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The Dubious Legal Claim Behind #ReleaseTheMemo

Did DOJ actually need to disclose who funded the Steele dossier? Very likely not.

(Cross-posted from Lawfare)

It seems likely that the House Intelligence Committee will soon #ReleaseTheMemo. According to press reports, the memo claims that the FISA application to monitor Trump campaign advisor Carter Page included information sourced from former British intelligence officer Christopher Steele "without adequately explaining to the judge that Democrats financed Mr. Steele's research."

This is a scandal, the argument runs, because it means the application was fraudulent. Because Steele was funded by Democrats, his reports were just unreliable opposition research designed to make Trump and his associates look bad. And if the FISA application was based on Steele's unreliable research, and DOJ never told that to the FISA Court, then DOJ misled the court and the court should not have issued the warrant.

As a Fourth Amendment nerd, it seems to me that the premise of #ReleaseTheMemo is pretty dubious. The apparent idea is that the failure to adequately document the funding behind Steele's work is a huge deal and a fraud on the court. But as a matter of law, that seems pretty unlikely to me. When federal judges have faced similar claims in litigation, they have mostly rejected them out of hand. And when courts have been receptive to such claims, it has been because of specific facts that are likely outside the scope of the memo that will be released.

Here's the context. It turns out that there is lots of litigation on whether warrant applications need to discuss the bias of informants. Franks v. Delaware allows a criminal defendant to challenge a search warrant by arguing that the statement of probable cause that supported the warrants was fatally flawed. Maybe the officer who swore out the affidavit was lying about the basis for probable cause. Or maybe he recklessly included facts that he should have known were false. Or maybe–as is particularly relevant here–he intentionally or recklessly failed to include facts that the judge needed to know in order to pass on whether there was probable cause. Under Franks, a court will void a search warrant if the defendant can establish that the officer who swore out the warrant "knowingly and intentionally, or with reckless disregard for the truth" either included information that was false or excluded information that was true when that information was critical to the probable cause determination.

Franks generates a lot of cases on informant bias. They typically run something like this. The government will get a warrant based in part on the statements or claims of an informant. The affidavit won't give specific reasons to doubt that the informant is credible. Down the road, the warrant will be challenged on the ground that the affidavit failed to tell the judge of good reasons to think the informant was biased and unreliable. Maybe the informant was facing criminal charges and had every incentive to manufacture evidence that others were involved in crimes to strike a better deal for himself. Maybe the informant was the suspect's estranged spouse in the middle of a bitter divorce battle, and she was trying to get him arrested to help get custody of the kids. In each of the cases, the defendant claims that the warrant should be voided because the government failed to disclose the informant's bias. If the government hadn't misled the court, the argument runs, no warrant would have issued because the judge would have seen that the informant could not be trusted.

How has this argument fared? It depends on the case. Most of the time, though, it hasn't fared very well.

Part of the problem is that judges figure that of course informants are often biased. Informants usually have ulterior motives, and judges don't need to be told that. A helpful case is United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988), in which the government obtained a warrant to search a house for a meth lab inside. Probable cause was based largely on a confidential informant who told the police that he had not only seen a meth lab in the house but had even helped others to try to manufacture meth there. The magistrate judge issued the warrant based on the informant's detailed tip. The search was successful and charges followed.

The defendants challenged the warrant on the ground that the affidavit had failed to mention the remarkable ulterior motives of the informant. The affidavit didn't mention that the "informant" was actually a married couple that had been in a quarrel with the defendants; that the couple was facing criminal charges themselves and had been "guaranteed by the prosecutor that they would not be prosecuted if they provided information"; and that they had been paid by the government for giving the information. The affidavit didn't mention any of that. A big deal, right?

According to the court, no. "It would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive," Judge Noonan wrote. "The magistrate would naturally have assumed that the informant was not a disinterested citizen." The fact that the magistrate wasn't told that the "informant" was guaranteed to go free and paid for the information didn't matter, as "the magistrate was given reason to think the informant knew a good deal about what was going on" inside the house.

In some cases, omitted information about a witnesses's bias is irrelevant because there is enough evidence of the crime so that probable cause was not really in question. Consider Smith v. Edwards, 175 F.3d 99 (2d Cir. 1999) (Sotomayor. J.), a horrible case involving alleged abuse of a child. A mother reported that her husband had sexually abused their daughter, and the judge issued the warrant for the husband's arrest. The husband was arrested but the charges were later dropped. The husband then sued the officer who obtained the warrant, claiming that the officer had obtained the warrant only because he had left out critical information in the affidavit. In particular, the affidavit did not inform the magistrate that the mother had instituted divorce proceedings against her husband, and it did not state that she had come to the police only after having tried unsuccessfully to obtain a restraining order to bar him from contacting her or her daughter. In the husband's telling, you needed to understand the wife's bias to know that she had made up the claims about him to get custody of their daughter.

The court held that the failure to disclose this information was irrelevant. The undisclosed information "was not material because there would have been probable cause to arrest" the husband even if the officer had included the omitted information. Even if the affidavit been "corrected" by including the omitted information, "nothing in the outcome of the Superior Court proceedings that would have negated probable cause."

Importantly, that doesn't mean that an informant's bias never needs to be disclosed. It just depends on facts of the case. It depends on how important the informant's information was to establish probable cause, and it depends on how much the alleged bias makes the information unreliable in context. If there are reasons to credit the informant despite the bias, based on the detail of the tip, the informant's history of providing reliable tips, or other information, then the background informantion about bias isn't particularly relevant. But if an affidavit hinged on an informant's claim and bias would have fatally undercut probable cause, then it has to be included in the affidavit.

United States v. Glover, 755 F.3d 811 (7th Cir. 2014), is an example of when an informant's bias has to be disclosed. In Glover, the basis for a warrant to search the defendant's home for drugs was a confidential informant who told the police that the defendant was a gang member and drug dealer who had a lot of guns in his house. The police verified that the defendant had past convictions and lived in the house, but otherwise the case for the warrant was based almost exclusively on the uncorroborated claims of the informant. In particular, the affidavit failed to say that the informant was himself a gang member with fourteen convictions who had lied to the police about his identity and been paid in the past for being an informant.

The Seventh Circuit tossed out the warrant because the affidavit didn't give sufficient reason to think the informant was reliable. The informant's tip was bare-bones and generic. It lacked the detail of someone who had special knowledge. The police hadn't corroborated the claims sufficiently. And the failure to say that the informant was a gang member was part of that, too, as knowing that fact could undercut probable cause.

In particular, the fact that the informant in Glover was himself a gang member raised the concern that the informant had simply made up claims about the defendant's drugs and guns because of gang rivalries. If the police had corroborated the tip or the informant had been reliable in the past, that could assuage concerns that the informant had just manufactured the probable cause from whole cloth. In such a case, "omission of an informant's criminal background and financial motive is not necessarily essential to the probable cause determination." But the absence of that corroboration or reason to trust the informant, and the fact that the informant's credibility was key to the case, made disclosing that informantion essential.

What do we make of these cases in the context of #ReleaseTheMemo? I think a few lessons emerge, at least assuming that the FISC judges approach omissions in affidavits in the same way judges ordinarily do in criminal cases (which seems a fair assumption to me, although I'm open to correction on that).

First, you need to know all of the facts claimed in the Carter Page FISA affidavit to know if disclosing the funding source of the Steele's research was even remotely relevant. My understanding is that FISA applications like this are rarely close calls. DOJ usually gives the FISC way more than probable cause. (At least that's my understanding: I was at DOJ and applied for warrants and a Title III order way back when, but I haven't done any FISC work.) If that's right, it means that Steele's research may have been included in the affidavit amidst a ton of other evidence. And if so, the Steele research itself may have been wholly irrelevant to the application. It's hard to see any significance to whether the funding source of irrelevant research was included. If that's right, the omission was not material, in the language of Smith v. Edwards; including it would not have negated probable cause. And you would need to assess that based on reading the entire affidavit, not just whatever is alleged in the four-page Nunes memo.

Second, even if the Steele research was a major part of the affidavit, whether the funding source would need to be disclosed depends on whether it critically altered the case for probable cause. Some of that would depend on whether the Steele research was corroborated. If the government looked into the Steele memorandum and corroborated some of its claims, it undercuts the need to disclose the funding source.

And some of that depends on identifying just what the narrative is for why the funding source was critical to establishing probable cause. I think that point is really important and too easily ignored. In #ReleaseTheMemo circles, any possible link between the Steele dossier and the Clinton campaign is like an atomic bomb. It completely annihilates any possible credibility the Steele dossier may have, leaving the exposed words of the dossier behind like the haunting shadows of the Hiroshima blast.

But that's not how actual law works. In the world of actual law, there needs to be a good reason for the judge to think, once informed of the claim of bias, that the informant was just totally making it up. As United States v. Strifler shows, that isn't necessarily the case even if the government paid the informant to talk and guaranteed that they would get out of jail if they did. Nor is it necessarily the case just because the informant is in personal feud with the suspect. What matters is whether, based on the totality of the circumstances, the information came from a credible source.

