Thread by @GeorgeCroner

There is a need for some context here. The FBI's FISA process has received justified criticism with respect to its Carter Page FISA applications. However, it is worth noting, given the implications of this post, that a review of other FBI FISA applications identified by the /1

https://twitter.com/kguggenheim/status/1364925169517670403

DoJ IG revealed no material errors. Still, the Page situation produced plenty with which to be concerned about the FBI's FISA process. But, best not to get too far ahead on this case. The defendant, Gartenlaub, filed a motion to suppress in his criminal trial that was denied /2

by the trial judge so, unlike Page, a FISC judge reviewed the initial FISA application (likely for both surveillance and physical search authority) AND another federal judge reviewed the record in connection with the suppression motion filed at trial (concluding that the /3

FISA order was lawfully issued and the evidence properly gathered). FISA authorizes judges to review suppression materials in camera, which is what occurred here based on a showing made by then-AG Eric Holder.

While I obviously have no idea what the judge reviewed in denying /4

the motion to suppress in 2016, contemporaneous reporting suggests that Gartenlaub's counsel may have failed to fully appreciate the different focus of a FISA application vs. one for law enforcement purposes. The counsel is quoted in 2016 as saying "I need to know whether /5

they (the FISA order(s)) provided probable cause to a judge to search a man's computers and home." But, it sounds an awful lot like he's looking for evidence of criminal conduct and the probable cause for FISA purposes would have been directed not at the existence of criminal /6

activity but, instead, at whether the target of the search was an "agent of a foreign power," and whether the property searched contained foreign intelligence information. These foci of a FISA physical search are materially different than a search focused on criminal /7

activity for law enforcement purposes.

So, the DoJ IG apparently will review the FBI's conduct here, but in the form of, essentially, a post-conviction, collateral review which follows a judicial denial of a motion to suppress at trial, and occurs in the setting of a /8

criminal case where evidence was initially procured through a FISA search that would have been grounded in a probable cause inquiry focused on very different criteria than used in connection with a law enforcement search warrant. This is a very different setting than that /9

underlying the IG's review of the Page FISA applications.

/END