Republican 'Release the Memo' Conspiracy Ignores How Difficult It Is to Get a FISA Warrant

Devin Nunes, the House intelligence committee chairman and Republican representative from California, walks to the House floor on Capitol Hill, on March 24, 2017. The Republican memo that reportedly accuses the Justice Department of deceit in its effort to wiretap a Trump campaign aide apparently ignores one key detail: It is very hard to get such surveillance warrants. Drew Angerer/Getty Images

The Republican memo that reportedly accuses the Justice Department of deceit in its effort to wiretap a Trump campaign aide apparently ignores one key detail: It is very hard to get such surveillance warrants.

"It's extremely difficult, and, in fact, the goal [inside the FBI] is to hold yourself to a high enough standard so that you won't ever get rejected by the court," said Renato Mariotti, who was a federal prosecutor in Chicago from 2007 to 2016 and is now running for attorney general in Illinois.

Here's how the FBI gets the so-called Foreign Intelligence Surveillance Act (FISA) warrants from the secret court that oversees them:

First, the bureau does a "threat assessment" to determine whether a suspect might be working with foreign intelligence. If so, an investigation is opened and agents gather initial material for a warrant, such as "information gathered from other methods like human sources, physical surveillance, bank transactions or even documents found in the target's trash," former FBI special agent Asha Rangappa wrote in a breakdown of the FISA procedures for Just Security, a news outlet focused on national security law.

Evidence that a suspect spoke with a foreign government isn't enough to get a warrant from the Foreign Intelligence Surveillance Court. The FBI still needs to demonstrate that the suspect knew he or she was helping the foreign government, and not just chatting innocuously. There has to be evidence of some action.

Carter Page, a former Trump foreign policy adviser who was the target of FBI surveillance, talks to reporters after testifying to Congress on November 2, 2017. Mark Wilson/Getty Images

Once evidence is gathered, a warrant application is written by lawyers in an FBI field office before getting sent to headquarters in Washington for more approvals. After that, there's one more check: Lawyers from inside the FBI's National Security Division undertake the "Woods procedures," which then-FBI Director Robert Mueller laid out in response to questions from Congress in 2003. Mueller is now the special counsel conducting the federal investigation into Russian meddling in the 2016 presidential election.

"Specifically, the goal of these procedures is to ensure accuracy with regard to: 1) the facts supporting probable cause; 2) the existence and nature of any related criminal investigations or prosecutions involving the subject of the FISA; 3) the existence and nature of any prior or ongoing asset relationship between the subject and the FBI," he wrote.

Only after all that does a senior Senate-confirmed Department of Justice official signoff—and the warrant request package is finally sent to the Foreign Intelligence Surveillance Court.

In the case of Carter Page, the contentious memo written by Republican congressman Devin Nunes apparently claims that the evidence used for the surveillance warrant came from the Steele Dossier, which consists of opposition research material on the Trump campaign originally funded by a Republican challenger and later continued with Democratic backing. The dossier includes a series of claims about Trump and his aides' relationships with Russian intelligence (and, possibly, its prostitutes). The Justice Department hasn't publicly commented on the warrant request, but some officials and former officials have said that the dossier was not the basis for the warrant.

If a part of Steele's dossier was presented to the FISA court judge, that portion would have been validated and approved by several layers of agency bureaucracy, according to Justice Department policy.

A FISA request package is typically about 30 to 100 pages, containing an affidavit by an FBI agent giving an overview of the evidence, a legal memorandum, and an approval letter from the senior official who signed off on the request.

There are 11 federal judges on the Foreign Intelligence Surveillance Court, and they take cases on a rotating basis. The judges deal with non-FISA cases and are selected for the additional responsibility of the FISA court by the Chief Justice of the Supreme Court.

The judge who gets the application reviews the documents, without a formal hearing process, and either approves or denies the request based on the standard that the target "probably" is working as a foreign agent.

The warrant would be approved for 90 days.

Deputy Attorney General Rod Rosenstein reportedly signed off on a FISA warrant extension request for Carter Page. Zach Gibson/Getty Images

If the Nunes memo is accurate, it would mean that Justice Department officials signed off on a flawed request to surveil Carter Page, and also that a judge would have either been deceived by the application or simply approved it blindly.

That said, judges rarely deny requests for warrants, approving more than 99 percent, according to The Wall Street Journal. In 33 years the court had rejected only 11 of 33,900 requests.

As more scrutiny has come to the court in recent years, there has been an uptick in rejections. Nine requests were rejected in 2016, a record high, although the vast majority of requests were still approved.

Defenders of the court say it rejects so few applications because the FBI does such a thorough job before presenting the requests for surveillance warrants.

The window for the warrant, little more than three months, means that any extended investigation is likely to require a warrant extension.

The big difference between a first application and a renewal is that the intent of the surveillance, whether it be tapping a phone or getting access to an email account, can't be hypothetical anymore.

On a first application, the Department of Justice lawyer needs to demonstrate that the agency is likely to find information tied to the suspected crime through the surveillance. On a renewal, the lawyer has to show that it got information corroborating the original warrant and that further access would lead to further evidence.

Before the original 90 days has expired, a renewal application is submitted to a judge, though often not the same judge who heard the original request, given the rotation on the surveillance court. If approved, the FBI would get another 90 days.

According to reports on the warrant tied to the Page surveillance, the warrant was extended after President Donald Trump took office. Deputy Attorney General Rod Rosenstein, who was appointed by Trump, reportedly signed off on the renewal request, allowing lawyers to proceed with submitting a request to a judge.

A judge reportedly signed off, indicating that the initial surveillance had produced evidence, according to the legal requirements for extensions.