As a partner in one of the largest law firms in the state, I receive many memoranda from junior attorneys or clerks on various legal subjects.  The memoranda are important because we need to rely on the quality of the research and analysis.  They also are a tool to make decisions about hiring and advancement.  While much has been discussed about the motivations and ramifications of the release of California congressman Devin Nunes’ Memorandum, had the author been a clerk seeking employment, an offer of employment would not have been made based on this exceedingly thin product.

The central conclusions of the memorandum are that 1) “concerns” are raised about the “legitimacy and legality” of certain DOJ and FBI interactions with the Foreign Intelligence Surveillance Court, and 2) the findings “represent” a “troubling breakdown of legal processes” established to protect the American people.  These phrases alone cause concern.  They are soft and vague.  There is no conclusion that anything illegitimate or illegal occurred.  What are “concerns?”  What does a “troubling” breakdown of legal processes mean?  Again, did something illegal occur?

The flaw is compounded by the next portion, which sets out the applicable legal standard the memorandum applies.  The memorandum states that the public’s confidence in the integrity of the FISA process depends on the court’s ability to hold the government to the highest standard.  It argues the process is dependent on the government’s production to the court of “all material and relevant facts” and that this should include information potentially favorable to the target.  There are no citations.  There are soft words, such as “should.”  Is it true that all exculpatory information is to be shown to the court?  There are situations, such as in connection with a criminal prosecution, where government must turn over all exculpatory information, but is this one of those instances?  What is the standard of review of a FISA application?

The premise is incorrect.  It is not the case that all relevant, material, and exculpatory evidence must be provided.  The standard for a FISA application is a relatively low one.  According to Asha Rangappa, a former FBI agent who specialized in counter-intelligence:

“There are two ways to obtain a wiretap – also known as electronic surveillance – on U.S. persons . . ., and both include the courts. For criminal investigations, the FBI can seek a warrant under Title III of the U.S. criminal code by showing a federal court that there is probable cause to believe the target has engaged, or is engaging in, criminal activity. This is a fairly high standard because of a strong presumption in favor of our Fourth Amendment right to privacy, and requires a showing that less intrusive means of obtaining the same information aren’t feasible.

The standard for electronic surveillance for foreign intelligence purposes, though, is a little lower. This is because when it comes to national security, as opposed to criminal prosecutions, our Fourth Amendment rights are balanced against the government’s interest in protecting the country. The Foreign Intelligence Surveillance Act (FISA) allows the FBI to get a warrant from a secret court, known as the Foreign Intelligence Surveillance Court (FISC), to conduct electronic surveillance on U.S. persons if they can show probable cause that the target is an ‘agent of a foreign power’ who is ‘knowingly engag[ing]…in clandestine intelligence activities.’ In other words, the government has to show that the target might be spying for a foreign government or organization.”

“Probable cause” that there “might” be spying must be shown.  There is nothing about all relevant and exculpatory information must be provided.

After misstating the standard, the memoranda sets out to prove that the false standard was not satisfied.  Here too the analysis is flawed.  The memorandum states that the dossier “formed an essential part” of the application.  Later, the memorandum states that “Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.”  Well, first of all, was it an “essential part” or is it true that the application would not have happened without the dossier?  These are not the same.  The statement attributed to McCabe is not quoted or supported by citation.  It has been disputed.

Next is where the memorandum really veers off the tracks.  The memorandum sets out pages of what read like conspiracy theories.  The memorandum states that Christopher Steele was paid $160,000 by the DNC and the Clinton campaign.  Would it have been necessary to reveal that?  Moreover, that information appears to have come out in October of 2017, a year after the initial application in October 2016 and at least some if not all of the renewal applications.  How was that supposed to be included?

There are other examples.  The memorandum argues Steele should have been terminated in September of 2017 because of undisclosed contacts that month, before the Page application was submitted in October; but the memorandum refers to the contacts as “undisclosed” and notes that Steele concealed them from and lied to the FBI about them.  How was the FBI to reveal in October September contacts that were concealed?  The memorandum also asserts “Steele’s numerous encounters with the media violated the cardinal rule of source handling – maintaining confidentiality.”  What rule book does that come from?  The analysis veers into the investigation of George Papadopoulos, but apparently only as an opportunity to work in that Lisa Page was Pete Strzok’s “mistress.”  How is that relevant?

There are important omissions from the memorandum.  Critically, it does not explain what else was submitted to the FISA court to meet the probable cause standard.  Apparently the application was over 60 pages.  This is critical to understand whether there was probable cause to  showing there might be spying.

Whether this memorandum should have been withheld for national security reasons is unknown.  It is unclear how this relates to a vindication of Donald Trump as he has tweeted.  But purely as a legal memorandum, the document does not meet what is expected of even the most junior law clerk and would not bode well for the clerk’s employment prospects.