"The Nunes Memo Is All Smoke, No Fire"

My op-ed on the Nunes memo.

|The Volokh Conspiracy |

Yesterday's New York Times published my op-ed on the Nunes memo. It begins:

The #Memo has been released. This document from House Republicans promises to detail government abuses surrounding 2016 election surveillance. But the memo is more confusing than illuminating. It doesn't so much provide evidence about abuses as make arguments that can't be evaluated based on the facts it discloses.

Even assuming the memo's claims are true — which we can't determine from the document itself — it still does not establish an "abuse" of the foreign intelligence laws.

I probably should have posted a link to that op-ed yesterday rather than today, as the memo story is moving quickly and my piece (written Friday) is probably outdated by now. Better late than never, I hope.

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198 responses to “"The Nunes Memo Is All Smoke, No Fire"

  1. You and Bull Cow are drinking out of the same trough. You are absolutely desperate to protect your “institutions” and the establishment and are willing to lie, twist, obfuscate and play pretend to try to prop up the house of cards. You don’t like that your buddies got caught, and that your media pals no longer have any credibility in the eyes of many of the public. Bull Cow has gone over the deep end, and now accuses anyone who doesn’t toe the party line of “political ignorance.” You are more worried about your friends inviting you to cocktail parties, so you reject principled libertarianism and fidelity to the Constitution in exchange for globalism, because you, like Bull Cow, somehow think that you will be part of the “elite” oligarchy.

    1. I think you could enhance your extremely normal posts by giving Prof. Kerr an obsessively-used nickname as well.

      1. As soon as Kerr posts a photo of a bull and calls it a cow, I’ll do that.

    2. It appears a few Conspirators — Kerr, Post, the libertarian (Somin), probably Adler — are willing to risk the wrath of the backward and bigoted by rowing against the Trumpian tide that is revealing the character of movement conservatism and the Republican electoral coalition.

      Just a few, though.

      Must be time for another round of whining about how strong faculties and schools don’t want to associate with enough strident movement conservatives to please the Conspirators.

      If there are libertarians at reason.com to tire of hosting this right-wing blog, the next stop should be FreeRepublic.

  2. We understand its a memo, not a judgement. Much of it depends on who you believe at this point. Congressman Gowdy claims there would have been no warrant except for the Steele dossier, Congressman Schiff claims the Nunez Memo lacks completeness.

    Kerr demonstrates a way where both could be true.

    1. Um, I believe Gowdy says the opposite:

      WASHINGTON (CNN) — South Carolina Republican Rep. Trey Gowdy said the recently released, controversial GOP memo alleging FBI abuses of its surveillance authority does not have “any impact on the Russia probe,” and even without the Steele dossier, there would be a Russia investigation.
      “There is a Russia investigation without a dossier,” Gowdy said in an interview that aired Sunday on CBS’s “Face the Nation,” days after he announced his decision not to seek re-election.

      1. That is a negative pregnant denial, if ever I have seen one. There might still be a Russia investigation, but would there have been FISA warrant?

        1. Hey, you’ll read whatever you want into whatever you want, just like so many are doing with the memo itself.

          The answer to your question is obviously yes, considering that Carter Page was a person of interest long before Fusion GPS was retained or Steele was attached to the dossier.

          Here’s a question: Whatever one might say of the initial FISA warrant, the memo itself clearly indicates that the warrant was extended multiple times, meaning that the investigators were finding something worth looking into. That means potential evidence of criminal activity. So, by insisting that the initial warrant should have been obtained without relying on the Steele dossier, you’re essentially arguing that the further criminal activity that the FBI was apparently uncovering should be ignored.

          Why?

          1. Fruit of the poisonous tree. Very much black letter law.

            1. FISA is not a normal court. Nothing can be used in a criminal conviction anyways.

          2. Poisonous tree, fruit of. Not to mention, said dossier was used as continuing evidence in each renewal, even AFTER the FBI fired Steele for bootstrapping the credibility of the dossier in question. They failed to notify the FISA court of this fact in any of the renewals of course.

            1. Made-up facts are the best facts.

              1. David,
                I think you’re wasting your time. 35-45% of the country will believe literally anything and everything that helps Prez Trump. You’re simply not going to convince them otherwise.

                Fortunately, many of the Independents who voted for him in ’16 have fled, and it will be tough sledding to bring them back into the fold.

                Raven makes the argument: “Yes, the initial warrant was fine. And the first renewal. And the second renewal. etc etc. But once the dossier was added into the warrant application, more info should have been included [I agree that warrant applications should include more info about bias, by the way.], and since it was not–I blindly accept Fox News’ declaration that it was not, and therefore put the burden of proof on the accused–all info from all the wiretapping is fruit of the poisonous tree because . . . something something something.”

                Another blogger (Prof Volokh? Someone else??) posted a few days ago about this, noting that, in fact, warrant applications are very often lacking in terms of disclosure of bias. Now, if you want to argue that the law should change; you’ll probably get lots of agreement…or, at least, lots of people willing to engage in that discussion. But when you state that the law is opposite what it actually is . . . well, your argument will be laughed at. At least, laughed at by those outside that 35-45%

                1. Another blogger (Prof Volokh? Someone else??) posted a few days ago about this, noting that, in fact, warrant applications are very often lacking in terms of disclosure of bias.

                  Actually, that was Orin again.

                  (Orin’s the 4th amendment expert around here.)

                  1. Orin’s the expert on how f’d up our warrant system is. The problem appears to be that he’s ok with it being f’d up.

                    1. Or at least OK is OK with following the law until you can get it changed, versus suddenly finding the system needs specific and focused reforms RIGHT NOW that shield your sacred cow, and possibly no one else.

              2. You’ve got that right. They always fit the narrative better than the others.

            2. Not to mention that they used Yahoo articles as corroboration of the dossier even though they came from the same source.

      2. This was never meant to destroy the “Russia investigation” Thanks for identifying it. Because special counsels are required by statute to investigate a specific named crime. Which no one seems to identify.

        This memo proves that the FBI and DOJ lied to a FISA court. Using fake intell to get a warrant to spy on American citizens.

        Notice that Mueller as delayed sentencing on Flynn. Maybe because the basis for the contradicting testimony is based on a flawed warrant, and the corruption of the agent in charge of the questioning.

        1. This memo proves that the FBI and DOJ lied to a FISA court.

          The memo — even if it were actual evidence rather than some guy’s assessment of the evidence — does not identify a single lie by the FBI or DOJ.

          Maybe because the basis for the contradicting testimony is based on a flawed warrant,

          No idea on what planet this represents English. What contradicting testimony? There’s been no testimony; Flynn pleaded guilty. What flawed warrant? Even if we pretend that the FISA warrant everyone is discussing was obtained by Hillary Clinton holding a gun to a judge’s head and forcing him to sign the warrant, it would be utterly irrelevant, since that was a warrant for Carter Page and has nothing whatsoever to do with Flynn.

          1. The memo — even if it were actual evidence rather than some guy’s assessment of the evidence — does not identify a single lie by the FBI or DOJ.

            Are you saying that a fair reading is that the memo alleges no wrongdoing by the FBI or DOJ involving a lie by them? The memo is not asserting that the inclusion of the Yahoo piece was to wrongly imply that it was independent corroboration of the Steele dossier, since otherwise there would have been no reason for including it? The article is not asserting that by not telling the judge all the known facts concerning the origin of the dossier the FBI was, in effect, lying to the judge about the absence of any other relevant information?

            What do you think the memo is saying?

            1. The alleged nondisclosure was 1) actually disclosed, according to the Dem’s memo, and 2) not required under the laws, and 3) arguably not material since partisan does not mean false.

              1. The alleged nondisclosure was 1) actually disclosed, according to the Dem’s memo, and 2) not required under the laws, and 3) arguably not material since partisan does not mean false.

                The OP said that the memo, if it were actual evidence, does not identify a single lie. Your reference to the Dem’s memo or to what was “actually” disclosed is irrelevant, as is your reference to what is required by the laws and what is material. The memo does identify a single lie.