That's a problem for #ReleaseTheMemo, I think. To my knowledge, Steele was not some random person motivated by an ongoing personal feud against Trump or Carter Page. To my knowledge, he was not a drug dealer facing criminal charges who was promised freedom if he could come up with something for the government's FISA application. Instead, Steele was a former MI6 intelligence officer and Russia expert. He was hired to do opposition research because of his professional reputation, expertise and contacts. And his work was apparently taken pretty seriously by United States intelligence agencies. Of course, that doesn't mean that what's in the dossier is true. Maybe the key allegations are totally wrong. But if you're trying to argue that Steele's funding sources ruin the credibility of his research, his professional training and background make that an uphill battle.

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  • CrispyBacon||

    The impetus for the release is more about the public debate than the vagaries of 4th Amendment law. Who knows whether the memo goes toward revealing a bigger scandal. I appreciate the analysis on the 4th Amendment, but it misses the true purpose and import of the memo.

  • Bob from Ohio||

    Correct, the "Memo" is a political document, not a legal brief.

  • Sarcastr0||

    It's OK if it's deceitful so long as it's only for partisan ends!

  • Owen Taylor||

    Your username is duly noted, but I think the point is there's a real-world calculus being buried under the 4A legal analysis: the FBI using oppo-research to spy on an American citizen to any significant degree -- and I think it's fair to say it was significant, since it was likely included in the FISA warrant -- makes the premiere law enforcement agency look bad. It makes them look, at best, incompetent; at worst, corrupt. Politically speaking, it's going to be difficult to trust the outcome of an investigation if we don't trust its origins and the organization that started it.

  • aluchko||

    The primary piece of evidence was an eye witness testifying that Carter Page knew the Russians had the emails before they were released to the public. That's a direct link between the Trump campaign and Russian intelligence and that alone was more than enough for the warrant.

    As for secondary information being included, who cares? If you can add more circumstantial evidence (particularly if some of it turned out to be valid) then go for it. It's a warrant, the point isn't to convict someone, it's to prove you have a valid cause to keep investigating.

    As Orin Kerr points out warrants are often granted on far flimsier grounds.

  • JseeC||

    I think you're confusing Carter Page with George Papadopoulos. Papdopoulos is the one who was told that Russia had damaging hacked emails on Hillary in April, 2016. At the time, and not undisputed now, is that the 'hacked emails' were thought to be emails captured from Clinton's home email system, perhaps from her blackberry or ipad while she was in Russia or other nations friendly to Russia. There was never a suggestion at any time that the emails offered by Russia (second hand), or more accurately, the information from those emails, was the DNC/Podesta emails. Those DNC hacks were still in progress when Papadopoulos was told the Russians had damaging information on Clinton, from electronic hacking.
    Carter Page's sole role seems to be that he met with people claiming to be unofficial representatives of the Russian government, while he was in Moscow giving a speech, and then lying about those meeting(s) when he was interviewed by the FBI.

  • GeoffB1972||

    There's no question warrants are often granted on flimsier grounds. The FBI and law enforcement in general would rather not have the public think about this. What the memo reveals is that no different than the wrong house no-knock warrants, the FBI was perfectly happy to use questionable information from a shady informant once it decided it wanted a warrant on someone. They always talk about the real crime being what's legal. And here we have a Fourth Amendment expert taking for granted that law enforcement is regularly given extra surveillance powers without too much thought as to the protection of the rights of the surveilled. It looks bad and it reminds us that the FBI of today is not a noble bunch of servants of truth and justice, it is a direct descendant of the FBI that tried to convince Martin Luther King to kill himself because it would solve a few problems for them.

  • NToJ||

    "...the FBI using oppo-research to spy on an American citizen to any significant degree..."

    If by "spy" you mean conduct an investigation with a warrant, what's the problem? As is apparent from the OP, law enforcement frequently relies on opposition research (including confidential informants) to secure warrants. Why is that a problem for you? Why would that make the FBI look bad, incompetent, or corrupt? Are you sure that the reason "it's going to be difficult" for you "to trust" the outcome is because a warrant was based on opposition research? Because it looks like confirmation bias to me.

  • TwelveInchPianist||

    "If by "spy" you mean conduct an investigation with a warrant, what's the problem?"

    The problem is that it's fairly easy to abuse such an investigation for political purposes. We should be extremely skeptical when the government is using secret warrants to spy on the political opposition. This should go without saying.

  • NToJ||

    Yes yes, we're all "extremely skeptical" just like you. Where do you think that should lead us, though? I think it's unlikely that the FBI is simply performing political spying, or that a John Roberts appointed FISC judge just rolled over to let them. Surely the FISC judge who issued the original warrant now knows at least as much information as you do.

    Do you want more FISC oversight? What is it you're proposing, specifically?

  • Bob from Ohio||

    If we took deceit out of politics we would have no politics but the fact that a court would not pay attention to the source of the dossier [OK's point, right?] has little to do with it.

    The dossier simultaneously 1. forming a legal basis for a warrant and 2. being a a dirty political trick are not mutually exclusive.

  • Sarcastr0||

    Agreed, Bob. But the existence of a political aspect does nothing to change the calculus of it's validity.

  • CrispyBacon||

    "...existence of a political aspect does nothing to change the calculus of it's validity."

    Which is why the memo may validly reveal malfeasance notwithstanding the political aspect.

    If the memo presents valid information heretofore hinted at, no wonder partisans on the other would object. If the memo is accurate, the Democrats/FBI are by definition partisans on this topic. It's awfully funny to treat those objections as presumptively non-partisan. It's basic damage control to try to "contextualize" or get ahead of bad information.

    That Republicans are unwilling to allow such spin is understandable. I bet the information in the memo is essentially true. We have yet to know its significance. The mere specter of doubt should not blind people to information.

  • Sarcastr0||

    Sure, but Prof. Kerr doesn't agree that the analysis makes sense on that level.

    The memo is being used to argue the FBI are all partisans, which is ridiculous on it's face, and dangerous, may not be what the memo says, and looks thusfar like it'll be something the memo has a hard time proving.
    ===================
    Are you arguing the memo may have something useful to say, but the minority report cannot, because it will be partisan?

  • Sarcastr0||

    Sure, but Prof. Kerr doesn't agree that the analysis makes sense on that level.

    The memo is being used to argue the FBI are all partisans, which is ridiculous on it's face, and dangerous, may not be what the memo says, and looks thusfar like it'll be something the memo has a hard time proving.
    ===================
    Are you arguing the memo may have something useful to say, but the minority report cannot, because it will be partisan?

  • CrispyBacon||

    (1) Does he? Prof Kerr's analysis (here) is that there probably isn't a valid objection to issuance of the warrant. I'm talking about the possibility of something much bigger and for which the validity of the warrant is not important.

    (2) I don't think the memo is being used to argue that everyone at the FBI is a partisan, but rather certain individuals, at the top, acted in a partisan fashion. We already have evidence of that in the texts.

    (3)(a) I'm arguing that the Memo may contain valid information that can be judged on its own merits. And if the Memo is damaging, it doesn't make sense to have those who would be most damaged by it (Democrats in a political sense, FBI in an institutional sense) try to water it down. The FBI typically doesn't allow those implicated in its investigations (as suspects or witnesses) to craft its memoranda. That doesn't mean those people don't have something useful to say. Which brings us to: (b) the FBI/Democrats will have the opportunity to respond, notwithstanding the complaints about classified information.

  • Sarcastr0||

    We don't know the thesis of the memo, but if the best it can offer to prove partisanship by FBI leadership is some bipartisanly anti-politician texts by fired people and some dubious legal analysis, you should be more skeptical than you are.

    A minority report is just watering down?! Wow, Crispy, that's kind of shockingly wrong. Facts can be shaded and robbed of context. You don't just let the prosecution speak in a criminal case. For the same reason, ignoring the other side when releasing partisan materials is a recipe for misleading the public.

  • CrispyBacon||

    Sarcastr0, imagine that the Memo is essentially correct and reveals partisan corruption at the FBI. I bet you all the donuts that *no matter what* the Memo says, people on your side are going to dismiss it. I also bet you all the donuts, that people on my side will treat every comma as a criminal indictment. Let's see what it says. Then you don't just have to hang on every word wafting from Schiff's mouth (or from the FBI) to accept (without seeing anything) a certain narrative.

    A minority report can try to obfuscate the truth. You were trained in the law, you've read enough arguments/opinions, and you've witnessed how the public digests complex information to know how this goes. A lot of the work is done by the narrative. Instead of having a Memo from the Intelligence Committee (whatever partisans want to say about it), you would rather have dueling partisan reports, one at least implicitly endorsed by the FBI.

