Case: Motion of Thomas C. Goldstein For Appointment As Amicus Curiae and For Leave to File Amicus Curiae Brief [FISA Docket Misc. 18-04]

The Foreign Intelligence Surveillance Act (FISA) requires the government to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC) before it may conduct any domestic electronic surveillance to acquire foreign intelligence information. The warrant applications are made ex parte and must include a sworn statement by a federal officer of the facts and circumstances relied upon to justify the government's belief that the target of surveillance is a foreign power or an agent of a foreign power. Furthermore, each application requires the approval of the Attorney General, which the statute defines as "the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28."

Once a FISC judge receives a warrant application, the judge can order approval of the surveillance only if the judge finds that there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Because the orders only authorize surveillance up to 90 days, the government must file an application for an extension that meets the same requirements as the initial warrant application and obtain a renewal order from the FISC for continued surveillance. For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

After then-Attorney General Jeff Sessions resigned on November 7, 2018, President Trump appointed Matthew Whitaker to serve as the Acting Attorney General under the Federal Vacancies Reform Act of 1998 (FVRA). On December 11, 2018, Thomas Goldstein filed this motion with the FISC for appointment as amicus curiae "to assist the Court in deciding whether the President's appointment of Matthew G. Whitaker as Acting Attorney General violates governing statutes and the U.S. Constitution." He argued that, due to the controversy surrounding the legality of Mr. Whitaker's appointment and the statutory authority of the Attorney General to certify FISA applications to the FISC, there were grave implications if Mr. Whitaker's appointment was unlawful.

For example, since the Attorney General "retains ultimate authority regarding the submission of FISA applications," including approving or rejecting FISA applications. Mr. Goldstein maintained that this issue was currently "particularly relevant" due to the Department of Justice's investigation of whether President Trump or his campaign colluded with a foreign power. Mr. Goldstein pointed out that that investigation had already involved the use of at least one FISA warrant, presumably referring the surveillance of Carter Page, who served as a onetime foreign policy advisor to the Trump Campaign. See In re Carter W. Page, a U.S. Person.

Furthermore, Mr. Goldstein worried that there might be significant implications for the FISC, "including with respect to unwinding official actions if the appointment is later invalidated," since actions taken by an appointee named in violation of the Appointments Clause are not protected from later challenges. Mr. Goldstein urged the FISC, as an Article III court that has inherent authority under FISA, to decide the legality of Mr. Whitaker's appointment and to ensure that "the correct Acting Attorney General appear and authorize actions before it." If Mr. Whitaker's appointment was invalidated, Deputy Attorney General Rod Rosenstein would properly become the next Acting Attorney General. Or, if the FISC did decide that Mr. Whitaker appointment was valid, it would still benefit the FISC by removing "the cloud of uncertainty over the appointment as soon as possible."

On April 11, 2019, FISC Judge Rosemary M. Collyer denied Mr. Goldstein’s motion for appointment as amicus curiae. She found that the concerns raised by Mr. Goldstein were not before the FISC, because the Government had not relied on any action taken by Mr. Whitaker as the Acting Attorney General “in any submission to the Court.” She further noted that the Senate had confirmed the nomination of William P. Barr as Attorney General on February 14, 2019.

Mr. Goldstein did not take action in response to Judge Collyer's decision, and there has been no action in the case since that date, so it is presumably closed.