The Grassley Letter Everyone Is Ignoring Is Way More Important Than the Nunes Memo

Julian Sanchez

It hasn’t been built up by weeks of hype or a fevered social media campaign, but a letter from Sens. Chuck Grassley and Lindsey Graham—sent to the Justice Department in January, and released in declassified form this week—may be more significant than the now-infamous #memo #released by Rep. Devin Nunes earlier this month.

The Grassley letter and the Nunes memo both deal with the same thing: The FBI’s surveillance of former Donald Trump adviser Carter Page under the Foreign Intelligence Surveillance Act, and the role of a controversial dossier on links between Trump and the Russian government compiled by former British spy Christopher Steele. But while the Nunes memo has largely been greeted with justified ridicule, the Grassley letter makes a more direct and serious case that the FISA warrant targeting Page may have been issued on insufficient grounds—while at the same time undermining key aspects of Nunes’ argument.

Grassley’s letter pokes holes in the one truly significant claim made in the Nunes memo: That the FBI improperly concealed from the Foreign Intelligence Surveillance Court that the Steele dossier was part of opposition research underwritten by the Democratic National Committee. Grassley’s letter confirms the accuracy of the counter almost immediately offered by intelligence committee Democrats: That the application did, in fact, disclose that the dossier’s funders were politically motivated.

More than that, it makes clear that not specifically naming the DNC was not some aberrant omission, but the result of the common intelligence practice of obfuscating the identities of people who aren’t under suspicion. Glenn Simpson of the research firm Fusion GPS, who directly hired Steele, is referenced only as an “identified U.S. person.” Even Steele himself does not appear to have been named: The ambiguous pronoun “his/her” is used to avoid specifying a gender for the dossier’s author. The judges who reviewed the application almost certainly would have recognized Page as an adviser to Trump and inferred that opposition research concerning him was likely funded by Democrats—and could easily have asked if they thought it was necessary to clarify.

But when it comes to the broader question of whether the FISA wiretap order on Page was adequately grounded in evidence, the Grassley letter provides more serious grounds for doubt, directly making several key claims that the Nunes memo only insinuates. Critically, Grassley and Graham assert that the Steele dossier formed the “bulk” of the FISA application, and as important, that the application “appears to contain no additional information corroborating the dossier allegations against Mr. Page,” and that the FBI “relied more heavily on Steele’s credibility than on any independent verification or corroboration for his claims.”

If the Grassley letter is accurate, it should provoke a debate, not about whether some cabal within the FBI had chosen Carter Page as the unlikely vehicle for a byzantine plot against Trump, but about whether the FISA process is rigorous enough to protect the civil liberties of all Americans, including those without high political connections.

The Nunes memo, strangely, never explicitly made this claim, instead misleadingly quoting former FBI Director James Comey’s testimony that parts of the dossier were “salacious and unverified”—apparently a delicate way of referring to the headline-grabbing allegation that Trump had been caught on tape with prostitutes. Grassley and Graham focus on the more relevant question Nunes neglected: Whether the specific (and not particularly salacious) allegations about Carter Page relied upon in the FISA application had been corroborated.

Much of the rest of the Grassley letter is focused on whether Steele misled the FBI about the extent of his contacts with the press regarding his findings, and whether this should have influenced their assessment of him as credible. These are reasonable questions to pose, though it’s worth recalling that warrant applications, especially before the FISA court, are routinely based at least in part on information provided by sources with checkered histories and ulterior motives. Whether any of the facts about Steele outweighed his track record as a reliable intelligence partner and source of information is a judgment call that is difficult to assess from the outside and after the fact.

More important is the question of whether the FBI took adequate steps to either confirm or refute Steele’s reporting before seeking a wiretap order. The bureau, after all, has a number of quite intrusive tools that should have been available well before the high standard of “probable cause” for a full wiretap order was met. They could have used National Security Letters, which require no judicial approval, or Section 215 orders, which require only a minimal showing of “relevance to an investigation” to review Page’s financial and telecommunications records and search for indications that he might be acting as a liaison or “cutout” between Russians and the Trump campaign. They would also have been able to plumb a substantial database of information—including intercepted communications from Russian intelligence targets—looking for apparent references to Page. If they were truly relying primarily on their personal confidence in Steele’s reliability, despite these myriad means of seeking confirming evidence, one might quite reasonably regard that as an unacceptably thin basis for seeking a 90-day wiretap of an American citizen.

Neither Grassley nor Nunes really grapple with the critical question of why, if the evidence was so thin, surveillance on Page was renewed on three separate occasions, including once during the Trump administration. Normally, after all, the FISA court would ask for evidence that the previous three months of wiretaps had produced some substantive intelligence before acceding to a renewal. But the question of whether the initial order was adequately justified is an important one, even if the surveillance did bear fruit. The Constitution demands that searches be supported by probable cause before they are carried out, not retroactively justified by the fact that evidence was found.

If the Grassley letter is accurate, it should provoke a debate, not about whether some cabal within the FBI had chosen Carter Page as the unlikely vehicle for a byzantine plot against Trump, but about whether the FISA process is rigorous enough to protect the civil liberties of all Americans, including those without high political connections. This is no longer a question of whether the FBI concealed information from the FISA court, but of whether the court looked at a relatively meager body of evidence and signed off on a wiretap anyway. That wouldn’t imply a personal conspiracy against Trump, but a deficiency in the mechanism by which thousands of targeted FISA warrants—more than 300 focused on Americans in 2016—are routinely approved. The problem, in other words, would not be that the Page application got exceptionally lax scrutiny, but rather that it didn’t.

Julian Sanchez is a research fellow at the Cato Institute.