              2. Sacastr0,

                I would’ve thought you quick enough to pick up the parse. It wasn’t disclosed that Hillary funded the dossier. The supposed latest claim was that it was disclosed that Steele was a partisan.

                There is a difference, but you and your typical uncritical self just gobbled it up without thinking about it at all.

                1. What is the difference? How is Hillary’s campaign worse than some other political operative?

              3. The Woods Rule speciically states that intelligence used in a FISA warrant application must pass rigorous varification.

                The FBI has testified repeatedly that the Steele Dossier was never able to be varified

                1. The Woods Rule

                  I love how people who can barely spell the word “law” are confidently opining on legal matters that they had never heard of a week ago.

                  There is no “Woods Rule.” There are Woods procedures, which are, as far as I can tell, simply internal DOJ policy, not binding legal requirements.

            2. Are you saying that a fair reading is that the memo alleges no wrongdoing by the FBI or DOJ involving a lie by them?

              I try to speak precisely, so you should assume that I am saying exactly what I said: The memo does not identify a single lie by the FBI or DOJ.

              Not one. Zero. There is not a single statement in the memo saying, “The FBI/DOJ said such-and-such, even though they knew it wasn’t true.”

              The memo certainly tries to insinuate wrongdoing on the part of the FBI/DOJ; I’m not denying that. (In fact, I expressly stated it elsewhere in this discussion thread.) But it doesn’t actually identify anything.

              The memo is not asserting that the inclusion of the Yahoo piece was to wrongly imply that it was independent corroboration of the Steele dossier,

              Correct; the memo is not asserting that. The memo is, again, insinuating that. But it very carefully does not say that.

              The article is not asserting that by not telling the judge all the known facts concerning the origin of the dossier the FBI was, in effect, lying to the judge about the absence of any other relevant information?

              Setting aside that “not telling all the known facts” is not “lying,” the memo is not saying that, no.

              1. Correct; the memo is not asserting that. The memo is, again, insinuating that. But it very carefully does not say that.

                Why would the memo be careful to insinuate but not to assert? What is the distinction in this context that makes the difference important or relevant?

                1. Why would the memo be careful to insinuate but not to assert?

                  This is the dividing line between the ostensible adults and the genuine adults.

                  1. This is the dividing line between the ostensible adults and the genuine adults.

                    What is the different meaning of the two terms in this context that is important or relevant?

                2. Why would the memo be careful to insinuate but not to assert? What is the distinction in this context that makes the difference important or relevant?

                  The distinction is that if one asserts that someone is guilty of something, people may expect some evidence to be presented. If one merely insinuates it, one can avoid accountability. Although all politicians lie, few are as brazen and shameless as Trump about it; most politicians try to do so in a way that they have deniability, because they’d be embarrassed if they explicitly said “X is true” when X isn’t true.

                  1. David Nieporent:

                    So Nunes, who said “So, these are not honest actors. They know they are not being honest. ?Yes, they wouldn’t have received a warrant without the dossier. The dossier was presented to the court as it was — as if it was true. ? I mean, these guys tell so many lies, you can’t keep track of them,” was afraid to make a straightforward charge that the Yahoo piece was included as independent corroboration, because he would be embarrassed if that couldn’t be later demonstrated?

                    And the memo says that “This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself to Yahoo News,” and avoids saying “the article was included in order to corroborate the Steele dossier” so that later the proponents of the memo would be able to deny that they ever suggested that the article was included in order to corroborate the Steele dossier, and thus avoid the embarrassment of having said that?

                    But for some reason the memo had no difficulty in saying that the Ohrs’ relationship with Steele and Fusion GPS was concealed from the FISC. Is asserting concealment from the FISC, if found to be wrong, not subject to the same embarrassment as asserting that the article was included to corroborate the dossier? How does this work?

                    Are you really making these claims with a straight face?

                    1. Nunes is all in.
                      The memo is not.

                      Huh.
                      Also concealed and left out are two rather different things. The difference lies largely in the insinuation.
                      Add in now that the source was identified as paid for by a campaign and the ‘left out’ becomes yet more careful parsing to insinuate.

                      Are you really making these claims with a straight face?
                      You know what says more about you than those you’re replying to? Your need to keep underlining how incredulous you are at those who disagree with you.

                    2. You know what says more about you than those you’re replying to? Your need to keep underlining how incredulous you are at those who disagree with you.

                      I wasn’t aware that I did it that often. But you’re right. I ought to just stop participating in the discussion before making fun of somebody else’s argument.

      3. Yeah, Sarcastro, that is not a claim that the lack of the warrant would have stopped there from being an investigation. Bad Sarcastro.

        1. You are right, I didn’t read that the scope was just the warrant. In which case, doesn’t the warrant predate the dossier?

          1. According to the memo:

            Furthermore, Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.

            According to this, the dossier had to precede the warrant.

  3. Are we back in Lewinski days, when “no absolute proof” meant “no reason to investigate”?

    1. “Are we back in Lewinski days, when “no absolute proof” meant “no reason to investigate”?

      Obviously not, else why have the Mueller investigation?

      1. That’s “no reason to investigate Democrats”.

        1. PfP, we have indictments FFS.
          Trump also seems to be freaking out about the investigation for some reason.

          No leaks from the investigation does not mean no proof.

          1. You have 2 lying to the FBI, which one of them was a lie regarding legal activities (not sure why you think this helps you). And the other indictment is money laundering from years prior to the Trump campaign.

            Still waiting on what exact crime the Trump administration committed that revolves around the actual election.

            1. Having people lie to the FBI during a collusion investigation is hardly ‘no proof of any crime.’

              Again, no leaks does not mean no crime.

            2. Still waiting for a named crime. None as of yet

              1. Before you jump to conclusions, you, like the rest of us, will have to wait for Mueller to present his results.

  4. According to Sheryl Atkinson there may be more problems for those signing the FISA Documents
    http://thehill.com/opinion/cam…..procedures

  5. “Even assuming the memo’s claims are true ? which we can’t determine from the document itself ? it still does not establish an “abuse” of the foreign intelligence laws.”

    Well, actually, Orin, it ~does~ establish an ” ‘abuse’ of foreign intelligence laws”–unless refuted by other data. All the FBI needs to do is to provide that refutation. If all that they disclosed to the FISC was Steele’s info, that’s plainly abuse, as described in the memo. If something else was disclosed, what was it?

    At this point, what’s being said is that we should trust the FBI and DOJ to have been honest and aboveboard about having provided data that support issuance of the warrants. So far, no one has come forward with information about that. I suppose they would argue that to provide those data would be to compromise the sources. And yet, they’ve provided Steele. If they believe that they need to protect sources, why have they given him up to us?

    Orin doesn’t seem to place consistency very high on his list of virtues. Nor do the FBI or DOJ. All seem to be “economical with the truth.”

    1. If all that they disclosed to the FISC was Steele’s info, that’s plainly abuse, as described in the memo. If something else was disclosed, what was it?

      You realize that we’ll have access to the necessary contextual information only if the Republicans on the IC and Trump agree to release it, right?

      If you want to see a troubling breakdown of the normal political and legal processes that constrain the abuse of power when gathering and releasing intelligence information, look no further than Nunes himself.

      1. Testimony has already determined that the dossier was used in the FISA application. That’s a fact and a crime.
        The notion that some other evidence was used, has no relevance. If the other evidence could not stand alone, than supporting it with fake evidence, is still a crime

        1. Testimony has already determined that the dossier was used in the FISA application. That’s a fact and a crime.

          Which section of the U.S. Code does it violate?

          1. Which section of the U.S. Code does it violate?

            Since applications to the FISA court are under oath, this would appear to fall under 18 U.S. Code ? 1621, perjury.

            1. What sworn statement in the warrant application was false? Nobody, including Nunes, has identified one yet.

              1. What sworn statement in the warrant application was false? Nobody, including Nunes, has identified one yet.

                You’ll have to ask iowantwo. He’s the one who made the charge. I just supplied the U.S. Code section.

