Silence of 'the lambs': The deafening quietude of the FISA court and John Roberts

Two years ago this month, the Foreign Intelligence Surveillance Court (FISC) issued a warrant authorizing the FBI to spy on Carter Page, a former foreign policy adviser to President TrumpDonald TrumpUS, South Korea reach agreement on cost-sharing for troops Graham: Trump can make GOP bigger, stronger, or he 'could destroy it' Biden nominates female generals whose promotions were reportedly delayed under Trump MORE. The stated suspicion was the nominee’s campaign was colluding with Russia.

The issuance of a so-called FISA warrant was momentous and unprecedented, permitting a Democratic-run Justice Department to obtain communications inside the duly-elected GOP nominee’s campaign during its final weeks before the election.


Since that time, we have learned much about the evidence — or lack thereof — that supported the warrant.

We know, for example, the primary evidence was a dossier created by British intelligence operative Christopher Steele, but the court wasn’t told his work was directly paid for by Trump’s rival, Hillary ClintonHillary Diane Rodham ClintonGraham: Trump can make GOP bigger, stronger, or he 'could destroy it' Hillicon Valley: China implicated in Microsoft breach | White House adds Big Tech critic | QAnon unfazed after false prediction Jill Biden redefines role of first lady MORE, and the Democratic Party.

Instead, the FBI used this footnote in its warrant application to describe who hired Steele: “The FBI speculates that the identified U.S. person was likely looking for information that could be used to discredit” the Trump campaign. That’s hardly complete or forthcoming.

We also know that when the Steele dossier was submitted, it had not been fully vetted for accuracy, despite a requirement that all FISA evidence be verified. Some of the dossier’s claims later were found to be inaccurate.

We’ve painfully learned of blatant bias inside the investigation. Steele told senior Department of Justice (DOJ) official Bruce Ohr he was desperate to keep Trump from being elected president. Two of the FBI’s leads on the case, Peter Strzok and Lisa Page, were having an affair and texting each other about finding “an insurance policy” designed to “stop” Trump.

The FBI lovebirds even communicated they were applying “hurry the F up” pressure to try to rush the FISA warrant through the court before Election Day.

We recently learned that the FBI’s initial justification for opening the Trump-Russia collusion case — the belief that another campaign aide, George PapadopoulosGeorge Demetrios PapadopoulosTrump supporters show up to DC for election protest Trump pardons draw criticism for benefiting political allies Klobuchar: Trump 'trying to burn this country down on his way out' MORE, might have colluded with Moscow — quickly fell apart when Papadopoulos told an FBI informant he didn’t collude and would consider such activity treasonous.

Finally, the House intelligence committee dug up evidence that Steele and the FBI engaged in leaks with the news media about the Russia investigation, then used some of those articles to support its FISA application. That is a practice known as circular intelligence, where single-source reporting is made to look multi-sourced.

There are more exculpatory pieces of evidence I could detail but these alone make a compelling case that the initial FBI and DOJ representations to the court were, at best, flawed and, at worst, desperately biased and driven by an election clock.

And that begs the question: What do the FISC judges and Supreme Court Chief Justice John Roberts, the ultimate judicial disciplinarian, think about what happened?

After all, the FISC issued not one but four warrants allowing the FBI to monitor Page for nearly nine months into Trump’s presidency.

This week, Rep. Mark MeadowsMark MeadowsTrump attacks Karl Rove: 'A pompous fool with bad advice' How scientists saved Trump's FDA from politics Liberals howl after Democrats cave on witnesses MORE (R-N.C.), the conservative firebrand who, along with Rep. Jim JordanJames (Jim) Daniel JordanHillary Clinton brings up 'Freedom Fries' to mock 'cancel culture' Republicans call for hearing on Biden's handling of border surge Jim Jordan calls for House Judiciary hearing on 'cancel culture' MORE (R-Ohio), has driven the once reluctant House leaders to dig for much of the aforementioned evidence, sent his own missive to U.S. District Judge Rosemary Collyer. She is chief judge of the FISC.

His letter asked the obvious question: As a separate and equal pillar of government from Congress and the executive branch, does the judiciary have concerns with the FBI’s and DOJ’s conduct?

“Based on our investigation and open source information, the FISC may have not lived up to the Constitution’s protections against unreasonable searches and seizures in approving U.S. citizens targeted without probable cause,” Meadows wrote. “We write to encourage you to investigate the possibility that FISA has recently been weaponized for political means.”

It is not unprecedented for the usually secretive court to speak. In recent years, it has released documents — usually self-reported violations from DOJ and the FBI — so the public can see when the process has been abused.

Now, it is possible that the court has taken some action in the Russia case, such as holding a show-cause hearing behind closed doors, to question the FBI. But if it hasn’t, Meadows’ letter is designed to smoke out a response.


The FISC is one of the only courts in America where the accused gets no representation, and the public gets no visibility. For that reason, the DOJ and FBI are supposed to be held to a higher standard of making sure judges see “the good, the bad and the ugly” about evidence so the court can protect the accused.

But a troubling whisper has begun inside the Justice Department. “FISAs aren’t required to include exculpatory evidence,” one official told me on background in a recent text message.

That emerging sentiment should alarm all of us, no matter our political stripe.

A court that excludes legal representation for the accused almost certainly will fail to protect civil liberty if it isn’t allowed to see proof of innocence or evidentiary flaws.

Donald Trump may not be the most sympathetic victim. He has the resources to fight back, and the willingness to be bombastic. But what about those who lack either, such as an innocent imam, a wrongly suspected professor, or an unfairly accused global businessman?

For those reasons, the silence of the FISC and Chief Justice Roberts is deafening. Enough concern has been raised about the Russia case for the judiciary to offer us an explanation.