    As I said, there will be plenty of chance to respond to the content of the Memo. The over-the-top outrage coming from your side is what makes me think there is great truth to the memorandum. The way Democrats are behaving does not accord with the acts of a grown-up responsible party striving ever-so-hard for non-partisan ideals.

  • JseeC||

    Part 1
    In each of the cases cited in the article, a (search) warrant which was possibly obtained via a partial or biased source led to the discovery of real evidence of a crime, so even if there was bias, the source was proven correct. All of the cases involve appeals from convictions or denial of trial motions to suppress.
    Compare that to a FISA electronic surveillance which seeks no evidence for a criminal prosecution. It is purely intelligence gathering. (If you're not sure about this point, try to define a crime that falls under 'colluding with Russia'. There isn't one. Hard to claim this was a criminal investigation when no crime is described)
    So there will never be (or very rarely anyway) a judgment by an impartial judiciary whether the application for warrant was proper or whether it produced verifiable results. There is no ultimate adversarial contest on the results, as happens in criminal trials. The subject doesn't get to cross examine the investigators or warrant affiants.

  • JseeC||

    Part 2
    Then the supposedly secret warrants and/or possible results are leaked to the media. In that instance, this appears, when taken in toto, to be a deliberate attempt to smear a candidate for president by the opposing party. And the issue really isn't whether the FBI told the judge that the data supporting their warrant application was paid Democrat election research, but better, the issue should have been whether the FBI actually bought that load of bull that was the Steel dossier. The FBI, in something called the "Woods procedure", has to verify every allegation in the FISA supporting affidavit, before submitting it to the court.
    The Steele "dossier" was laughable on its face, and I'm speaking from some experience in evaluating electronic surveillance warrants. Real intelligence doesn't read "A close associate said he heard from a friend high in government that Putin was overheard saying..." That's a third hand report of completely non-verifiable information. Nowhere is there anything on the prior reliability of any source, or on the actual placement of any source to have actually heard some purported conversation. Prior reliability and placement to actually have first hand knowledge are the gold standard for evaluating intel.
    And, tending to confirm this, we know learn that a UK public relations guy, who was simultaneously working for both Steele and Fusion was the primary source of all of those Steele claims.

  • JesseAz||

    Since you have access to the memo, can you tell us what deceit is in the memo? One could argue that using partisan oppo research to instantiate an investigation into an opponent is deceitful... do you disagree?

  • Sarcastr0||

    ...isn't that what the OP is about?

    And oppo research informin an institutional investigation is not deceitful at all, unless you think all oppo research is by definition lies.

    And the memo didn't instantiate the investigation. Look it up. I take your language in good faith though - I may take issue with your conclusions and interpretations, but you're usually careful with facts.

  • Orin Kerr||

    Wait, there are politics here? NOW you tell me.

  • MatthewSlyfield||

    There are politics everywhere. It's impossible to escape from it.

  • MatthewSlyfield||

    There are politics everywhere. It's impossible to escape from it.

  • CrispyBacon||

    Anytime, professor ;)

  • BillyG||

    I look at the source of funding as probable bias in the information provided. Steele was being paid for opposition research. Paid to find potentially damaging information. He was NOT paid for the truth, he WAS paid to dig up potential dirt. The whole dossier was therefore created with the intent of providing information to pain Trump in a bad light, not credible or balanced information. It's no different than the gang example above, just substitute rival politician for rival gang.

  • David Nieporent||

    He was NOT paid for the truth, he WAS paid to dig up potential dirt.

    That doesn't make sense. If it's not true, it's not dirt. If he was paid to make stuff up, then why pay him at all? They could have had an intern make stuff up for free.

  • TwelveInchPianist||

    So there is a pee-pee tape?

  • OtisAH||

    Using only what we know of Trump from his words and celebrity of the last 30 years, it's more likely than not that there is. And before you can form the "g" in "germaphobe"...

    "I'm automatically attracted to beautiful women — I just start kissing them, it's like a magnet. Just kiss. I don't even wait."

    - Donald J. Trump, President of the United States of America

  • Brett Bellmore||

    I realize this is highly technical, but there's a significant difference between kissing beautiful women, and paying some prostitutes to pee on a bed because you heard rumors Obama once slept on it.

  • OtisAH||

    The kissing bit was solely to stave off any germaphobe b.s.. Germaphobes don't kiss strangers. Because of germs.

    And again, based solely on the entire 30+ year public record on Donald Trump, including his ego, personality, words, and deeds (not much to go on, I know), it's more likely than not that the tape exists.

  • Bob from Ohio||

    "They could have had an intern make stuff up for free."

    They needed a source that the FBI would trust, correct?

    That is OK's point:

    "He was hired to do opposition research because of his professional reputation, expertise and contacts. And his work was apparently taken pretty seriously by United States intelligence agencies."

    An intern would not have been "taken pretty seriously".

  • Sarcastr0||

    When you hire people based on reputation they will do a good job, that usually means you want them to do a good job.

  • Orin Kerr||

    Or at least you assume the risk they will do a good job.

  • Bob from Ohio||

    Why do advertisers hire celebs? They want to take advantage of the reputation to sell the product.

    The DNC hired someone reputable so they could use his results. Hiring an intern would have made the dossier useless.

  • Sarcastr0||

    This was not a sponsorship deal of a dude good at a sport endorsing a shoe - Steele is good at making exactly this sort of product.

    I think it's a big assumption to decide he was hired by the RNC, then the DNC, then the FBI just for his brand.

  • JesseAz||

    If Steele is so good at making this research knowledgeable and factual, why did he tell British courts that he didn't stand behind the veracity of his memo? (Recent defamation suit he is a part of)

  • Sarcastr0||

    Because that's a legal strategy, not a factual assertion.

  • JesseAz||

    I've seen you cop out of questions before, but this is just silly.

    If it is not based on enough facts to state he truly believed it in a defense against slander, why would we take it as based on enough facts to institute a criminal investigation? General rules on slander are less exacting than rules required for criminal prosecution.

  • Sarcastr0||

    I don't take legal pleadings as proof of the matter they assert. That's lawyering 101.

    And even if I did, looks like NToJ, being less lazy than me, kinda blew even your narrative out of the water.

  • NToJ||

    What does "stand behind" mean? Here's what he said:

    "The briefings involved the disclosure of limited intelligence regarding indications of Russian interference in the U.S. election process and the possible coordination of members of the Trump's campaign team and Russian government officials."

    "The contents of the December memorandum did not represent (and did not purport to represent) verified facts, but were raw intelligence which had identified a range of allegations that warranted investigation given their potential national security implications..."

  • Owen Taylor||

    He was paid millions by the DNC for oppo-research; somehow I doubt he was going to come up empty-handed. He might not have sat down and made things up wholesale, but "dirt" doesn't have to be verifiably true for it to be effective.

  • shawn_dude||

    Opposition research is only worth the money if the results have enough truth in them to stick. (I know...we're in a "post-truth" world these days.)

    Do you think Steele would ruin his reputation and future income potential by just making stuff up?

  • Brett Bellmore||

    That's why the salacious lies get mixed with innocent truths, so that the "truthiness" of the innocent parts will rub off on the lies.

    Think of including easily proven but innocent truths as a coat of primer for the lies that can't be proven to "stick".

  • KevinP||

    Dirt can be true and yet completely one-sided.

    I bet that I can take ANY person on the street, dig into their background and make them look like demons by presenting true facts about them but leaving out context and mitigating facts.

  • FatDrunkAndStupid||

    An intern wouldn't have been a viable conduit to a FISA warrant and FBI Investigation. The DNC hired a law firm to pay Steele because it provided a degree of separation and privilege. The law firm hired Steele to pay a PR flack in Russia for a report because Steele's name lent the report credibility.

    Steele never went to Russia. He outsourced his work to a local Russian PR guy who just pocketed a check and then had a lot of fun inventing a hilariously over the top story. The DNC easily could have done this themselves, but that would have looked "bad". The middlemen (Lawfirm and Steele) who did absolutely nothing from a practical standpoint were the keys to the entire charade.

    Paying an intern to produce a report that allows us to spy on Kamela Harris in 2020 won't do. Hiring a law firm to commission a security firm to retain Rudy Giuliani to pay that same intern to produce a report on the other hand, will be more than enough to do the trick so long as the precedent of the 2016 election is allowed to stand.

    Our "democracy" wasn't very stout to begin with. If Syria or Russia held elections which were in practice limited to just two parties we would deem them lacking. If one of those two parties was able to use the instruments of the state to spay on the other, we would be screaming bloody murder. #ReleaseTheMemo is not about a legal argument. It is about shinning a light on the corruption of our system.

  • OtisAH||

    One irony in this matter is that we are supposed to gasp at the fact the DNC funded parts of the dossier, and then dismiss the dossier altogether. On the other hand, we are supposed to forget that Nunes has already been caught red-handed in mid-shenanigan a few months back, which led to the oddest recusal in recusal history, so we can all gasp at the memo Nunes's office wrote to itself.