                Of course, it’s difficult to identify false statements when the application has not been released and is still top secret. As for falsehoods, Nunes did say “So, these are not honest actors. They know they are not being honest. ?Yes, they wouldn’t have received a warrant without the dossier. The dossier was presented to the court as it was — as if it was true. ? I mean, these guys tell so many lies, you can’t keep track of them.”

                So even if Nunes hasn’t identified specific falsehoods (but he did charge them with presenting a false dossier to the court as if it was true), it looks like he will not be reticent to do so in the future.

                1. Of course, it’s difficult to identify false statements when the application has not been released and is still top secret.

                  Difficult for us, but not for the HPSCI. And yet, they did not. Nunes did not even allege, let alone prove, such a false statement.

                  As for falsehoods, Nunes did say

                  …in an interview on Fox News. Not in the memo which represented actual results of the committee’s work. Anyone can say any crazy thing on tv without having to worry about being called on it. Contrary to what you wrote, it looks like he was very reticent to do so in any sort of formal setting.

                  1. Nunes did not even allege, let alone prove, such a false statement.

                    So the committee Republicans wanted to imply wrongdoing while leaving themselves the option to later deny that they ever meant to accuse anybody of anything, and let’s just forget the whole thing. And this is because they couldn’t bear the thought that Democrats might at some point say that they failed to provide sufficient evidence to back up their claims. At that point they wanted to be able to say that they never made any claims.

                    What have you done with David Nieporent? He has on occasion been wrong but he has never exhibited this level of Trump Derangement Syndrome. Your attempt to assume his identity has been an abysmal failure. I refuse to continue this dialogue with an imposter.

              2. They had to swear as to the veracity of the dossier. If providing intelligence known to be false is not a crime, explain ‘fruit of the poisonous tree’

                1. The “fruit of the poisonous tree” doctrine has nothing to do with anything being a crime. And what intelligence did anyone provide to anyone that was “known to be false”?

                2. The “fruit of the poisonous tree” doctrine has nothing to do with anything being a crime. And what intelligence did anyone provide to anyone that was “known to be false”?

        2. iowantwo,
          Here’s the correct order:
          1st: Post
          2nd: Get drunk.

          When you reverse the order, you come up with hysterically funny (to us) posts.

          Heck; I need a good laugh nowadays. Keep those posts coming!

      2. In general, I agree with Professor Kerr’s assessment of the memo.

        However, I feel that I must comment on this:

        “normal political and legal processes that constrain the abuse of power”

        Unicorn farts.

      3. Nunes using a codified procedure to release classified information is an abuse?!? You prefer the random leaking of information by democrats instead?

        1. LOL quick on the trigger, Jesse. Read tekcoyote again.

  6. Unless the memo is false in some major respects, it absolutely does reveal abuses. They used the dossier as evidence, and ‘corroborated’ it with a news account they knew was just the dossier’s author leaking its contents to the media. But didn’t tell the FISA judge that.

    Bluntly put, if you don’t find what’s claimed by the memo abusive, your judgment is shot.

    1. Unless the memo is false in some major respects, it absolutely does reveal abuses.

      Well, the memo could be false; without the evidence, there’s no way to know. But regardless, the memo does not say what you think it says. It insinuates some of it in such a way as to make people like you jump to some of those conclusions, but it doesn’t say them. Among the things not actually said in the memo:

      1) The FBI corroborated the dossier w/ the Isikoff news account. (The memo says that the Isikoff story wouldn’t have corroborated the dossier, but it doesn’t say that the FBI tried to do so.)

      2) The FBI “knew” that the Isikoff news story “was just the dossier’s author leaking its contents to the media.” (In fact, the memo actually says the opposite, at least wrt the initial application. “Steele improperly concealed from and lied to the FBI about those contacts.”)

      3) The FBI “didn’t tell the FISA judge that.” Obviously the FBI could not have told the FISA judge about it for the initial application, since they didn’t know. But it does not even hint that the FBI did not tell the FISA judge about it for the renewal applications.

      Bluntly put, if you don’t find what’s claimed by the memo abusive, your judgment is shot.

      Well, I can believe Brett Bellmore, who still can’t figure out if Obama was born in the US, or Orin Kerr, who is not only a subject matter expert but one of the least partisan and most cautious analysts out there.

      1. Well put.

      2. Among the things not actually said in the memo:
        1) The FBI corroborated the dossier w/ the Isikoff news account.

        Come now. By saying “This article does not corroborate the Steele dossier” the memo was of course implying a contradictory assertion by the FBI. Why would that information be included in the FISA request if it came from the author of the Steele dossier? Doesn’t its inclusion assert independent verification? What would be the point of listing the same source twice?

        2) The FBI “knew” that the Isikoff news story “was just the dossier’s author leaking its contents to the media.”

        The memo says that Steele admitted in British court filings that he met with Yahoo News, and that Perkins Cole was aware of Steele’s media contacts, and that the FBI was aware of Steele’s media contacts, but you are saying that the memo is not providing this information in order to assert that the FBI knew that the Yahoo story derived from Steele?

        3) The FBI “didn’t tell the FISA judge that.”

        The memo says “The Page FISA application incorrectly assesses that Steele did not directly provide information to Yahoo News.” If we are “assuming the memo’s claims are true” as the article does, then the memo is saying that the FBI did not tell the judge. Even if the FBI was unaware that the Yahoo piece came from Steele, it remains the case that the FBI “didn’t tell the FISA judge that.”

        1. Weird the memo implies but doesn’t go on to actually say the FBI said that, no?
          And that you need to connect some dots to argue that the FBI knew of the Isikoff leak because the memo never actually says it?
          And funny how the memo seems to conflate or not mention the FISA renewals?

          Man, someone needs to get better at writing clear memos, or else people might start to get some wrong ideas!

          1. Weird the memo implies but doesn’t go on to actually say the FBI said that, no?
            And that you need to connect some dots to argue that the FBI knew of the Isikoff leak because the memo never actually says it?

            More weird than that is someone who says that when the memo asserts “This article does not corroborate the Steele dossier” it is not clearly saying that the article was included in order to corroborate the Steele dossier. Maybe the article was intended to be a repetition of the Steele dossier and not as additional corroboration. It happens all the time that people, when listing their arguments, will list the same argument twice.

            Equally weird is someone who says that when the memo points out that (a) public court documents make clear Steele’s relationship with Yahoo News, and (b) Perkins Cole knew of Steele’s media contacts, and that (c) the FBI itself knew of Steele’s media contacts, these facts are not supplied to show that the FBI must have been aware that the Yahoo piece came from Steele. Rather, these facts were supplied for some other reason, but what was that?

            1. These facts are supplied to imply but the memo never states. Smoke is not fire. You are literally arguing smoke is fire. See the OP.

        2. Come now. By saying “This article does not corroborate the Steele dossier” the memo was of course implying a contradictory assertion by the FBI.

          That is literally my point. (Orin’s too, as I read his post.) The memo “implies” lots of things that it doesn’t actually state. The memo was (according to the NYT, and common sense) drafted by an attorney; an attorney knows how to say, “The FBI said X” when he wants to. The memo doesn’t say that.

          Why would that information be included in the FISA request if it came from the author of the Steele dossier?

          Perhaps to inform the judge that some of the allegations against Page were already public knowledge. Perhaps some other reason of which we are unaware, since we don’t know the context of the statements.

          1/2

          1. The memo says that Steele admitted in British court filings that he met with Yahoo News, and that Perkins Cole was aware of Steele’s media contacts, and that the FBI was aware of Steele’s media contacts, but you are saying that the memo is not providing this information in order to assert that the FBI knew that the Yahoo story derived from Steele?

            Correct. Again, the memo actually says exactly the opposite: “Steele should have been terminated for his previous undisclosed contacts with Yahoo and other outlets in September-before the Page application was submitted to the FISC in October-but Steele improperly concealed from and lied to the FBI about those contacts.

            Steele’s admissions in British court filings came months later than the time of the FISA application. (They came after Buzzfeed published the dossier, in fact.)

