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Why It’s A Big Problem If The FISA Court Relied On Steele’s Hearsay To Grant A Surveillance Order


The release of Republican Sens. Chuck Grassley and Lindsey Graham’s criminal referral of Christopher Steele to the FBI has amplified concerns the Obama administration abused the FISA process to obtain permission to spy on Trump campaign associate Carter Page. The letter confirmed and expounded on allegations of the abuse in the memo released by the House Intelligence Committee, and has been well covered, even if the major media tried to downplay its contents.

Andrew McCarthy, former assistant U.S. attorney, laid out the details of the potential abuses in a devastating weekend column for National Review that is a must-read. One important thread meriting further coverage remains, though, because it destroys the Democrats’ continued efforts to downplay both the memo and the criminal referral.

McCarthy pointed out in his column that the government must establish “the reliability of the informants” of the information they present to the FISA court as grounds for a warrant. While the government built a case around Steele’s reliability (who compiled the dossier on President Trump), ultimately he was not the source of the facts — those were anonymous Russians.

“As I outlined at greater length last week (here, in section C), in applying for a warrant, the government must establish the reliability of the informants who witnessed the alleged facts claimed to support a probable-cause finding,” McCarthy wrote. “Steele was not one of those witnesses. He is not the source of the facts. He is the purveyor of the sources — anonymous Russians, much of whose alleged information is based on hearsay, sometimes multiple steps removed from direct knowledge.”

If the FISA court did rely on Steele’s credibility in granting the warrant to spy on Page, and didn’t require the FBI to speak to the credibility of Steele’s unnamed Russian sources, effectively allowing hearsay as part of their case, that’s problematic. Here’s why.

To obtain a FISA court order for electronic surveillance for a United States citizen, FISA requires the federal government to establish that there is probable cause to believe the target is “an agent of a foreign power” who is engaged in “activities involve or may involve a violation of the criminal statutes of the United States.”  The Grassley-Graham memo stressed that the FISA applications “relied heavily on Mr. Steele’s dossier claims,” and “the bulk of the application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier.”

The dossier’s allegations against Page came from the unnamed Russian sources — not Steele or other known informants. We know that because BuzzFeed published the Steele dossier in full. McCarthy has hammered this point for the last week, and it’s been largely ignored. One critic of the Republican memo did respond, though. University of Southern California law professor Orin Kerr addressed McCarthy’s argument on Twitter.

Andrew says it is ‘truly outrageous’ ‘that critics of the Nunes memo ‘don’t — or won’t’ see the true problem with the Page affidavit: Anything Steele said was hearsay based on his sources [and] we don’t know Steele’s sources. Here’s why I think that criticism is misplaced. On one hand, Andrew is surely right that double hearsay can weaken the evidentiary value of an informant’s report. If informant A didn’t actually see a drug buy, but just heard from B that it happened, A’s report on what B told him is much weaker than if A saw it himself. That point goes to how much cause Steele provided, not whether there was ‘abuse’ of the FISA law.

But there are two big problems with trying to invoke that point here. The first is that it only goes to the relative weight of relying on Steele’s report. I think we all agree that Steele’s report would have a stronger basis if Steele was actually in the room with Vladimir Putin & discussed Trump with Putin. … Second, the fact that the Steele dossier relied on double hearsay is obvious from the nature of the report and already factored in by anyone trying to assess its credibility. What makes Steele credible, to the extent he is, is a particular understanding of the strength and reliability of his intel sources. The fact that they are unknown to us doesn’t mean they can’t be credible. See Illinois v. Gates, overturning Spinelli v. US’s informant test.

Kerr’s argument was weak before the release of the Grassley-Graham memo, but is now even more so in light of the Steele criminal referral, because we now know that the FISA application relied heavily on Steele’s credibility and apparently did not provide additional information corroborating the allegations. This makes the “Illinois v. Gates” argument Kerr is making here fatal.

In Gates, the Supreme Court held that whether an informant’s tip establishes probable cause is determined based on the “totality of the circumstances,” which considers the “informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge,’” and asks whether, as a “common sense, practical question there is probable cause.” Gates also made clear that “[s]tatements from an informant of unknown reliability may in certain instances serve to establish probable cause if, under the totality of the circumstances, a reasonable person might consider that the statements are worthy of credence.”

Or in the words of Kerr, the fact that Steele’s sources are “unknown to us doesn’t mean they can’t be credible.”  True enough.  But, following the release of the Grassley-Graham memo, that’s actually irrelevant.

Steele clearly qualified as an expert in espionage and had “a particular understanding of the strength and reliability of his intel sources,” as Kerr put it. But in the dossier, Steele did not vouchsafe for the credibility of his informants. And even assuming he had, courts hold that conclusory statements that informants are “believed to be reliable sources,” “standing alone without any supporting factual information, merit absolutely no weight and that information obtained from a reliable source must be treated as information obtained from an informant of unknown reliability.”

The Steele dossier lacks supporting information bolstering the credibility of his sources, and thus any assessment by Steele that the Russian informants were credible would be entitled to no weight by the FISA court. That would not necessarily doom the FISA court’s reliance on Steele’s assertions, though, if there were “a sufficient basis to sustain the probable cause finding under the totality of the circumstances.” But to find probable cause in a case where the informant is of unknown reliability, “courts insist that the affidavit contain substantial independent police corroboration.”

However, as noted above, the FISA application “appears to contain no additional information corroborating the dossier allegations against Mr. Page.” Under these circumstances, as a matter of law, the FISA court’s surveillance order cannot withstand scrutiny.

That of course assumes the Nunes memo and Grassley-Graham criminal referral accurately assessed the totality of the evidence presented to the FISA court and that Steele’s dossier served as the linchpin of the case. Kerr makes a fair point that to judge whether there is probable cause you need to see all the evidence. But I see no reason to doubt Grassley and Graham’s assertion that Steele’s statements and the dossier served as the bulk of the FISA application.

Further, as I explained last week, the legal weeds of materiality and probable cause are really irrelevant because the question is of oversight, not of the admissibility of evidence. Even assuming the Republicans had the worst of motives in exposing the deficiencies in the FISA process, the disclosures serve the public good. Hopefully, that’s something all critics of FISA can come to agree upon.