Let FISA answer whether Justice Department botched Carter Page wiretap

Let FISA answer whether Justice Department botched Carter Page wiretap
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A burning issue of the day is whether the Department of Justice misled the Foreign Intelligence Surveillance Court in an application for a wiretap on Carter Page, a largely obscure and somewhat flaky Trump campaign associate suspected of being a Russian agent.

To answer this question, those beacons of impartiality, Chairman Devin NunesDevin Gerald NunesHouse passes annual intelligence bill Democrats' opposition research got exposed — this time, not by the Russians GOP consultant sued by Nunes asks for help paying legal costs MORE (R-Calif.) and his Republican colleagues on the House Intelligence Committee, prepared a memorandum explaining that, yes indeed, the FISA court was misled by an Obama Department of Justice out to take down Donald Trump, never mind that it was the Trump DOJ that subsequently sought and obtained an extension of the wiretap.

The memorandum evidently claims that the wiretap application relied on the infamous Steele dossier without disclosing to the FISA court that the dossier, which alleged that Trump had colluded with the Russians, was financed by the Democrats.

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That shouldn’t distract the nation from the merits of this vital issue, Rep. Adam SchiffAdam Bennett SchiffCourt filings show Trump, Cohen contacts amid hush money payments House passes annual intelligence bill Judge finds Stone violated gag order, blocks him from using social media MORE (D-Calif.) and the Democrats on the House Intelligence Committee have prepared their own memo, which, according to its drafters (the memo hasn’t been released), concludes, without surprising anyone, that the FISA court was not misled.

The White House now has the Republican memo. According to press secretary Sarah Huckabee Sanders, “there are no current plans” to release the memo, adding that “The president has not seen or been briefed on the memo or reviewed its contents.” Even so, President TrumpDonald John TrumpUS-Saudi Arabia policy needs a dose of 'realpolitik' Trump talks to Swedish leader about rapper A$AP Rocky, offers to vouch for his bail Matt Gaetz ahead of Mueller hearing: 'We are going to reelect the president' MORE, in the spirit of “why-wait-for-the facts,” told a Republican congressman that he “100 percent” wants the memo released. The FBI jumped in on Wednesday to express “grave concerns” about “material omissions of fact” in the Nunes memorandum. 

Everyone in Washington has an opinion on whether the FISA court was misled. Yet no one has asked the FISA court for its opinion.

Of course, courts generally are loath to involve themselves in political controversies involving other branches of government. Nor is there a case before the FISA court that might require it to rule on whether the wiretap application was misleading. Such an occasion might arise if, for example, Carter Page was indicted and moved to suppress evidence obtained from the wiretap on the grounds that it was tainted by the Steele dossier. An indictment, however, apparently is nowhere in the offing. 

But federal courts are not helpless in these circumstances, especially when the integrity of the judicial process is called into question. As the Supreme Court put it some decades ago, “judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence.”

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Under the supervisory powers doctrine, federal courts have not hesitated to act, in the words of one legal scholar, “to devise sanctions for misconduct by prosecutors and government investigators.” Often courts exercise their supervisory powers where the constitutional grounds for acting are questionable. But here, the issue concerns a wiretap warrant that is subject to the Fourth Amendment prohibition against unreasonable searches and seizures, another justification for FISA court intervention.

It’s possible that the FISA court, in light of the uproar, could act on its own and order the DOJ to demonstrate that citing the Steele dossier in the wiretap application was not misleading. But if that doesn’t happen soon, the DOJ, whose integrity has been challenged, should ask the FISA court to review the wiretap application. The process could involve a hearing and the admission of evidence (likely in non-public proceedings).

To be sure, in any ruling, the FISA court would be limited in describing the wiretap application because of national security considerations. Nonetheless, it could explain in general terms whether there was anything misleading in the application and if so, what, if any, sanctions are required. Or, it could explain that there was sufficient probable cause to authorize a wiretap even without the Steele dossier.

Either way, at least we will know definitively whether the FISA court thought it was misled by the Carter Page wiretap application. And that should be the last word on this matter. 

Gregory J. Wallance is a lawyer and former federal prosecutor and writer in New York. He is the author of the forthcoming “The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring” (March 2018), follow on Twitter @gregorywallance.