            Even if the FBI was unaware that the Yahoo piece came from Steele, it remains the case that the FBI “didn’t tell the FISA judge that.”

            As I said in the very post you’re responding to: “Obviously the FBI could not have told the FISA judge about it for the initial application, since they didn’t know. But [the memo] does not even hint that the FBI did not tell the FISA judge about it for the renewal applications.”

          2. Perhaps to inform the judge that some of the allegations against Page were already public knowledge.

            This would mean that they had an origin different from the Steele dossier, but I thought it was agreed that they did not.

            Perhaps some other reason of which we are unaware, since we don’t know the context of the statements.

            It’s really a matter of logic. If the Yahoo article derived entirely from the Steele dossier then how could it add any evidence beyond that added by the dossier? You can say “maybe something,” but the most likely answer is “nothing.”

      3. Well, I can believe Brett Bellmore, who still can’t figure out if Obama was born in the US, or Orin Kerr, who is not only a subject matter expert but one of the least partisan and most cautious analysts out there.

        [Most of the Volokh Conspiracy’s carefully cultivated commenters nodding and thinking, ‘Bellmore, obviously.’]

      4. The FBI used intelligence they tried, and failed to varify.

        Thats a fact

        1. We don’t know what they’ve failed to verify yet because the investigation is ongoing. Maybe you’re right, but there’s no evidence either way.

        2. No, it’s a presumption. We don’t know what they could or couldn’t verify, or for that matter what they used or didn’t use.

          Note — and this is something a lot of Trumpistas seemingly fail to understand — “unverified” does not mean false. Many things are unverified — indeed, unverifiable — but true.

  7. I’m finding it really hard to understand the author’s argument. There isn’t a problem with the DNC using the FBI and FISA court as weapons in a partisan political attack, ordered up by their political enemies? That seems to be the allegation of the Nunes memo. You can deny its accuracy or say that the evidence is insufficient or that it lacks the context to let us judge it, but that is the claim. The claim is absolutely abhorrent.

    1. I’m finding it really hard to understand the author’s argument.

      Yes. We agree.

      There isn’t a problem with the DNC using the FBI and FISA court as weapons in a partisan political attack, ordered up by their political enemies?

      I think that would be a huge problem, but there’s no evidence that any such thing happened. The Nunes memo does not say anything like that.

      1. Actually I think the Nunes document says exactly that. The Fusion GPS dossier was exactly designed to order up the Code Red on the Trump campaign.

        Think about it for a second: the News Media wouldn’t bite on the Dossier because it was so thinly sourced, but the FBI jumps in with both feet?

        1. Actually I think the Nunes document says exactly that. The Fusion GPS dossier was exactly designed to order up the Code Red on the Trump campaign.

          The Nunes document has no evidence about what the dossier was “designed” to do. How could it?

          But in any case, if that’s what the dossier was designed to do, then why did it target Carter Page, rather than someone much more significant in the campaign? Why not Trump Jr.? Or Kushner? Or at least Manafort?

          1. And even if the dossier is designed to do that, this does not mean it does not contain facts worthy of investigation.

            1. And even if the dossier is designed to do that, this does not mean it does not contain facts worthy of investigation.

              But the credibility of the dossier has to be established before the FISA application is approved by the judge, and the Director of the FBI referred to it as “salacious and unverified.” So, by all means investigate those facts, but not via a FISA warrant until its credibility has been established.

              1. Considering that anonymous tips are OK in warrants I don’t think credibility is a big thing.

                1. You thinking anonymous tips should be sufficient for the federal system to spy on American citizens is enough to show why many here find you silly.

                  1. You thinking anonymous tips should be sufficient for the federal system to spy on American citizens is enough to show why many here find you silly.

                    Nobody said anything about “sufficient.” The issue here is whether it is acceptable to use them as part of a probable cause determination, not whether an anonymous tip by itself with no other information is enough.

                    And if you think otherwise, you’re going to have to take it up with the Supreme Court. (For some reason, lots of people talk about the law as if it were what they wanted it to be rather than what the courts have said it is.)

                2. Considering that anonymous tips are OK in warrants I don’t think credibility is a big thing.

                  So if the current administration wants to wiretap the other party during a presidential election they should be able to do so based on an anonymous tip? Credibility is not a big deal here?

                  1. If you have a problem with the warrant process, we can talk about that. But this is so clearly about men not laws.

                    1. Also see DMN’s discussion of how unverified tips can be part but not sufficient, so your ‘tap the opposition based on nothing’ hypo fails.

            2. It doesn’t contain any “facts”. I keep hearing that much of it has been verified, I haven’t heard one material assertion that has been verified other than Carter Page went to Moscow, and that was hardly a smoking gun.

              1. http://www.newsweek.com/trump-…..now-777116 discusses what’s been verified, and what’s not. It’s more than just Carter Page.

                And your standard of proof is now ‘verified facts only?’ Well, criminal justice will have to become very different than it has been in the modern era!

          2. Because once you have a FISA warrant to do surveillance on anybody in Trump’s circle, you’ve got your foot in the door and can conduct surveillance on all of them.

            Incidentally, of course.

            1. For example there was the “unmasking” requested by Susan Rice of the names of Trump transition officials who had been caught speaking to foreigners who were under surveillance. If Carter Page was under surveillance then so was everybody he came into contact with within the Trump transition.

              1. Which has a procedure and is completely legal, and is also thusfar all Nunes smoke no fire.

                1. Legal does not mean it is not abusive. Many corrupt regimes throughout the world have implemented corrupt laws. Try thinking for once.

                  1. The way you deal with bad laws is you change them by the appropriate process. You do not, after the fact, selectively become outraged when they touch your political guy. Because selectivity like means you are just meeting corruption with corruption.

                    1. The way you change laws is have Congress investigate the conduct that it feels needs to be addressed, make their findings public, and eventually draft legislation to address the the situation.

                      Isn’t this pretty much what the House Intelligence committee is doing?

              2. If Carter Page was under surveillance then so was everybody he came into contact with within the Trump transition.

                Since he was no longer part of the campaign by that time, then that would likely be nobody.

          3. We have Steele’s testimony in British courts on what the dossier was designed to do. Sorry we can’t help your ignorance in this regard. The memo is not the only source of information available on motivations.

            1. We have Steele’s testimony in British courts

              We do? Please provide me the link; I’d like to take a look. Thanks.

        2. Wait. I’m confused. You say the News Media–who presumably were in the bag for Clinton and presumably wanted to hurt Trump during the campaign–deliberately sat on juicy details that would certainly have hurt him (to what extent is debatable)??? Wow, so the media were actually acting to help ensure a Trump victory? Thanks for that admission…this is breaking news.

          Or are you saying that the mainstream media actually have integrity and they refused to use information (EVEN if it would get Hillary elected) that they could not independently verify? When you sit down and calmly think about this situation; can you allow for even the possibility that our government intelligence agencies–with their *huge* resources–might sometimes be able to learn things that the media cannot? (And vice versa, of course.)

          I do not know much about the dossier. But my understanding is that loads and loads of it HAVE been verified, while lots more remain uncertain (Trump’s fascination with sex + urination, for example.) If the FBI was able to verify A, B, E, F, and H in the dossier, could not prove or disprove G or I or J, and disproved C and D, I see nothing at all wrong with the FBI using the verifiable information in a warrant application. In all non-Trump-related investigations, this is done ALL THE TIME.

          1. It’s not that complicated: The media are in the bag for Clinton, and did try to hurt Trump during the campaign, but they aren’t cartoon cutouts, they’re real people, and if a source of dirt was sufficiently indefensible, they’d pass on it.

            If only because hurting Trump required retaining some degree of credibility.

            Finally, the memo is very short, and necessarily does not go into detail. I expect more detail will be forthcoming, I’m especially looking forward to the IG report, which I understand won’t be much longer.

            1. You see how you’ve conveniently made your scenario unfalsifiable, eh? It’s all indefensible except for the indefensible stuff they leak.