    Also, the FBI began looking into the matter before they received the dossier. And, though there are parts of the dossier that have not been verified, and many parts that have been verified, there is no part that has been proven false.

    But then, none of this memo business has anything to do with actual malfeasance on the part of the FBI. The idea of malfeasance within the FBI planted in the minds of as many people as possible will be enough.

  • Bob from Ohio||

    "The idea of malfeasance within the FBI planted in the minds of as many people as possible will be enough."

    Politics ain't bean bag. Comey should have thought this through before he involved the FBI in politics.

  • Sarcastr0||

    The collateral damage you're so blithely throwing aside as part of the rough-and-tumbe would be the independence of federal law enforcement, and the accountability of the executive.

  • Bob from Ohio||

    Then I guess Comey should have really thought twice before he started it.

  • OtisAH||

    "Started it"? Started what? Dropping a letter ten days before the election? Was that the letter that was supposed to have helped Clinton?

  • iowantwo||

    He would have done it sooner, but McCabe was sitting in the new evidence for three weeks, until the rank a file threatened to go public.

  • Pacific||

    Do you mean the FBI NYC office called "Trumplandia" with a direct line to Rudy Giuliani? That's where the "evidence" sat that you wanted disclosed for the benefit of the Trump campaign? Is that it?

  • Sam Gompers||

    FBI NYC a bunch of corrupt hacks, but no way FBI DC are! FBI agents are pure and infallible, unless you're in NYC!

  • Sam Gompers||

    FBI NYC a bunch of corrupt hacks, but no way FBI DC are! FBI agents are pure and infallible, unless you're in NYC!

  • OtisAH||

    Actually, the letter only stated that new emails were located and that they may be relevant to But Her Emails. The new emails had not been reviewed at the time the letter was written, and were later found to be duplicates of other emails that showed no evidence of illegal conduct.

  • Rev. Arthur L. Kirkland||

    How are McCabe, Rosenstein, Comey, and Mueller -- Republicans all -- different from the rank-and-file at the FBI, except perhaps a shade more Republican that average?

    Keep swallowing, clingers.

  • TwelveInchPianist||

    I'm not sure they had much of a reputation for independence anyway. I heard that they were trying to change the outcome of this election way before this Trump/Russia thing.

  • OtisAH||

    Oh, is that what you heard?

  • TheSculptor||

    Big if true.

  • TwelveInchPianist||

    Sure. I heard it right after Comey released his letter about the emails on Wiener's laptop.

  • DKWalser||

    Otis -- "And, though there are parts of the dossier that have not been verified, and many parts that have been verified, there is no part that has been proven false."

    This is BS on stilts. Many parts of the dossier have been proven false. Some of the people named in the dossier have never visited the countries the dossier says that they visited, for example.

    Also, the only 'mid-shenanigan' Nunes was "caught red-handed" committing was holding a news conference in which he disclosed information to the public before he shared it with the members of his committee. That's failure to extend to them the courtesy of letting them be the first to know, it's NOTHING more than that. Adam Schiff, the ranking minority member, threw a royal fit. It was for that reason, and for that reason only, that Nunes stepped back.

  • OtisAH||

    First, no. Point to the matters that have been proven false or move on. But if any of it has to do with showing the cover of Carter Page's passport book, you can save the effort.

    Second, no. The shenanigan I'm referring to was [in fact, last March/April] and had nothing to do with The Memo. This was his first sad, failed ratfuck that led to his alleged "recusal". But I appreciate you supporting my point that we are supposed to forget the matter.

  • MatthewSlyfield||

    "But then, none of this memo business has anything to do with actual malfeasance on the part of the FBI. The idea of malfeasance within the FBI planted in the minds of as many people as possible will be enough."

    The FBI has a well documented history of malfeasance, particularly concerning getting involved in political matters.

  • OtisAH||

    And past misdeeds have what to do with now?

  • KevinP||

    Past misdeeds point to the likelihood of current day misdeeds.

    If you doubt this, you may want to invest in the next Bernie Madoff investment opportunity.

  • DJK||

    Are you serious? The FBI's tenuous relationship with truth is very well documented over a period spanning decades.

    Left is right. Up is down. War is peace. The left is defending the FBI while the right complains about FISA. Let's try for some intellectual consistency, for once.

  • Sarcastr0||

    Defending the independence of the FBI, and laughing at the idea that we can use propensity evidence to prove they're trying to overthrow Trump is not the same as saying the FBI is a beacon of freedom.

  • Stephen Lathrop||

    The left is defending the FBI while the right complains about FISA.

    DJK, I don't see how that's an offense against intellectual consistency. More the contrary. In differing factual situations, we can expect consistently-defended intellectual principles to lead in diverse directions. What you seem to be calling for looks more like ideological consistency—or maybe not even that, maybe just tribalism.

  • Jonny Scrum-half||

    Did you think that Mark Fuhrman's taped comments that he was caught lying about were enough to let OJ walk? For you, did the fact that the LAPD had a long history with the Black community mean anything regarding whether OJ should have been convicted?

  • Allutz||

    Just a note that, even though Nunes is highly partisan, he never recused himself, he temporarily gave Mike Conaway (not sure this supports the anti-Nunes people much) leadership to let an ethics probe finish. Then he returned to his post when they found nothing.

    His statement at the time of the alleged recusal reads,

    Despite the baselessness of the charges, I believe it is in the best interests of the House Intelligence Committee and the Congress for me to have Representative Mike Conaway, with assistance from Representatives Trey Gowdy and Tom Rooney, temporarily take charge of the Committee's Russia investigation while the House Ethics Committee looks into this matter. I will continue to fulfill all my other responsibilities as Committee Chairman, and I am requesting to speak to the Ethics Committee at the earliest possible opportunity in order to expedite the dismissal of these false claims.

  • TwelveInchPianist||

    So it may be legal for a President to use his party's opposition research to get a secret warrant to spy on the opposing party's campaign? Maybe we should change that.

  • Sarcastr0||

    RNC->DNC->FBI.

    At no point was the President involved.

  • TwelveInchPianist||

    Sigh. The FBI works for the president.

  • OtisAH||

    Siiiiiiiiigggggghhhhhhhhhhh, yeah, that's what Trump thinks, too. The FBI works for the people of the United States of America.

  • Sarcastr0||

    For your story about the President spying on Trump, you would need to infer that Obama called the FBI and said 'go tap Trump.'

    That is where you are now.

  • TwelveInchPianist||

    And Obama reportedly ensured that the information about the investigation would leak precisely because the feared what would become of the investigation under Trump. You can't have it both ways, if the FBI is subject to political interference under Trump, then it was subject to political influence under Obama.

  • JesseAz||

    Steele was hired after the RND stopped funding FusionGPS.

    How dishonest are you?

  • Sarcastr0||

    Dishonest is going a bit far there, Jesse.
    RNC was a bit facile, but the main point remains - first the project was funded by Republicans, and then when Trump became the nominee it was picked up by Democrats.

  • M.L.||

    I love this talking point.

    "But the Trump-hating, Clinton-voting Bush Family hired that oppo research firm before too!!"

  • Sarcastr0||

    MI - read the TIP comment I was replying to and you'll see why this 'talking point' punctures the currently going partisan narrative about the FBI's actions.

  • Sam Gompers||

    RNC surely did hire Fusion, but they stopped paying Fusion before Steele was ever involved.

    This is just another BS obfuscation talking point made by people who refuse to critically consider the content their mindmasters and brain tenders feed them.

  • NToJ||

    What's the proposal? That warrants for investigations against foreign spies in the United States be public? There are a lot of aspects of FISA that I find objectionable, but that wasn't one of them.

  • SimonP||

    So you think Obama OK'd a secretive campaign by the FBI to investigate various Trump aides and clingers-on, in order to facilitate some future deep-state coup - assuming he managed to get himself elected - but Obama didn't bother to tell the FBI to, uh, stop investigating Hillary?

    Do you want everyone to know how stupid you are?

  • Rev. Arthur L. Kirkland||

    I gather most of the knuckle-draggers are unaware that every FBI director has been a Republican since . . . wait, has there ever been an FBI director who was not a Republican?

    Carry on, clingers. Even more tying of your political wagon to bigotry and backwardness, please.

  • DKWalser||

    Does failing to reveal the source of funding, in and of itself, invalidate the warrant? No. However, I'm sure the court would have appreciated knowing that it was being asked to authorize the FBI to spy on the campaign of the Republican candidate for President and that the 'evidence' in support of the application came from the competing campaign. Steele wasn't a Boy Scout who'd just happened to come across what might be evidence of a crime. He was a hired gun actively working to defeat a candidate. Court's should stay a mile away from electoral politics (as should the FBI!). I doubt the judge would have signed off on the warrant had the full context been disclosed.

