https://law.yale.edu/system/files/area/clinic/document/fisc_rule_62_motion_for_page_orders_and_application_materials.pdf February 5, 2018

On February 2, 2018, President Trump declassified a memorandum authored under the direction of Rep. Devin Nunes, Chair of the House Permanent Select Committee on Intelligence (“HPSCI”) concerning the surveillance of Mr. Page, who had served briefly as a foreign affairs advisor to the Trump Campaign in 2016.

The Nunes Memo discloses that the initial warrant application and two renewal applications were signed by then-Director James Comey on behalf of the FBI; a final renewal application was signed by Deputy Director Andrew McCabe.

For the DOJ, former-Deputy Attorney General Sally Yates, former-Acting Deputy Attorney General Dana Boente, and Deputy Attorney General Rod Rosenstein each signed one or more of the FISA warrant applications.

The Nunes Memo further discloses some of the content of the applications, as well as certain purported omissions it identifies:

• “[t]he ‘dossier’ compiled by Christopher Steele . . . on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application”;

• “[n]either the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton Campaign, or any party/campaign in funding Steele’s efforts”;

• “[t]he initial FISA application notes [Christopher] Steele was working for a named U.S. Person, but does not name Fusion GPS and principal Glenn Simpson”;

• “[t]he [initial] application does not mention Steele was ultimately working on behalf of—and paid by—the Clinton campaign, or that the FBI had separately authorized payment to Steele for the same information”;

• “[t]he Carter Page FISA application . . . cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff, which focuses on Page’s July 2016 trip to Moscow”;

• “[t]he Page FISA application . . . assesses that Steele did not directly provide information to Yahoo News”;

• none of the Page FISA applications reference that, in September 2016, Steele reportedly told then-Associate Deputy Attorney General Bruce Ohr that he “was desperate that Donald Trump not get elected and was passionate about him not being president”;

• none of the applications reference Ohr’s relationship with Steele and Fusion GPS, including that Ohr’s wife was employed by Fusion GPS;

• “the FISA application relied on Steele’s past record of credible reporting on other unrelated matters,” but did not disclose Steele’s reported “anti-Trump financial and ideological motivations”; and

• “[t]he Page FISA application . . . mentions information regarding fellow Trump campaign advisor George Papadopoulos.”

…

There is no longer any reason why this Court need maintain the entirety of its Page orders and the related warrant application materials in secret.

Given the extent of information about those orders and applications made public by the President and the HPSCI, release of the orders and materials with appropriate redactions should now be feasible.

See In re Orders of this Court Interpreting Sec. 215 of the Patriot Act, 2013 WL 5460064, at *8.

Moreover, continued classification of the entirety of this Court’s orders and the warrant application materials is no longer proper in light of President Trump’s declassification of the Nunes Memo.

Under the current classification regime, information may only be classified when, at a minimum, its “unauthorized disclosure . . . reasonably could be expected to cause damage to the national security.” Exec. Order 13,526, 75 Fed. Reg. 707, § 1.2(a)(3).