Let’s assume Democrats are correct about President Trump and the House Republicans’ motive for releasing the House Oversight Committee’s memorandum on Friday. Let’s assume Trump believed the memo would deflate special counsel Robert Mueller’s investigation into the Russian involvement in the 2016 presidential election and that House Republicans wanted to score partisan political points. And let’s assume the memo’s release undermines the FBI and Department of Justice’s credibility and their relationship with the Foreign Intelligence Surveillance Act court.

Even if all those things are true, the disclosure still serves the public’s interest by exposing abuses of the FISA procedures and by raising legitimate concerns over the policies followed by the FBI and DOJ in filing surveillance applications with the FISA court.

The memo highlighted several material facts omitted from the government’s application for a FISA court order to conduct surveillance on former Trump campaign foreign affairs advisor, Carter Page. The Federalist’s Rachel Stolzfoos highlighted the five most glaring omissions, including the government’s failure to inform the FISA court that the Steele dossier cited in the application had been funded by the Democratic National Committee and the Hillary Clinton campaign.

The federal government’s failure to disclose these material facts in its FISA application should raise serious concerns — as it did in September 2000 when “the government came forward to confess error in some 75 FISA applications related to major terrorist attacks directed against the United States.” As the FISA court explained, those errors related to misstatements and omissions of material facts,” and prompted the FISA court to hold “a special meeting to consider the troubling number of inaccurate FBI affidavits in so many FISA applications.” In response to the problem, the FISA court actually “barred one FBI agent from appearing before the Court as a FISA affiant.”

Yet the problems persisted, leading the government to report similar misstatements in March 2001. At that time, the FBI decided to implement “detailed procedures governing the submission of requests to conduct FISA surveillances and searches, and to review draft affidavits in FISA applications, to ensure their accuracy.” Those procedures required a “careful review of draft affidavits by the FBI agents in the field offices who are conducting the FISA case investigations, as well as the supervising agents at FBI headquarters who appear before the Court and swear to the affidavits.”

The new procedures seemed to work: Since the FISA court issued its opinion discussing these problems in 2002, there has been no further mention of misstatements or omissions by FBI agents involved in the FISA process. The release of the House’s memo, thus, raises several serious issues, including:

  • Whether the government informed the FISA court of the omissions in the FISA application for Page.
  • Whether the agents involved in the FISA application for Page were involved in other FISA cases and, if so, whether those cases were reviewed for accuracy.
  • Whether there have been other cases of misstatements or omissions and, if so, whether the FISA court has been notified of the errors.
  • Whether the procedures implemented by the FBI in 2001 to address the mistakes are still enforced and, if so, whether they are being applied in practice.
  • Whether James Comey, Andrew McCabe, Sally Yates, Dana Boente, and Rod Rosenstein — each of whom signed one or more of the FISA applications — independently reviewed the information provided to the FISA court.

Unfortunately, most of the media seems uninterested in the content of the memo, or the legitimate issues it raises, focusing instead on the politics behind the release. However, these questions are important in general, and vital in this case, because they arise in the context of the targeting of a political opponent. And the public deserves answers to these questions no matter the motive for the release of the memo.

Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner's Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge, and is a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.

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