  • FatDrunkAndStupid||

    This is a powerful argument that probably should have been noted in the article. Most appellate judges have signed off on warrants at some point in their career. And no judge, if presented with "evidence" paid for by the opposing candidate in a Presidential race would authorize a warrant to spy on the other candidate based on that evidence alone. Whatever the case law or broad principles, the government must ultimately contend with the fact that what they did in this specific instance was utterly unconscionable and that it would infuriate any impartial judge to be duped in such a manner.

  • SimonP||

    In other words, judges should behave some other way than they typically do or as legally required, just 'cause.

  • Stephen Lathrop||

    Suppose Carter Page came to the attention of the FBI before Steele got into it, and had already been targeted by the FBI for a FISA court warrant, and the post-Steele warrant application was for a routine-renewal. Would any of that matter to you?

  • Caldey||

    The "dossier" is clearly a set of scandalous and otherwise baseless allegations Steele received from his Russian sources about Donald Trump, the successful candidate to be a major party nominee for the presidency. The most significant thing about it is its success in dividing and weakening the "United" States for the past year and half. "Beware the Greeks bearing gifts," but be doubly skeptical of any Russian assertion that eludes verification. "Trust, but verify." The great value of the Mueller investigation will probably be its revelation that the "dossier" and the political division were the greatest success of Russian efforts to affect the 2016 U.S. election and weaken the United States.

  • Sarcastr0||

    A bunch of the dossier has been independently validated since then. Doesn't mean it's all true, certainly means your 'clearly' is more wishful than accurate.

    Though I would be happy if the Mueller investigation turns up only extensive Russian efforts. At least then we can combat them in the future.

  • Brett Bellmore||

    Old propaganda technique: Mix things that are innocent, but can be proven, with things that are ugly as can be, but for which no evidence exists. And expect people to reason, "Ah hah, he DID order the salmon, he must have murdered his wife just as this says!"

    Has anything *criminal* been independently validated?

  • Pacific||

    Yes.

  • Sarcastr0||

    First, you have no proof this technique is being used other than that it is a thing that exists. I agree - verify each detail, but so far nothing has contradicted anything in the memo.

    Second, that your standard has become 'was it criminal?' says a lot of how far we have come from the early days of collusion being ridiculous.

    Third, even your defense is a step back from Caldey's clearly a set of scandalous and otherwise baseless allegations.

  • Absaroka||

    At the risk of diverging from the political food fight, the Strifler logic seems pretty bad to me. It reads "It would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive."

    Well, sure. But knowing that informants are in general sleazes is like knowing defendants are in general guilty; neither points of general knowledge help you decide the particular case at hand. Have the government tell all it knows, so the magistrate can make the best possible decision. What's the possible downside? The only one I can see is that, occasionally, a warrant that wouldn't have been granted if all the facts were on the table ... wouldn't be granted. That sounds like a feature to me, not a bug.

  • Rev. Arthur L. Kirkland||

    The ratio of conservatives to libertarians at the Volokh Conspiracy appears to be roughly 10-1.

    Those numbers apply to Conspirators and to commenters.

  • JohnST||

    Michael Hihn said:
    "the Reason commentariat has 3-4 times as many conservatives as libertarians and most seem to be from the authoritarian right"

    How do you identify the "authoritarian right"? People who want the FBI and DOJ to abide by the law? People who don't go with using unverified opposition research to justify surveillance? Maybe people with little toothbrush mustaches?

  • DJK||

    Are you new to the Reason forums? If so, don't bother engaging. Michael Hihn is a notorious no-true-Scotsman type. Best to ignore his only vaguely topical rants.

  • Rev. Arthur L. Kirkland||

    Perhaps DJK is new to the Volokh Conspiracy, and actually believes that "often libertarian" claim.

  • TommyD2000||

    Isn't the FISA court for counter intelligence? Since the evidence is not, and can not be (unless signed off by the attorney general), used to prosecute a crime, how does that interact with the 4th amendment analysis above? Furthermore, the requirements for a counter-intelligence FISA warrant is less than for a criminal warrant, then this provides a back-door to monitoring domestic political rivals.

    FYI, "The reason behind that was to ensure that FISA, with its lower legal thresholds, was not used in a criminal case to circumvent the more strenuous requirements of Title III and Rule 41, the authorities for criminal wire taps and search warrants, respectively."

    The quote is from Jim McAdams from a podcast for Federal Law Enforcement Training Centers. Reason won't let me paste the URL (more than 50 characters). Hyphenate all the spaces in the last section to get the right URL.
    https://www.fletc.gov/audio/foreign intelligence surveillance act fisa part 2 mp3

  • TommyD2000||

    Also, since the FISA is not for criminal proceedings then shouldn't it be secret like grand juries so that "persons who are accused but exonerated by the grand jury [should] not be held up to public ridicule."
    Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 US 211 (1979)

    The fact that the Democrats (Adam Schiff) keeps talking about all the secret material he's seen would seem to
    have made this a political question rather than a legal one, no?

    And as to politics, wasn't Mueller appointed to conduct a special investigation of collusion with Russia, which is based on a FISA warrant, which are used for counter-intelligence cases, but special prosecutors can only be appointed to investigate a specific crime? The narrow 4th amendment analysis seems to be missing the forest for the trees.

  • TommyD2000||

    Quite strident for being wrong. The special counsel legislation expired in 1999, so Clinton's impeachment was under a different legal authority.

    As for whether it is appropriate for the appointment to be open ended, here is the current regulation, which both requires a "criminal investigation" and for the "specific factual statement" of what is to be investigated:

    The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and—
    (a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
    (b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

    The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated.
    CFR: TITLE 28—Judicial Administration

  • DJK||

    28 CFR 600.4(a):

    Original jurisdiction. The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.

  • DJK||

    28 CFR 600.4(b) also seems pretty relevant:

    Additional jurisdiction. If in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel's jurisdiction or assign them elsewhere.

  • DJK||

    Please explain how the appointment letter is consistent with the controlling federal regulations.

  • TommyD2000||

    None of those are crimes, and as pointed out below 28 CFT 600.4(a) allows the investigation of all crimes that stem from obstruction of the investigation into the original crime. Unfortunately, "i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump" is not a crime, and the first part of the authorizing regulation requires a "criminal investigation."

    The accusation of coordination of the Russian government and individuals of the Trump campaign is predicated on the FISA warrant.

    Also I find it odd how you keep accusing others of bullying you even though all of your comments are filled with invective.

  • aluchko||

    Coordination could be a crime if they were coordinating what to do with illegally obtained emails.

    Coordination could also be a crime if it was part of a preexisting money laundering conspiracy.

    Having a foreign intelligence service perform a bunch of campaign related activities for you could also be campaign finance fraud.

    Lying to Congress while under oath about your contacts with the Russian government is also a crime.

  • TwelveInchPianist||

    Ken Starr asked for, and received, a separate appointment to investigate Clinton's lying under oath in the Paula Jones lawsuit wrt Monica Lewinski.

  • TommyD2000||

    Right and the broadness of the appointment is the problem and not consistent with the regulation. The fact that it was done does not mean it was appropriate.

  • JesseAz||

    You may want to look into the actual statute authorizing Special Prosecutors. It does need a specific crime.

  • iowantwo||

    Bet the law authorizing the special counsel requires the citing of specific crime to be investigated

  • Voize of Reazon||

    I'm guessing when you say "special prosecutor" you mean Independent Counsel as authorized by 28 USC chapter 40 which requires a preliminary investigation of "potential violation, or allegation of a violation, of criminal law". As I recall though, Mueller's appointment was as a Special Counsel via 28 CFR 600 which only requires that the AG (or acting AG) "determines that criminal investigation of a person or matter is warranted".

  • DJK||

    The full text you're referring to is:

    Additional jurisdiction. If in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel's jurisdiction or assign them elsewhere.

    It seems pretty clear that this requires the special investigator to go back to the AG for additional jurisdiction. Did that happen? I confess myself ignorant of the behind-the-scences goings-ons in the DOJ.

  • iowantwo||

    Criminal investigation. You seem to know your stuff. Maybe you can tell me exactly what crime Mueller is investigation.

  • DJK||

    Try a Google short link: https://goo.gl/

  • Brett Bellmore||

    No, no, no, no, no! People can't see where short links go by hovering over them, they're evil.

    Just use html, it's not like it's freakishly hard.

  • Brett Bellmore||

    So, you're proposing we do the analysis as though "parallel construction" weren't a real thing?

  • cja||

    Basically, you can arrange the deck chairs any number of times and argue Russia, Russia, Russia but it doesn't change the truth - that the Democrats could not accept the results of the election, and have since then gone off the deep end.
    They're in trouble- politically, financially, electorally, and maybe legally.
    It's going to be a very long time before I vote Democratic again.

  • JohnST||

    A long time before I expect to see a Democratic candidate I can vote for. I voted for Adam Schiff (!!) the first two times he ran. Seemed like a very mellow and moderate guy. His behavior lately is just hard to believe. This is what is expected today by the Democrats' base. The video of Manchin at the SOTU beginning to rise and applaud, then looking to his right and seeing that this was a no-no and quickly sitting down says it all.