            2. You need to get together with Michael Cook and straighten out your stories. He believes the IG’s report “will have thousands of pages, Many of these will be whistleblower complaints from ordinary FBI agents who saw what the small partisan cadre at the top of their leadership were doing and complained directly to the I.G.”

              Wait, nevermind, I see the difference. The actual report will be a few pages, but by the time everything written between the lines has been studied, it will work out to thousands of pages.

              1. Sorry I was unclear, you can’t edit here. I meant that the wait for it won’t be much longer.

                Obviously the report will be quite a bit longer.

          2. “I do not know much about the dossier. But my understanding is that loads and loads of it HAVE been verified”

            Should have stuck to your first sentence. The only verified information on Page is in regards to the speech he gave in Russia (same University that Obama gave a speech at) as it was public information.

        3. the News Media wouldn’t bite on the Dossier

          When, and why, did wingnuts embrace random capitalization?

          1. Thank you for the first substantive comment I’ve ever seen you make.

            1. Gratitude is nice, but I would prefer an answer to the question(s).

          2. My local stopped capitalizing all proper nouns except names a few years ago. I still don’t know why or who said that was okay.

      2. I’m glad you think that would be a huge problem. No evidence? That seems way too strong a statement. No proof, maybe.
        There seems to be hard evidence that (1) people who were virulently anti-Trump were involved on the FBI side. and that (2) that an extremely unreliable piece of partisan oppo research was used as a part of the submission in three successive FISA requests. (3) It is _claimed_ that that piece of unreliable partisan oppo research was an essential irreplaceable part of those requests. (4) It is claimed that the submissions intentionally left out the very important information that the source of the oppo research was so partisan.
        I’ve probably left plenty of stuff out. But that’s enough; calling that no evidence is unreasonable. It’s not proof, but it’s enough that fair-minded people ought to be saying, “Well. I can see why conservatives no longer trust the FBI, and can’t trust that the FBI’s _other_ investigation of the Trump campaign is going to be fair. Something has to be done to make absolutely sure that they’re wrong, something by someone independent. No one would be happier than I if it turned out to be nothing – but they are in their rights to consider themselves threatened.”

  8. I was wondering if Orin saw the McCarthy piece at National Review

    It appears that he has a few problems with Orin’s analysis:
    1. McCarty asserts that it isn’t Steele’s credibility that needs to be verified by the FBI….but Steele’s sources….especially since most of the claims are second hand. Still, any corroboration WOULD in fact be with regards to the sources and not with regards to Steele.

    2. McCarthy claims the FISA law requires not only that the target be identified as a foreign agent, but that there must be an underlying crime. There does appear to be lots of crime alleged in the dossier and denied by Page which might make the dossier more important, not less….so again the corroboration appears to be key.

    * How are we to interpret McCabe’s non-quoted impression that there would have been no surveillance without the dossier? Is one side clearly lying about “essential”? A lot of the the dossier appears to be information collected through Steele’s network, provided by anonymous sources. How much detail is required by such informants to make them “trusted”? Would vague collaboration of some details be sufficient to elevate the dossier?

    * Is the FISC judge a rubber stamp for these bona fides….does he/she have to trust that the senior FBI has run this down…or could he/she actually require the FBI to show the linkage? If there is not much there there, is the judge equally culpable?

    1. He has responded, on the tweeter.

    2. OK responded to McCarthy’s critiques in a thread on twitter. His distilled points (apologies if I miss something material):
      1. McCarthy is making a different argument than Nunes (double hearsay vs. lying by omission). Because we don’t know what other evidence was used along with the dossier, we can’t know that the FISC judge was wrong on probable cause.
      2. Unknown sources can be credible, see Illinois vs. Gates.
      3. McCarthy suggests that people are being evasive for not responding to his points prior to him making them, which is a little nonsensical.

  9. As an initial point, I will point out that a lot of the “Traditional Republican/Libertarian” analysis of the memo that comes out on the side of Kerr does not seem (to me) to understand that it is primarily a political document. That is because of 2 reasons:

    1) Republicans on the House Committee have been been getting very little press coverage as opposed to the leaks of Schiff and from within the Comey and Obama camps, so Nunes felt it necessary to push back on the “official story” in an official capacity, because otherwise CNN, ABC, NBC, etc would not cover what he had to say.

    2) Republicans on the House Committee wanted to get a lot of coverage of their complaints about FBI/DOJ slow-walking the process of their investigation.

    Now, to the extent that it is not a political document, it seems to me there is one thing that is suspect (whether or not McCabe said what Nunes claims), that is after the Intelligence report on Russian interference (January 2017) DNI Clapper said that as of the report the only details the intelligence communities had confirmed was publicly available information. If that was the case, why would the dossier be cited at all instead of the obviously reliable sources?

    1. [i]CLAPPER: That is new to me, I hadn’t heard that when I left a year ago. Our issue with the dossier is we could not, in the time we had, in a month, to do the intelligence assessment that we finished in January, did not have time to verify or validate the second, third order sources that were used to compile the 17 documents in the dossier. That is not to say they weren’t valid. Just that we couldn’t do that. So as a consequence, we did not include the dossier as an organic part of the intelligence community assessment that we rendered about Russian interference in which we had very high confidence. Even then, there were some things in the dosser that were corroborated in our report, notably the intense animus that President Putin has personally for Hillary Clinton, and their determination that they wanted Trump to win the election. [/i]

      http://www.cnn.com/TRANSCRIPTS/1801/02/se.01.html

    2. The political moment of this document depends on the validity of it’s purported legal substance. Kerr’s analysis is thus pretty important.

      I like how you admit this is a stunt, but that’s OK because of liberal media bias. That’s not really an excuse.

      I also can’t help but notice that your talking about slow walking the investigation is the first I’ve seen of that little angle.

      1. Seriously, you hadn’t seen any coverage previously about the FBI stonewalling the committee?

        Byron York: Nunes blows up, threatens contempt after FBI stonewalls House on Russia investigator demoted for anti-Trump bias

        1. Stonewalling != slow walking.

          Also, stonewalling Nunes kinda makes sense, considering how he’s basically working with the administration that’s under investigation.

          1. http://thehill.com/homenews/ad…..nton-email

            Come on, man. If you’re going to defend this mess, at least get up on the facts.

            1. What is your link about the ridiculous reopenning the Butter E-mails investigation have to do with anything?

              1. That’s the slow walking part you asked for.

                Read a book.

              2. That’s the slow walking part you asked for.

                Read a book.

  10. Let’s just try a little thought experiment here, it’s 2020, by then Trump has reshaped the FBI promoting a more conservative slate of FBI deputy directors, and also has some more reliably conservative Assistant Attorney Generals in place, he’s running against John Kerry. Based on some public statements made by Kerry, Trump commissions some opposition research to find out if Kerry has made some back channel promises to Iran and the Palestinian authority promising concessions and more favorable negotiations in return for some unspecified actions or even just laying low during the election so nothing comes up during the campaign.

    The Trump operative asserts that one of Kerry’s campaign staff is the go between and a defacto foreign agent, and feeds his speculative and unsubstantiated dossier to the FBI, which then uses it to get a FISA warrant against the Kerry campaign staffer. This also let’s the FBI get access to all the NSA archive going back the previous year, and unmask all the staffers communications with the campaign.

    We know now this is legal thanks to Orin’s analysis.

    But is it an abuse of the process? Doesn’t raise any red flags? I don’t see why it should, it’s pretty much standard procedure now isn’t it?

    1. Oh yeah, let’s also stipulate that the Trump operative is a former Mossad agent that’s worked with the FBI in the past so he’s got some credibility, it shouldn’t matter that he hates Kerry, and is desperate to keep him out of the White House.

    2. Kaz,
      I’m not super-against the FBI investigating in your hypo. Especially, when Kerry’s staff member has bragged about representing Iran’s interests, and traveled to Tehran, where she made a public speech applauding Iran and criticizing aspects of America. Oh yeah, and when she had been a target of foreign agents, had cooperated with those spies, and and where she escaped prosecution under the theory of, “This woman is such a bloody idiot that we should not presume any intent.”

