In the flood of sensational news about an unverified intelligence dossier implicating President-elect Donald Trump with ties to Russia, it was easy to focus on the more scintillating (or perhaps nauseating) details.
But one piece of information from the Guardian deserved a closer look: The FBI allegedly tried to obtain a Foreign Intelligence Surveillance Act court order to surveil four of Trump’s associates during the summer. “The FISA court turned down the application asking FBI counter-intelligence investigators to narrow its focus,” the Guardian reported.
The paper also noted that Louise Mensch—a right-wing British politician who, leaked emails show, offered to help Clinton’s campaign as early as February—claimed that the Foreign Intelligence Surveillance Court had granted a more narrowly targeted FISC order in October.
The FISC almost never rejects FISA applications. So the claim that it turned down a request targeting Trump associates has been spun as proof that the FBI failed in investigating Trump associates with troubling ties to Vladimir Putin’s close associates, even as it continued to investigate Hillary Clinton and her email server. But even assuming that both claims are true—that the FBI sought a FISC order during the summer and that it obtained a narrowly crafted one in October—it is probably not the case that the original FISC rejection was all that unusual.
That’s because of a trick the FISC and the government use to keep rejections low, which then–presiding Judge Reggie Walton described in a letter to Vermont Sen. Patrick Leahy written in 2013. Before it formally submits any application, the Department of Justice sends a proposed submission to the FISC so a court attorney can evaluate whether the application fulfills all the legal requirements under the statute. If the court lawyer recommends changes, the FISC judge may tell DOJ to go back to work on the application, either asking for more information or suggesting DOJ limit its scope.
Importantly, such back-and-forth doesn’t get measured in the annual statistics showing the court approves virtually all applications. “The annual statistics … frequently cited in press reports as a suggestion that the Court’s approval rate of applications is over 99% … do not reflect the fact that many applications are altered prior to final submission,” Walton explained to Leahy in 2013.
The Guardian’s description that the FISC “ask[ed] FBI counter-intelligence investigators to narrow” the application’s focus sounds like FISC lawyers raised concerns at the proposed submission stage. That would make this application—asking to spy on the close associates of a presidential candidate—one of the “many applications altered prior to final submission” that Walton described.
Besides, the FBI is in no way limited to electronic surveillance authorized by FISA. For some applications, such as location data, the bureau occasionally chooses to use criminal courts rather than FISC because the standard of proof is lower in some states. So after FBI found the FISC would not approve this surveillance as described in the proposed application, the bureau may have been able to get a magistrate judge to approve something similar. Magistrate judges approve almost as high a percentage of surveillance applications as the FISC does.
Indeed, a widely cited Oct. 31 New York Times article on some of these investigations seems to suggest at least some of the FBI’s investigations had already advanced to a stage where they might have been able to use other means to learn more about Trump’s associates’ ties to Russia.
Ultimately, though, the scandal is not that the FBI was thwarted in its investigation of Trump’s advisers. Rather, it’s that when James Comey decided to make repeated public declarations about the course of the investigation into Clinton’s server, he adopted a double standard for how much information on ongoing investigations about presidential candidates the FBI would release. That’s a real concern. But it has little to do with the standard of review of the FISC.