  • Rev. Arthur L. Kirkland||

    Great points, cja. For me, the turning point was when Robert Mueller abandoned decades of masquerading as a Republican to push the Democratic agenda. How about you?

  • Lee Moore||

    A couple of details.

    1.It's not the Steele dossier it's the Fusion GPS dossier. We don't know how much of it Steele produced and how much Fusion GPS produced. It has been marketed as the Steele dossier rather than the Fusion GPS dossier for obvious reasons. One of the questions is whether Steele's input was overmarketed to the court.

    2. It was for a counter intelligence investigation, not a criminal one. Precedent schmeshedent.

  • Brett Bellmore||

    That's the question, isn't it? Was it for a counter intelligence investigation, really? Or was the counter-intelligence investigation just used as cover for spying on the opposition's campaign?

  • Brett Bellmore||

    According to the sources I've read, that's just a talking point, and nothing that originated in the first contract ended up in the "dossier".

  • Sam Gompers||

    Steele was the dossier's author. Steele was hired after any Republican had terminated work with Fusion GPS.

  • Rev. Arthur L. Kirkland||

    You should refrain from unqualified assertions, Sam Gompers. You're not up to handling them.

  • Michael Cook||

    As a legal layman I can accept that Hillary funding the creation of evidence to (1) immediately discredit her opponent, and (2) to unleash the awesome surveillance ability of our government to intercept the communications of her opponent in a kind of giant fishing expedition, thus to further discredit and maybe indict her opponent in 2016, well, all that may be just dandy under present law.

    But consider this--Republicans have recently reauthorized FISA courts. Republicans are generating an awful lot of extremely condemning reports and memos about their political opponents, with more to come. Why can not the Trump administration commence covertly unmasking any person they wish who from 2016 to now communicated with any Russian person or entity? Once unmasked, why should not transcripts of complete communications be forwarded to the White House? Once there, how can anyone know whether political aides browse through the reports and extract whatever they need from the snooping on targeted political opponents?

    After all, Obama was a law professor. If we learn that his W.H. did such practices, why shouldn't Trump's?

    If I were a Dem, I would be worried about Trey Gowdy leaving the House. Rep. Gowdy claims he only wants to go back to law enforcement, but as what? A federal judge? A Mueller-style special counsel on a major new investigation? Maybe Trey only wants to be a federal judge. That;s possible. . .

  • iowantwo||

    The 4th amendment red herring, was interesting, but still a red herring.
    The Steele dossier, was unable to be verified by the FBI. That means the FBI considered it fabricated. They then in turn, knowingly decieved a judge to get the warrant. The warrant that was earlier refused by the judge for lack of cause.
    Whats the 4th ammendment take on that

  • aluchko||

    Unable to be verified and fabricated are two very different things.

  • Rev. Arthur L. Kirkland||

    Maybe in your reality-based world, but you are being swayed by reason, education, and a lack of faith.

  • ReaderY||

    I think the situation is simpler and more basic than that. Imagine a criminal defendant arguing that because the prosecuter is his sworn opponent and has a vested interest in seeing him convicted, all the evidence the prosecutor assembled is so inherently biased that it must be thrown out. Why, exactly, is the relationship between political opponents in a democratic political system so different from the relationship between judicial opponents in an adversarial judicial system as to make the analysis different in the one case than the other? Politicians, like prosecutors, have a commitment to the country and the system that is supposed to go beyond their differences with and opposition to each other. Why in the world should cases about rivalries between criminals be considered even relevant to legal or political rivalries. The latter are not merely lawful but privileged activities, and their participants should not spuriously be presumed to go about fabricating evidence about each other.

  • Michael Cook||

    Can a matter "spuriously be presumed" if it has been investigated by Congress and findings presented? Should the term be tentatively presumed or provisionally presumed or at least rather-more-likely-than-not presumed?

  • Rev. Arthur L. Kirkland||

    I am beginning to doubt that Prof. Kerr is sufficiently loyal to Pres. Trump to be worthy of or considered for a position in the Trump Department of Justice. I'm not sure it would even be worth Pres. Trump's time or breath to ask Prof. Kerr for a direct, personal assurance of personal loyalty. I guess we must leave it to other Conspirators to be candidates for legal positions controlled by the Trump administration.

  • Michael Cook||

    I did not notice if any of the Supremes this year fell asleep during Trump's longish SOTU. These judges even more than the Democrats do not jump to their feet for the victim/hero introductions, which Trump as a former reality TV host does rather well. Even hardened TV talking heads themselves cried during the intro of the guy from N. Korea who waved his crude crutch in the air. The TV did not pan over the justices during that so we don't know who was sleeping this year.

    I was hoping to get a rise out of someone on my speculation of what new job Rep. Trey Gowdy is hoping for. As a committee head well-versed in the Hillary email controversy and how that pro-forma tepid FBI investigation resulted in Strozk and/or Comey or both composing an exoneration statement early in the investigation of America's appearance-of-impropriety-queen (not to mention the FISC issue) former prosecutor Trey Gowdy could be plugged into a major situation anywhere.

    It is said that Peter Schweizer's book Clinton Cash has become popular reading at the FBI.


    t

  • Rev. Arthur L. Kirkland||

    I was hoping Trey Gowdy has decided it was time to finally vindicate his ostensible conservative principles and try to earn a living off the public teat.

  • Kazinski||

    This is the most tone deaf post I've seen from Orin in 10 years. He shouldn't need it explained that Congress has a different function than the courts.

    The courts will allow all sorts conduct from the FBI, CIA and NSA that the people and Congress would find outrageous. The idea that congressional oversight should be limited to just what the courts would find problematic is ludicrous.

    A majority of the House Intelligence committee decided that the FBI's conduct was outrageous and very troubling.

    Those that oppose releasing the memo are afraid the public will agree. It really doesn't matter what any rubber stamping FISA court thinks about it now. Its Congress' function, and the people's, to decide if the laws need to be changed in response to this. And it's up to the House Intelligence committee to decide what the American people need to know about the FBI's conduct, whether that conduct broke any laws or not.

    If the FBI doesn't want this sort of thing getting out, they should not have done it in the first place.

  • Brett Bellmore||

    It strikes me that this whole discussion is some hours premature. All we really know about the memo is that when they see it, Republicans think the public ought to see it, and that Democrats and the FBI seem desperate that they not see it.

    I'm going to guess that it's something more than Nunes saying that Mueller is a poopy face, and something less than the FBI having dispatched a team of assassins to kill Trump the morning after the election. But that's just a guess. In a few hours we shall know, and this discussion will be more productive, if only of heat.

  • OtisAH||

    No, it will be snippets, devoid of context, that will trigger sirens and torn garments, and ultimately amounting to little. And there will be nothing productive to come of it except more cover for the administration.

  • Brett Bellmore||

    I have no doubt that most of the MSM, to the extent they report the contents at all, will do it that way. But enough outlets will provide us with the opportunity to just read the damned thing, that it will get out anyway.

    If the FBI doesn't like the memo, claims it lacks context, they can provide that context.

    But, as it stands, I don't see how we can productively discuss it without seeing it.

  • Rev. Arthur L. Kirkland||

    Where "enough outlets" = Breitbart, Fox, FreeRepublic, and Stormfront.

  • SimonP||

    Yeah, and how do you think you'll productively discuss it, knowing that substantial additional detail essential to weighing its validity has been selectively withheld by people with a vested political interest in misleading you? The FBI can't rebut it. Congressional Democrats can't rebut it. It's going to be a cherry-picking memo selecting one strand of behavior from a universe whose size we can't even see. What kind of "productive discussion" do you think you're going to have, exactly, besides exactly the one Nunes wants you to have?

    You're just a chump.

  • Rev. Arthur L. Kirkland||

    Please excuse Brett. He is too busy trying to get to the bottom of the Obama birth certificate, and burnishing his 'I am a libertarian' brief, to do much else.

  • Kazinski||

    "Done what? We don't get to pick and choose a reality."

    Used opposition funded research that had not been verified to justify a FISA warrant on a political campaign. And you are right, we don't get to pick our reality, if it didn't happen then Nunes and the House Intelligence committee will lose a lot of credibility.

    If it did happen then it's going to be a major hot on the FBI and Comey and the Mueller investigation. This whole investigation is ending up hurting the investigators a lot more than it's hurting Trump.

  • Sarcastr0||

    A majority of the House Intelligence committee decided that the FBI's conduct was outrageous and very troubling.

    You do understand how little proof value that has, yes? Do you perk up and listen when all the Congressional Dems condemn something Trump has done as outrageous?

  • Kazinski||

    That's why they are releasing the memo. We can see how much evidence they have. In fact none of the pushback I am seeing is saying it didn't happen. Just that it's misleading

    If fact you seem to be conceding that if the facts are as alleged that it is "troubling and outrageous".