      [And, I’m resonably sure, 3 or 5 or 16 other suspicious/incriminating things you and I and everyone outside of the intelligence community don’t even yet know about Page’s past contacts and actions.]

      If you’re gonna make a hypo, let’s make it sort of similar to the life history of our redoubtable Carter Page.

      1. “I’m not super-against the FBI investigating in your hypo.” Well, I am. Pardon, but are you nuts? This is how nations die. The threat of someone favorable to Iran/Russia having a place in a new administration pales to nothing, nothing, compared to the threat of the FBI picking sides in a presidential campaign. They need to get the heck out of the way.

        Similarly, I assume you’re aware that the president and others get automatic top-level security clearances. I expect the security people aren’t always happy with that, for a thousand reasons. Too bad. They have their jobs and their place – their important place – and there are things that are a whole lot more important.

        1. You are against the FBI investigating possible foreign agents in the U.S.? Something they’ve been doing since they were first founded?

          I respectfully suggest that “[t]his is how nations die” may be a bit hyperbolic.

          1. Its not illegal to be a “foreign agent”. Its illegal to engage in espionage.

            An American citizen can be “favorable” to a foreign country without being the subject to a secret security investigation.

            If Page got an appointment to the government, it would be legitimate to question his ties and deny him a security clearance.

            If he took Russian money, he might be in violation of the foreign lobbyist registration act.

          2. I am against the FBI taking steps that have made approximately half this country believe that they are partisan spooks working for the DNC, trying to pick presidents. We went through this once with J. Edgar Hoover, and we can’t afford to do it again. You noticed how they tiptoed through the Clinton email investigation? That’s because there was a presidential campaign going, and anyone can understand that that should force them to be incredibly careful. As Comey said (whether he got it right or not; it was a tough dance).
            And their defense now? Leave us alone, we’re the FBI and we’re above suspicion and how dare you question us. With the entire Democrat Party running interference for them, wailing about Top Secret classified information that isn’t there (read the memo) and how the FBI is as holy as the national anthem. No, more. Amazing.
            Bad. Even if it didn’t actually happen and the FBI is completely above-board, it’s bad.

  11. From Orin’s op-ed: “First, the memo mostly punts on the critical question: Was evidence provided by Mr. Steele important to finding probable cause?”

    From the memo: “Furthermore, Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.”

    THAT is “mostly punting”???

    1. Yes, it is. Once again, people read insinuations rather than what was said.

      The memo does not say that no warrant would have been granted without the dossier; it says that no warrant would have been sought. Those are different statements, and very carefully so.

      (Moreover, the memo says that by paraphrasing McCabe rather than quoting him, and Schiff denies that this is an accurate paraphrase.)

      1. “The memo does not say that no warrant would have been granted without the dossier”

        How could it have said that? The Committee did not interview the judge.

        1. It could have said that by looking at what, other than the dossier, was submitted to the FISC judge with the warrant application. If, as alleged by some, the warrant application was essentially nothing more than the dossier, then obviously the warrant wouldn’t have been granted without the dossier.

  12. What’s interesting to me are the claims that the Nunes document is both a big nothingburger that reveals no wrongdoing at all, and at the same time will ruin the reputation of the FBI.

    Seems like someone is having their cake and eating it too.

    1. Wingnut conspiracy theories sometimes provide unlimited cake to residents of the reality-based world.

      Must be a miracle.

      Carry on, clingers.

  13. * Nunes promises more memos to come. The first was merely four pages, a summary necessarily devoid of confirming information. Democrats are free to release whatever.

    * the Inspector General (of the FBI) report due in March will have thousands of pages, Many of these will be whistleblower complaints from ordinary FBI agents who saw what the small partisan cadre at the top of their leadership were doing and complained directly to the I.G.

    * at any time Trump can release more “classified” information. After all, what is so special about the “sources and methods” of the FBI when all that amounts to is taking a fictional press release from the Hillary Rodham Clinton campaign and using it to destroy the privacy of anyone standing in the way of her ambitions.

    * eventually the preponderance of the evidence will smother all political talking points in their cribs.

    * at the moment the only court that matters is the court of public opinion. Democrats hang on strongly in this because the mainstream media couldn’t find their own balls with the help of a crotch-homing service dog.

    * the real cause of this mess is George W. Bush. When Bill Clinton and Obama were in office they vigorously purged all federal bureaucracies of Reagan and Bush appointees or promotions. Hillary acquired the files on 400 such Republicans when she took over State. Bush II thought Dems would love him if he let them be.

    * Rod Rosenstein signed one of the tainted FISA applications

    1. Indeed, this is like complaining that the fuse leading to a ton of explosives can’t blow up anything by itself. The memo is the fuse. Even Orin won’t be able to dismiss the explosion.

    2. the real cause of this mess is George W. Bush. When Bill Clinton and Obama were in office they vigorously purged all federal bureaucracies of Reagan and Bush appointees or promotions

      Starting with the FBI?

      (Arguing with right-wing goobers can be frustrating, but also enjoyable and productive.)

    3. Democrats are free to release whatever.
      That does not seem to be the case.

      the Inspector General (of the FBI) report due in March will have thousands of pages
      So agency independent oversight of itself is OK, but executive oversight of itself is ridiculous and biased?

      what is so special about the “sources and methods” of the FBI when all that amounts to is taking a fictional press release from the Hillary Rodham Clinton campaign and using it to destroy the privacy of anyone standing in the way of her ambitions.
      Even taking all you assumptions about the memo as true, have you considered that there might be a bit more to the FBI investigation than tapping Carter Page?

      eventually the preponderance of the evidence will smother all political talking points in their cribs.
      First, even now you and I disagree at the direction the preponderance of evidence points. Second, even if we were to agree, there is no chance of this while Trump is in office. Look at birthers.

      at the moment the only court that matters is the court of public opinion.
      Blame the media! Which is why all your points above are so substantive.

      the real cause of this mess is George W. Bush
      The morphing of Bush from flight suit badass to goat is one of the more amazing things.

      Rod Rosenstein signed one of the tainted FISA applications
      ‘Tainted,’ except they followed procedure. Just procedure you guys suddenly disagree with.

      1. “The morphing of Bush from flight suit badass to goat is one of the more amazing things.”

        Not half as amazing as the rehabilitation of Bush because we managed to elect an even bigger dullard to the office.

      2. “Democrats are free to release whatever.
        That does not seem to be the case.”

        They are going through the same process the GOP did sarcastro. Try honesty, just once. The committee opened the DNC memo to the whole House, just like the GOP memo was opened to the whole house. Next will be a vote to declassify it in the committee.

        1. Haha, Jesse. The process is being followed, albeit a process seems to involve a lot of party line votes and leadership slow rolling.

          Bottom line, the Dems are not free to release jack in the current Congress, unless they leak it.

          1. But the Republicans are, and have stated that in all likelihood they will release it: After exactly the same delay the Democrats insisted Nunes’ memo be subjected to.

            Bit dodgy here, the Democrats insisting that the Republicans dot every “i” and cross every “t”, and then wanting to bypass the same procedures for their own materials.

            1. We’ll see today.

              This memo is hardly dotted i’s and crossed t’s.

          2. The committee voted unanimously to release the DNC memo to the full House.

            What was blocked was the immediate release to the public, before allowing the house to view it.

            Funny how the press concentrates on not allowing immediate release but misses that it was approved to continue on the same process the first memo took.

            1. Well, I’m gratified that the Republicans released the Democrat’s memo.

              But I would note that under this oft-cited ‘regular process’ they didn’t need to. I’d like to believe it was the transparency they’ve been talking about so much, but I suspect it was political pressure.

              1. Oops, looks like the Dem’s memo has to go through Trump as well.

                Normal Protocol!

                1. You apparently dont know they are following a House rule (regular process) for the public release of classified information. Yes, it goes to Trump who can allow or reject the release. If rejected, it goes to the full House to vote to release over that rejection.

