The MEMO points out that an application is involved in getting a FISA warrant. It does not tell where the application comes from or what it involves. It does though tell us that it must be certified by a higher up in the FBI and then it goes on to the Department of Justice (DOJ) for approval. These are steps that are necessary prior to it being presented to a judge.
The MEMO indicates who the officials were who approved the four known FISA warrants against Carter Page. For the FBI it was James Comey for the first three and then acting director Andrew McCabe; for the DOJ it was Sally Yates – who by the way was concerned with the FBI’s information on General Flynn that she advised the counsel to Trump Donald McGahn that Flynn might be compromised by the Russians; Dana Boente who was acting deputy attorney general – who by the way was just picked to be the FBI’s next general counsel; and Rod Rosenstein the present deputy attorney general. The MEMO does not make it clear which of the four each approved.
These individuals approved an application that was sent to them. They had nothing to do with the creation of the application. That was done by the lower levels of the DOJ and FBI. How it works is those at that level open up an investigation, do the research and investigatory work, put it together often with help of others in their office and an assistant U.S. attorney, and then when they believe they have sufficient information for a FISA order they send it to the people mentioned for their approval. These people, like the judge, review it to see if what is set out in the application is sufficient to justify the issuance of the order.
My job on the state level was to review the affidavit of the police officers. If it met the necessary standards I would then prepare an application based on the information the police officers presented me. I would then give to the district attorney who would review it and authorize me to bring it to a judge.
You have to understand that the people who are giving the approval are a couple of steps away from those who are gathering in the information. They are looking to see if the material in the affidavit provides the probable cause, which I described in a prior post, to believe that Carter Page was involved with the Russians in some underhanded manner which was a threat to the United States. They were not required to look behind the information provided in the affidavit.
The MEMO says the FISA warrants are “dependent on the government’s production to the court of all material and relevant facts.” That is true. Those facts must present enough information for a probable cause finding.
The MEMO says “This should include information potentially favorable to the target of the FISA application that is known to the government.” This has never been a standard to get a warrant. It is a standard that is used during trial where the government must provide exculpatory evidence that it has to a defendant. You do not have to provide the reason why an informant is cooperating. That is not relevant to the finding of whether a target is probably involved in committing the criminal actions.
That a person may have an ulterior motive in providing information to authorities does not mean if he tells the truth about a criminal and provides sufficient facts to establish the search of the criminal will provided evidence of a crime does not mean that the criminal must be allowed to continue his criminal ways.
The MEMO would apply to the affidavit the rules of trial. That is not the way the system can possibly operate.