    You are certainly cynical enough to know that the more one side is fighting tooth and nail to keep something under wraps the more likely it is to be true.

  • loki13||

    "That's why they are releasing the memo. We can see how much evidence they have. "

    Actually, the complaint is that you can't see any of the evidence. This is a four page memo, compiled by Nunes and his staff, that is (according to others with access to the evidence) filled with misstatements and omissions.

    Which is credible, considering the source. Now, if the claims were credible, this would not be used as a partisan hobby horse, but to justify deep reforms to the FISA process, don't you think?

    Not to mention, by the same party-line vote, they are choosing to suppress an "alternate" version of those events.

    Now, you may be that gullible, but I choose not to be. Not that I am overly trusting of the FBI, but I would actually trust Jesse, here in these comments, before I would trust Nunes, when it comes to credibility. If you follow me.

  • Brett Bellmore||

    "Not to mention, by the same party-line vote, they are choosing to suppress an "alternate" version of those events."

    Not at all. The Republican memo was first released to the whole House, (Over Democratic objections!) and only released to the public after the House had a look at it.

    At the same meeting where they voted to release the Republican memo to the public on a party line vote, the Democrats asked for their own memo to short circuit this process, and be released to the public directly without review. That was voted down on a party line vote.

    The same committee then voted unanimously to release the Democratic memo to the House for review, on the same terms as the Republican memo had been released. After due review, taking just as long as the Democrats insisted on for the Republican memo, the Democratic memo will likely be released to the public, too.

  • Sarcastr0||

    Coordinating with the White House! Well, that certainly gives the weight of objectivity to things!

    And I know Brett isn't so naiive as not to recognize burying a memo when he sees it.

  • SimonP||

    It's almost like you didn't read Orin's post.

    Orin provides quite a bit of context for thinking about the Steele dossier's role in all of this. For example, the relevance of its inclusion could be minimal if there was substantial corroborating evidence besides that found in the dossier itself - which experts on FISA courts have long been saying is typically necessary to get a warrant. Moreover, the Steele dossier's genesis may not actually be all that problematic if it just tipped off the FBI to true things and wasn't patently untrustworthy. Simply drawing a line from the DNC to the FISA warrant isn't enough - not for any sane, reasonable person.

    Basically, what people like you are saying is: You don't care if Carter Page was doing anything illegal. You don't care if the FBI might have had other reasons to pursue an investigation of him. All that you care about is whether his illegal activity just happened to be discovered because someone doing opposition research for the DNC tipped the FBI off. And you don't even care because that might arguably have violated Carter Page's due process rights. It's because you're convinced the FBI is somehow stacked with anti-Trump traitors, and you won't stop until you find evidence that you're right.

  • ||

    A brilliant explanation of what might guide the thinking of a FISA *judge*. Tone-deaf on how this plays in the court of public opinion.

    What the public will see is that the FBI both neglected to do its duty to independently verify a report before using it in a warrant application, and it intentionally hid relevant information.

    And I'd bet my salt that any FISA judge would have liked to know that information in an application was funded by a political opponent of the subject of an investigation.

  • Brett Bellmore||

    I don't know, my impression is that the FISA judges are, in practice, rubber stamps, rejecting only 0.03% of warrant applications. Which is to say they go years at a time without rejecting even one application.

    There isn't any way to spin that as good. If the judges are doing their jobs, the people asking for the warrants are being much, much too conservative about asking for them.

    But it's implausible that's the explanation, the more likely one is just that the judges are rubber stamps, turning down applications only in the most utterly egregious cases.

    In light of that, I expect they really would rather not know such things, they have to be aware they're part of an abusive process.

  • SimonP||

    What the public will see is that the FBI both neglected to do its duty to independently verify a report before using it in a warrant application, and it intentionally hid relevant information.

    Ironically, that is exactly what the Republicans in the House are doing, by voting to release the memo.

  • M.L.||

    This seems like premature and sloppy framing. Kerr hasn't exactly questioned "the premise of #releasethememo" (which is just that the memo should be released). Instead he's questioned what he presumes to be the premise of the memo itself. And it seems like the analysis is, if we assume all facts favorable to the FBI, and assume there is nothing else to the memo and underlying facts other than this one narrow premise, then maybe nobody broke the law when they spied on their political opponents kind of like Watergate.

  • Eric Rasmusen||

    Prof. Kerr misses the elephant in the room, in two senses. In the first, sense, the elephant is the omnipresent in 4th Amendment Law: the law protects only criminals, not innocent people, from illegal searches. (It does this by limiting relief to the police not being able to use what they find in court, which is unnecessary if they never intend to indict you.) The more specific sense, the elephant is that the purpose of the warrant wasn't to investigate a crime, it was to be able to spy on the Attorney-General's political enemies. This is more than a little relevant. In every case cited in the post, the police had no motive to use informants they thought were totally unreliable. Why bother to do the search if you think it's not going to find anything? That provides a powerful reason for courts to presume (rebuttably) good faith on the part of the police, and give weight to their local knowledge and expertise. In the Steele dossier case, the FBI had a motive to get the wiretap even if it knew 100% the informant was unreliable, because their Democratic bosses could use the wiretap anyway (and quite likely the FBI civil service bosses were anti-Trump too, as we now know).

  • loki13||

    "Prof. Kerr misses the elephant in the room, in two senses. In the first, sense, the elephant is the omnipresent in 4th Amendment Law: the law protects only criminals, not innocent people, from illegal searches."

    It's helpful when a person making a comment helpfully provides the information necessary to allow you to discount his comment in the very first sentence. Thanks!

  • loki13||

    In an effort to not just be snarky, even when it is blindingly obvious, I will explain.

    Yes, the contours of Fourth Amendment jurisprudence are almost always litigated during the criminal process. That said, it is there to protect the innocent.

    If you're sitting in your home, drinking some beer and watching the Superbowl, why can't the police bust down the door and start tossing the place looking for drugs, just because the police have nothing better to do that day? Because you're protected by the warrant requirement of the 4th Amendment.

    The various requirements of the 4th Amendment act to cabin the government's power; while people think of it in terms of a Law & Order episode, it really functions as a shield to ensure ... how should I say, this... oh yes ... "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]"

  • Brett Bellmore||

    So, how does this protection work? Do you past a copy of the 4th amendment to your front door, and the battering ram bounces off?

    No, the only remedy I'm aware of, outside of highly unusual cases, is that the fruits of the search can't be used against you in a trial. Which is of no use at all to somebody the police didn't intend to prosecute in the first place.

    Take the John Doe investigation in Wisconsin, as clear a case of a politically motivated witch hunt as you could ask. People got their doors busted down, their persons threatened, their houses damaged, their papers and effects seized and not returned for a long while. All for political, not legal, purposes.

    What damages did they get after it was over?

    Why, none. None at all.

  • loki13||

    Sometimes, I wonder if people just ... deliberately try to not understand.

    So, let's say there is no 4th Amendment. None. What happens?

    Well, the police enter your house, without a warrant, 'cuz they want to. Now, you might say- "But they do that anyway because of SOME EXTREME THING I CARE ABOUT!" Yes, Virginia, bad things happen in the real world sometimes. The Constitution doesn't magically come alive and grow giant super-muscles to defend UR RIGTHZ just because Brett Bellmore wishes really really hard.

    No one says, "Gee, the First Amendment is bunk because SOME REALLY BAD THING HAPPENED and it took forever to litigate it out."

    You would think these things don't need to be explained, yet here we are. Wait, reading through these comments, not only do these things need to be explained, explanations don't help. Nevertheless, Prof. Kerr continues to post.

  • Eric Rasmusen||

    Very nice answer. Thank you.

    Loki13, the reply you make to Mr. Bellmore completely fails to address it, and you should think more before you type what's on the surface of your brain. As he notes, it's that litigation not only takes a long time, it also loses, according to current law. We really are no better off than if we didn't have the 4th Amendment, with the big exception that although the police are free to search us without punishment, they can't use what they find against us in court unless they follow the proper procedures. Why, then, don't the police do more illegal searches? --- because they usually lack a motive. I don't think they find illegal searches fun, or like to harass people just for the heck of it, especially since so many Americans own guns. But when they do have a motive, how are you going to stop them?

  • loki13||

    "We really are no better off than if we didn't have the 4th Amendment, with the big exception that although the police are free to search us without punishment, they can't use what they find against us in court unless they follow the proper procedures."

    Except, that's not true, is it? Where do a large percentage of 1983 claims from? Wait for it. Wait for it. Wait for it.

    That's right. The 4th Amendment. Just like you "vindicate" your rights with the 1st amendment via 1983, you do the same with the 4th Amendment.

    I honestly don't think you've thought about this, at all. Do you understand this area of the law ... I'm sorry, are you "typing [more than] what's on the surface of your brain[?]"