                  So yes, normal protocol, normal process, and official House Rule all mean the same thing.

                  Who knows if Trump will allow or not, but so far you have been completely incorrect. At the start the House GOP said the DNC memo would be approved when it went through the same process their memo did.

              2. Go ahead and make up an excuse.

                The facts are that both memos went through the same process in the same amount of time. Just like they said from the begining.

                1. This is technically true, but remains functionally incoherent until the Dem’s memo is actually released.

                  1. Lol, technically it is true that everthing you wrote was wrong, and if Trump blocks it, it still remains that the House GOP did exactly what they said they would in the timeframe they said they would, exacly like their own memo did.

                    Try reading other sources, the places you get your news from is lacking.

  14. Even assuming the memo’s claims are true ? which we can’t determine from the document itself ? it still does not establish an “abuse” of the foreign intelligence laws.

    But if we assume that the memo’s claims are true, then the following (stated clearly in the memo) are true:

    ? The FBI assessed Steele’s reporting as only minimally corroborated.
    ? No surveillance warrant would have been sought from the FISC without the Steele dossier information.
    ? The FBI ignored or concealed Steele’s anti-Trump financial and ideological motivations.
    ? The Ohrs’ relationship with Steele and Fusion GPS was concealed from the FISC.

    These, if true, would not constitute an “abuse” of FISA?

    1. If we assume the memo’s claims are true, why not assume the dossier is true?

      Also, I continue to be skeptical of but-for causality. Carter Page seems Russia’d up enough that in the counterfactual there are lots of other indicial of suspicion.

      1. If we assume the memo’s claims are true, why not assume the dossier is true?

        I’m just responding to the statement made by Orin Kerr that even if we assume that the memo’s claims are true it still does not establish an “abuse” of FISA. Kerr did not suggest we assume that the dossier is true.

        Also, I continue to be skeptical of but-for causality. Carter Page seems Russia’d up enough that in the counterfactual there are lots of other indicial of suspicion.

        But assuming that the memo’s claims are true, no surveillance warrant would have been sought from the FISC without the Steele dossier information.

      2. Because the FBI gave testimony to their failure to varify any part of the dossier

        1. Unverified is not the same as false.

          The DOJ, FBI, and Democrats have all said the Nunes memo isn’t just unverified but deceptive. I guess they don’t count though.

  15. In any case, smoke inhalation is usually the thing that kills people not the actual fire. If you do see a lot of smoke in your house, don’t wait to see actual fire before you investigate, get the extinguisher, or dial 911.

    1. Unless you also see a smoke machine, surrounded by giggling teenagers. Then you might not call the FD. Or maybe you would! It’s a poor analogy.

  16. This discussion must resemble what one would hear if attending classes at a conservative law school.

    1. How do you think classes at conservative law schools differ from classes at other law schools?

      1. Prayers before classes.
        Law ethics courses are optional.
        All white, male student body.
        Mostly located south of the Mason-Dixon line and west of the Mississippi River.

      2. How do you think classes at conservative law schools differ from classes at other law schools?

        Quality, for starters.

        (Harvard, Penn, Michigan, Berkeley, NYU) vs. Regent, Wyoming, Samford, Mississippi, Ave Maria.

        Or Columbia, Yale, Stanford, USC, Virginia v. Liberty, St. Thomas, Cumberland, BYU, Texas Tech).

        1. Quality, for starters.

          So you think that liberals are better lawyers than conservatives, that they have a better understanding of the judicial system? Is this because liberals, on the whole, have higher IQs than conservatives? Is that what causes a conservative orientation? A lack of intelligence?

          1. I believe that schools that rely on reason, tolerance, free expression, free inquiry, and science are destined to be superior to schools that rely on intolerance, superstition, dogma, and censorship.

            Our stronger colleges and universities are nearly uniformly operated in the liberal-libertarian mainstream. Campuses controlled by conservatives populate the third and fourth tiers of legitimate rankings, or are unranked, and struggle to maintain accreditation many of them never deserved.

            Conservative campuses tend to be shackled by strenuous censorship; suppression of academic freedom; the teaching of nonsense; the rejection of science and history to flatter superstition and dogma; old-timey conduct codes; collection of loyalty oaths; vigorous discrimination (hiring, admissions, academics); and other signature elements of a conservative-controlled school.

            And it isn’t just law schools. Also illustrative are Princeton, Carnegie Mellon, Williams, Michigan State, Pittsburgh, and Wellesley (and scores of others) against Franciscan, Hillsdale, Wheaton, Biola, Bob Jones, Grove City, and Ouachita Baptist (and scores of others).

            I hope someone advances an argument for the proposition that conservative control of a college or university does not cause (or is not associated with) academic weakness, or an argument that our strongest schools are not liberal-libertarian institutions that reject conservative control and methods. I would welcome an opportunity to consider such an argument.

            1. According to FIRE, Williams has a speech code rating of “Red.” Williams College’s Office of Institutional Diversity and Equity advises students to report signs “color-coded pink for girls and blue for boys” as “bias incidents,” claiming such signage is “abhorrent and intolerable.” Is this what you mean by tolerance, free expression and free inquiry? Many of the other top schools fare no better.

              Also according to FIRE:

              Many secular, private schools appear as committed to their anti-religious orthodoxy as Bob Jones University is to its fundamentalist Christianity and anti-secularism.

              Freed from Constitutional restraint, some of America’s best private, secular, and liberal arts colleges and universities are becoming centers of censorship and repression on behalf of campus orthodoxies.

              Where is the evidence that liberal colleges are more tolerant of diversity of opinion than conservative ones?

              1. FIRE is a bought-and-paid-for apologist for right-wing schools and partisan critic of non-right-wing schools. It tailors its fire to flatter wingnut donors and to advance conservative ankle-biting motivated by right-wing envy of strong schools such as Williams.

                FIRE is very popular, however, among white nationalists, Trump supporters, and other dopes.

                1. Every word of what Kirkland wrote is a lie, including “and” and “the.”

                  1. Are you referring to my criticism of FIRE, or to my observations about differences between strong (liberal-libertarian) and conservative (weak) schools?

                    Thank you.

                    1. Yes.

          2. So you think that liberals are better lawyers than conservatives, that they have a better understanding of the judicial system? Is this because liberals, on the whole, have higher IQs than conservatives? Is that what causes a conservative orientation? A lack of intelligence?

            I think typical law schools train people to use the law to the best answers to questions. Essentially the same as other disciplines at normal schools.

            I think conservative law schools train people to try to justify the “conservative” answer to a question, whether that’s the best answer is treated as secondary.

            It’s interesting that you were so quick to label any non-conservative law school as “liberal”. I’d be tempted to label Harvard, Penn, Michigan, Berkeley, NYU, etc as simply being law schools.

            That’s quite a compliment you’re handing to liberalism. What would you consider the most prestigious conservative law school? Just how many faculty at that school would turn down a position at Harvard, Penn, Columbia, Yale, Stanford, etc…

            1. BYU and Mississippi are good guesses for “best of the worst.” If another conservative school or two has managed to cling to a mediocre ranking despite its right-wing nature, I hope someone will provide the name(s).

              Many conservatives consider Berkeley to be the nation’s leading example of a liberal law school. You’re tempted to label it non-liberal?

              This point stands: Strong schools are liberal-libertarian mainstream schools. Conservative-controlled campuses are censorship-shackled, third-rate goober factories. The market has spoken. Vividly.

  17. Casting call for the sequel from Hollywood: MINORITY REPORT II — THE WRATH OF THE TDS ZOMBIES

    starring:

    Adam Schiff as himself, the courageous defender of 25,000 FBI agents and four gal Russian bedwetters

    Peewee Herman as that sinister villain, Devin Nunez

    Charles Barkly as James Comey, although Comey is actually 4″ taller than the former NBA star fprward

    Wolf Blitzer as Carter Page, who early on was suspiciously friendly to Russians, an obvious crime

    Chelsea Manning as Lisa Page, no relation to Carter

    Nicolas Cage as Peter Strzok, Nick needs the work desperately and has no objection to the kissing scenes with Chelsea

    Stormy Daniels as Loretta Lynch, who will portray what really happened with Bill C. at the end of the tarmac

    Michael Moore as Andrew McCabe, another heroic defender of American liberty.

