Rep. Devin Nunes admitted today on Fox News that the FISA application, which was one focus of Nunes’ memo, included a footnote that indicated the source of the information was political (check Allahpundit’s dissection of that admission here). What the application did not include, apparently, was a direct statement that Hillary and the DNC were behind it.
So the question now turns to whether this is a significant omission. This afternoon the Washington Post published a piece by Hugh Hewitt, someone who has reviewed “hundreds” of these applications earlier in his career. Hewitt argues the omission is a pretty big deal:
Having reviewed hundreds and hundreds of Foreign Intelligence Surveillance Act warrant applications as the final stop between the FBI and the desks of Attorneys General William French Smith and Edwin Meese III, I read the Nunes memo as revealing one major fact that stands out above all other revelations: The FISA warrant for surveillance on Carter Page (and the three subsequent renewals of the warrant) omitted a material fact. While the FBI admitted that the information came from a politically motivated source, the bureau did not disclose that the source had been financed by Hillary Clinton’s presidential campaign. That is a damning omission…
Upon publication of the Nunes memo, a retired federal judge emailed me: “There is not an officer of the court in the land who in the context of this particular application to the FISA court should not have identified the source of the information as having been the [Democratic National Committee] and the Clinton Campaign. If I had granted the application and then subsequently learned that the information was sourced to the DNC and the Campaign, I would have rescinded the authorization and issued a show-cause order to the Government to explain who and why this sourcing was not made known to the court. The fact (if it be that) that the Government told the court that it was a political source, but did not identify who, in this particular instance, is highly probative that the Government purposely misled the court.”
The FISA court to which the application was made might well have issued the warrant even if it knew the provenance of the intelligence. We will never know. But the non-disclosure was a breach of trust, and it will have long-term consequences for the warrant application process.
So it sounds like at least some people with knowledge of how this system usually works believe this is a major omission. Hewitt admits it’s possible that the FISA court might have approved the warrant anyway but that’s ultimately unknowable. What is knowable is that the omission appears significant and unusual.
Hewitt says it’s important to keep in mind that there are so many of these applications passing through the DOJ that it is unlikely any of the top officials, i.e. Comey, Rosenstein, were aware of it. However, he adds that if the omission was discussed in advance that would constitute “fraud.” And if those discussions (of omitting the information) involved any top officials, Hewitt says they should be held accountable. He concludes, “The non-disclosure of a material fact in an application for a FISA warrant — its minimization, indeed one could argue its camouflaging — is a very big deal and its provenance should be thoroughly investigated.”