glenn Simpson, to the Clinton campaign. If the full truth of that relationship--as it was known to both the FBI and the DoJ--had been revealed the FISC might very well have had second thoughts about the supposed reliability of Steele as a source of information. As David Kris explains at Lawfareblog:

the Nunes memo ... quoted from parts of the FISA applications, including a footnote in which the FBI explained that Steele was hired to “conduct research regarding Candidate #1,” Donald Trump, and Trump’s “ties to Russia,” and that the man who hired him was “likely looking for information that could be used to discredit [Trump’s] campaign.”

This characterization of what Steele was up to conceals what the FBI and DoJ knew for a fact: that the material they were presenting to the FISC was opposition research cooked up for and paid for by the Hillary Clinton campaign for use against the rival campaign of Donald Trump. The footnote subtly piggybacks on the slanted account of Steele's past exploits, leading the FISC to suppose that, even though Steele was now working for someone who was “likely looking for information that could be used to discredit [Trump’s] campaign,” he was still the FBI's guy and had surely presented nothing but truthful and reliable information to the FBI. The reality was that the FBI and DoJ knew that Steele was totally invested in preventing a Trump presidency and they knew exactly what the information was being used for--there was no "likely" about it. They also knew that Steele was possibly acting in cooperation with British government circles and was certainly in gainful cooperation with the Clinton campaign and Democrat operatives at DoJ, such as Bruce Ohr.

When viewed from this standpoint, we can see that this footnote, far from being a simple dodge or evasion, was in fact an affirmative effort to create a false impression in the minds of the FISC judges who read the application. This is why Hewitt terms it--the failure to disclose the known connections to the Clinton campaign--a material omission: it was an omission that changed the whole complexion of what was presented to the FISC.

Solomon then goes on to explain the significant new development, which is that Rep. Mark Meadows has written a letter to the Chief Judge of the FISC, Rosemary Collyer. In the letter Meadows urges Collyer to lead the FISC in its own investigation of the abuses of the FISA process that have been uncovered in the House's investigation of the Russia Hoax, in order to safeguard the integrity of the entire FISA regime:

“Based on our investigation and open source information, the FISC may have not lived up to the Constitution’s protections against unreasonable searches and seizures in approving U.S. citizens targeted without probable cause.”

...

“We write to encourage you to investigate the possibility that FISA has recently been weaponized for political means.”

Solomon closes with several paragraphs of advocacy:

The FISC is one of the only courts in America where the accused gets no representation, and the public gets no visibility. For that reason, the DOJ and FBI are supposed to be held to a higher standard of making sure judges see “the good, the bad and the ugly” about evidence so the court can protect the accused.

But a troubling whisper has begun inside the Justice Department. “FISAs aren’t required to include exculpatory evidence,” one official told me on background in a recent text message.

That emerging sentiment should alarm all of us, no matter our political stripe.
A court that excludes legal representation for the accused almost certainly will fail to protect civil liberty if it isn’t allowed to see proof of innocence or evidentiary flaws.

...

For those reasons, the silence of the FISC and Chief Justice Roberts is deafening. Enough concern has been raised about the Russia case for the judiciary to offer us an explanation.

I agree with Solomon's concern, which mirrors that of Hewitt and Nunes. The Judicial Branch of Government has far too much at stake in this Russia Hoax to remain indefinitely on the sidelines. At the same time, however, we need a bit more clarity than Solomon has to offer if we want a focused and informed discussion.

Solomon asserts that the FISC is "one of the only courts in America where the accused gets no representation," but that's not actually the case. It's essential to understand that a FISA warrant is in the nature of a search warrant. That, at least, is the most common current understanding among legal scholars. There are glimmerings of dissent from this viewpoint, but that's where we are currently, and it's the basis on which the FISA regime was constructed by Congress. The fact is, in criminal cases search warrants and arrest warrants are always issued ex parte, that is, with no one present to represent the accused. Moreover, the consensus of legal opinion is that in such ex parte hearings prosecutors are not obliged to present exculpatory evidence. To that extent, the FISA process as it exists is not exceptional. To that extent, also, the "troubling whisper" that, in DoJ's considered opinion, “FISAs aren’t required to include exculpatory evidence” is defensible. But the real question, then, becomes: to what extent should we follow this line of reasoning? Is it reasonable to view FISA warrants as strictly comparable to criminal search and arrest warrants?

There is, in fact, a major difference between criminal warrants and FISA warrants. In the case of criminal warrants, while the accused gets no voice in the issuance of the warrant, he does have the ability to challenge the sufficiency of the warrant after the fact. If the State has abused the process, by withholding material information or by misrepresenting the facts, sanctions against both the case and the prosecutors and investigators can be enforced. That, as a practical matter, is virtually never the case with a FISA warrant, for the simple fact that cases involving FISA warrants rarely proceed to prosecution. (There are other reasons why, in espionage cases, for example, FISA based cases are rarely if ever controversial from the standpoint of the FISA collection itself.) Thus, unlike in criminal cases, abuses of the FISA process are unlikely to ever be revealed--not to the FISC and certainly not to the public. The fact that the FISA abuse involved in the Russia Hoax was revealed is entirely due to Trump's victory against all the odds.

But none of this captures what has occurred with the Russia Hoax. The legislators who wrote FISA probably never imagined that FISA would be used by the Administration of one political party to spy on the rival political campaign in the high stakes arena of a Presidential campaign. Nor did they probably imagine that our Deep State intelligence agencies and the DoJ would aggressively take sides in an election. If successful, this political espionage would likely never have become public--Hillary Clinton would have won the election and the public would have been none the wiser. Nor would Donald Trump ever have got a hearing before the FISC--despite the enormous and tangible harm he (and the entire country) had suffered. This abuse of FISA, based on a hoax, a Big Lie surrounded by myriad little lies, is at the heart of the Russia Hoax. This is the enormity of what a handful of officials at the FBI and DoJ set out to do: a silent, hidden coup, to overturn our Constitutional government through the use of the tools of the Deep State. That it came so near to success speaks volumes about the character of the individuals with whom the Obama administration has stocked the Federal bureaucracy.

What is the solution? I'm just not sure. On the one hand, I certainly agree with commenters who want the FBI and DoJ turned inside out. That probably has to be the bottom line--without a thorough house cleaning we as a nation will never be able to rest easy. This is ultimately a political problem, and that means it's a problem with people. There needs to be a purge of those who are willing to use government agencies for political ends. No amount of tinkering with FISA requirements can protect us from those who are willing to bend their ingenuity to new ways of lying. Can the Judicial Branch serve a useful purpose in all this? Possibly. But I believe it will require the development of a distinctively new judicial culture. One that is both mindful of its own Constitutional limits, but willing to hold Executive Branch officials, lawyers, to account. Engaging with the House, per Hugh Hewitt's suggestion, conducting their own internal investigations, per Mark Meadow's urging--these could be the start of a true reform that could rein in our runaway Deep State, but it would be a monumental task. The question is, do we have the people to effect this transformation for the long term. The Deep State is still staffed by the Resistance.