    Hillary Clinton as herself, as she is breaking into TV and film as a performer

    Robert Redford as Bill C, because the studio type casts this character as old and frail, but noble

    Jabba the Hut animatron, as President Donald Trump, enemy of all things good and true

  18. After reading Kerr’s enlightening analysis and exposition of the law, I now find it more likely than I did before that there were real FISA abuses. Yes, it’s not proved yet and we need a better, bigger picture. But according to Kerr, they had a duty to disclose facts that would undercut their case, and violate the law if they intentionally or recklessly omit such facts? At this point it looks extremely likely that this is what happened.

    1. And to be clear, this is a separate issue from the broader “Russia investigation”, Trump, collusion, etc. But there is some relation between these things.

    2. But according to Kerr, they had a duty to disclose facts that would undercut their case, and violate the law if they intentionally or recklessly omit such facts? At this point it looks extremely likely that this is what happened.

      Even if they only carelessly omitted such facts it would be a scandal in that the party in power should not be able to wiretap the other party in a presidential election and escape repercussion by pleading that they were just careless. If necessary the FISA law should be changed so that this can’t happen again.

    3. These facts do not undercut their case. A partisan source is not a false one. Or else we’d better ignore this memo too, eh?

      Plus, it looks like they said a political campaign was funding this source.

  19. However measured and accurate Kerr’s commentary may be as a matter of law, it won’t help much with regard to politics and the memo?when Republican right wingers start citing it to each other as justification for politically weaponizing the FBI, the IRS, and the foreign intelligence services on behalf of plutocracy. And, incidentally, against the Ds.

    The Rs have done that right along?single out some normal occurrence in government or society that disadvantages them or conveniences Ds. They call that illegitimate attack. Then they redouble the complained-of-stuff themselves, while claiming turnabout, or tit-for-tat, or “they did it first.”

    In this case, it was critical for Rs to find something Democratic-Party-connected to throw into the mix. So they did it. They scream “Hillary, HILLARY!, HILLARY!!!,” and that way hope to get past the imposing fact that it’s the very-not-Hillary FBI which now troubles them.

    With demographics against Republicans, no self-constraint seems tolerable. While so precariously perched, every political hiccup threatens existential crisis. Every response is justified, because every occurrence is an emergency. Scorched earth defense, all the way. It’s a dangerous time in American politics.

    1. The Rs have done that right along?single out some normal occurrence in government or society that disadvantages them or conveniences Ds. ?While so precariously perched, every political hiccup threatens existential crisis.

      Are you suggesting that if the party in control of the Executive branch uses the power of the federal government to wiretap the other party during a presidential election, this is really just a normal occurrence in government, or a standard political hiccup, and the aggrieved party is being excessive if it declares that without a demonstration of absolute necessity there has been a serious offense?

      1. Are you suggesting that if the party in control of the Executive branch uses the power of the federal government to wiretap the other party during a presidential election

        Once more: Carter Page. Not “the other party.” Not Trump. Not the Trump campaign.

        1. “Carter Page. Not “the other party.” Not Trump. Not the Trump campaign.”

          In what rational world does the FBI waste time on Carter Page in a counterintelligence investigation?

          Not in the military. Not in the CIA or other intelligence agency. Not in the government at all. Holds no security clearance.

          What threat to US security is Carter Page?

          1. In what rational world does the FBI waste time on Carter Page in a counterintelligence investigation?

            In the rational world in which we don’t like Russian espionage activities in the U.S.

            There was already one counterintelligence investigation involving Page in 2013-2014, long before he had any association with Trump (and, of course, long before Trump was running for president.) That doesn’t prove that the 2016 investigation was justified, but it does demonstrate that Carter Page is someone who’d be of interest to the FBI even without any Trump connections.

            1. Actually, didn’t that investigation involve Page helping the FBI nab the spy who was trying to turn him? Yeah, that really made Page look suspicious.

            2. “we don’t like Russian espionage activities”

              What “espionage”? He had zero access to US secrets.

              Page openly went to Moscow for a conference. He bragged about his Kremlin contacts.

              Real covert.

              At worst he was an unregistered lobbyist. That can be a criminal violation.

              1. You can be a foreign asset without being covert, Bob.

        2. Once more: Carter Page. Not “the other party.” Not Trump. Not the Trump campaign.

          Well, Nunes, who has a better handle on what will be coming out, characterizes this as a counter-intelligence investigation into the Trump campaign in the summer of 2016. That’s his charge and he intends to prove it. Your position seems to be that this warrant did not extend into the Trump campaign and that Nunes turned it into a national crisis knowing that no evidence could be produced that it extended beyond Carter Page. Is that what you think? What was Nunes’s motivation?

          NUNES: Yes, they wouldn’t have received a warrant without the dossier. The dossier was presented to the court as it was — as if it was true. The court was not told that the Democrats have actually paid for this.

          And just step back for a moment. This is not trying to go after some terrorist. This is about — they opened, the FBI opened a counter-intelligence investigation into the Trump campaign in the summer of 2016. That’s what happened.

          And then they got a warrant on someone in the Trump campaign using opposition research paid for by the Democratic Party and the Hillary Clinton campaign. That’s what this is about. And it’s wrong and it should never be done.

          1. Nunes’ motive is exactly the same as yours.

            Tarnish the investigation as much as possible, knowing that the more you discredit the investigation the more you blunt the consequences for Trump and the GOP.

  20. Republicans renewed the FISA court irrespective of the heinous way this secret court was used for a direct assault on the privacy of anyone opposed to the ambitions of Hillary Clinton.

    Is no Democrat suspicious that their political weapon of convenience may not, even at this moment, be unmasking them? Might not all their electronic communications be under review by hostile parties in some obscure government office?

    1. Democrats assume, with some basis, that they control the “deep state” whether or not they’re nominally in control of the government. Recall, for example, that when Nixon ordered the IRS to audit his enemies, they refused, and he got audited instead. If only they’d been as stubbornly independent during the Democratic administrations that followed!

      There’s time enough for them to be concerned about it’s civil liberties implications if they find it’s starting to slip through their grasp.

      1. It’s telling how easily you jump to bad faith. Makes me wonder a bit about what you would do with any power.

        Maybe Democrats don’t buy your story about the FBI having it in for Trump.

        That means they’re not secretly plotting to use their Deep State control to keep their persecution one-sided, because the only side that loves to talk about all the traitors in the opposition ain’t the Dems.

      2. ‘Democrats assume, with some basis, that they control the “deep state” whether or not they’re nominally in control of the government.’

        This, of course, is smoke, repeated as fact.

  21. So is there now an ideological classification called “conditional textualism”?

  22. If Trump is innocent, why is he acting so guilty? Any criminal defense attorney knows that when a client starts claiming that the police are biased, the police are out to get me, the police are corrupt, the police have a vendetta, you can bet the rent that you have a guilty client.

    1. Public Corruption is the FBI’s top criminal investigative priority. So they clearly aren’t ready to bet the rent that such charges are baseless. Why would FBI agents be immune to corruption, and why was this not applicable to Robert Hanssen?

      1. This isn’t agents. It’s Trump’s own political appointees.

  23. Yes, but it’s very thick, dense, noxious smoke.

    Perhaps there will be detailed and sworn supporting affidavits from five FBI agents, each alleging that 10 independent and previously absolutely unconflicted and disinterested and reliable confidential informants, based on first-hand knowledge, provided independent probable cause unrelated to anything in the Steele dossier.

    Are you a betting man, Prof. Kerr?

    1. But is it enough smoke to conceal the giant middle you’ve excluded?

  24. This is a war in the court of public opinion. It is only the first battle. Smoke is a desirable tactic to employ. So will be noisy cannon salvos. Parsing legal hairs will matter not a whit.

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