    /facepalm

  • loki13||

    So, if this isn't completely clear to you, the reason the police don't bust down your down and ransack your house without a warrant, just 'cuz they feel like it, is because that's a clear violation of the 4th Amendment ... and that would be bad and actionable. It wouldn't be a hard case at all, which is why we don't see it. It's like saying the reason the government doesn't just shut down newspapers whenever they feel like it is because, or, they are all nice and stuff.

    But there's plenty of cases that get litigated all ... the ... time. Just look at NYC trying to defend the stop and frisk policy (that was a class action 4th Amendment case). Seriously, this used to be a legal blog. There has to be some threhhold of knowledge.

    I'm going back to just being snarky, given the lack of knowledge.

  • Naaman Brown||

    loki13 - I miss your avatar.

  • M.L.||

    Shocker - A memo criticizing the FBI is a "grave risk" according to the FBI.

    Anyway, the proper way to disclose information is by anonymously leaking to CNN and such. If necessary use a buddy as an intermediary, maybe a Columbia prof.

  • M.L.||

    Also, later on you can have your buddy claim he was your attorney.

  • Sarcastr0||

    It's a grave risk according to the DOJ, not the FBI.

  • SimonP||

    Anyway, the proper way to disclose information is by anonymously leaking to CNN and such. If necessary use a buddy as an intermediary, maybe a Columbia prof.

    How much classified information are we talking about, buddy?

  • Ghost of Patrick Henry||

    Not sure if this was mentioned, but the information used to get the warrant came from Russians.

    Was this disclosed?

    Were the Russians who fed information to Steele part of their intelligence service?

    Was this disclosed?

    A FISA warrant is not like a regular warrant because it requires a lower standard of proof and they are secret. Potential for abuse is higher. That is why this is so dangerous to our freedoms.

    Finally, doing this to a Presidential campaign is interfering in our elections. This is much worse than any allege but not proven Russian meddling.

  • Sarcastr0||

    Russians != Russia.

  • SimonP||

    Finally, doing this to a Presidential campaign is interfering in our elections. This is much worse than any allege but not proven Russian meddling.

    Investigating Russian interference in an election while that election is taking place is "interfering in our elections"? That's a new one.

  • Ghost of Patrick Henry||

    Not sure if this was mentioned, but the information used to get the warrant came from Russians.

    Was this disclosed?

    Were the Russians who fed information to Steele part of their intelligence service?

    Was this disclosed?

    A FISA warrant is not like a regular warrant because it requires a lower standard of proof and they are secret. Potential for abuse is higher. That is why this is so dangerous to our freedoms.

    Finally, doing this to a Presidential campaign is interfering in our elections. This is much worse than any allege but not proven Russian meddling.

  • Michael Cook||

    This whole thing is like fighting a duel with blowtorches. I suspect that the Democrat side will run out of fuel first and thereafter will just be blowing compressed air. No spark in the world can ignite that.

    I do think Trey Gowdy is going to be in the news a lot in months to come.

    I do think that after Stormy Daniels got her chest implants, a silicon shortage was noted.

  • Bored Lawyer||

    This argument strikes me as weak for two reasons.
    First, while it is true that the typical informant is both sleazy and often has a personal bias or motive against the target, in this case, we are talking about someone who was paid to dig up dirt about a political opponent. That kind of bias takes it to another level.
    Added to that, the dossier is hearsay. Which while still valid for a warrant application, is still weaker. This is not an irate neighbor ratting out the drug den next door, or a jilted lover ratting out her ex-boyfriend. This is a paid political hack repeating information he gleaned from others, often others located in foreign countries. The level of credibility is attenuated over the typical situation.
    Second, the case law you cite deals with largely with motions to suppress evidence gained from an assertedly defective warrant. IOW, after the fact. But when applying for a warrant, generally done ex parte, there is an ethical duty to be completely candid with the Court. ABA Model Rules 3.3(d):


    In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.


    Was the omission of the provenance of the Steele dossier consistent with that rule?
    Do you think the judges on the FISA court would have wanted to know about where the information was coming from?

  • Bored Lawyer||

    (ctd.)

    Third, the cited law is besides the point. The combination of political dirt-digging, paid for by one political party, with the machinery of law enforcement ought to disturb anyone who believes in proper govt. That the warrant is still valid after the fact in a criminal proceeding is a misdirected argument.

    When Nixon (and later, allegedly, Obama) used the IRS against political opponents, that was properly viewed as an abuse of power. The fact that if the IRS had indeed uncovered tax fraud that could have led to civil or even criminal charges is neither here nor there. An abuse of power it still was.

  • Brett Bellmore||

    Um, minor technicality: Nixon tried to use the IRS against his political opponents. They refused to do it.

    He's the one who got audited as a result, not his opponents.

    Mind, trying to get the IRS to do that was awful enough, even with the failure. But the IRS is a weapon with "ego", it turns in your hand if you're a Republican.

  • SimonP||

    Third, the cited law is besides the point. The combination of political dirt-digging, paid for by one political party, with the machinery of law enforcement ought to disturb anyone who believes in proper govt.

    I believe in proper government. Among other things, that means that our elected representatives shouldn't selectively declassify information in order to deflect from an ongoing investigation, without giving Americans all the information they need to assess the relevance of the information the politicians have chosen to declassify.

    Nunes isn't even being shy about it. He's telling us one side of a story while blocking everyone else from telling the other side, and he has cast anyone who is jumping up and down about this one-sidedness as being, well self-interested. Like that sycophant isn't. Anyone who believes what the memo says will be a gullible fool.

  • SimonP||

    ...in this case, we are talking about someone who was paid to dig up dirt about a political opponent. That kind of bias takes it to another level.

    Why? Oh, just 'cause. Gotcha.

    I thought Orin addressed this already. The relevance of an informant's being paid is whether it would factor into the informant's reliability as a source. A paid opposition research isn't being paid to fabricate facts or mislead their client. They're being paid to find demonstrable facts. It's like saying that you don't trust newspapers because journalists are paid to write stories.

    But when applying for a warrant, generally done ex parte, there is an ethical duty to be completely candid with the Court. ABA Model Rules 3.3(d):...

    *Snirk* Yeah, reminds me of Gamergate: it's about ethics in the courtroom. Sure, buddy. All the heat over the Nunes memo is about whether a lawyer or two should be sanctioned for violating the ethics rules.

  • swood1000||

    The problem is that FISA warrants are not like normal criminal warrants, especially when the target is the political party opposite to the party in power requesting the warrant. Shouldn't this increase the burden on the requester to inform the judge of all contrary facts, especially in cases where the judge previously refused to allow a FISA warrant on such persons? If the current FISA rules do not require contrary information to be disclosed to the judge in such circumstances then the law should be changed. In either case there was a wrong that needs to be righted.

  • Sarcastr0||

    You are mixing your 'is' and 'ought.'

  • swood1000||

    You are mixing your 'is' and 'ought.'

    What do you mean? I am saying that the rule should be that people requesting a FISA warrant on their political enemies must disclose to the judge any weakness they are aware of in their justification for the warrant, including whether the evidence they are presenting was developed through a process funded by a political party antagonistic to the target of the warrant.

    If that already is the rule, then it was violated if such disclosures were not made available to the FISA judge in this case, and action should be taken. If that is not already the rule then action should be taken to modify the rule. So action should be taken in either case.

  • Sarcastr0||

    If that is not already the rule (and it looks like it isn't), then that part of the memo has little to say about the virtue of the FBI's current investigation, no?

    I'm all for a grand how to reform FISA thread. But this isn't it.

  • swood1000||

    If that is not already the rule (and it looks like it isn't),

    Why does it look like it isn't? We don't even know whether or not this information was disclosed to the FISA judge, or whether the judge asked them about this and they equivocated.

    then that part of the memo has little to say about the virtue of the FBI's current investigation, no?

    Yes, if that is not already the rule then the FBI committed no wrongdoing on that score. However, in that case this remains a scandal because the people will be outraged that a rule should be in place allowing political actors to use the power of the government to wiretap and spy upon their political opponents, simply by presenting to the FISA judge unverified evidence generated by their own political party in order to denigrate their political opponents (the target), without disclosing to the judge all that is known about the source of the information. Don't you agree?

  • Sarcastr0||

    Kerr goes into detail what the requirements are. Is there any reason to believe that the FISA protocol is more restrictive other than you want it to be?

  • swood1000||

    Kerr goes into detail what the requirements are. Is there any reason to believe that the FISA protocol is more restrictive other than you want it to be?

    Is there some part of my last post that you disagree with? Do you think that a party in power should be able to use unverified opposition research generated by their own party to get a FISA warrant to wiretap the other party during an election without being required to disclose to the judge everything they know about the source of the information?

  • Sarcastr0||

    So it is 'ought' masquerading as 'is.'

    I probably agree with you about FISA. But this is a helluva convenient time to get worried about decades-long FISA policy.

    Like I might have thought Comey was crappy, but that doesn't mean I smelled a rat when Trump leaned on him and then fired him.

  • swood1000||

    I probably agree with you about FISA. But this is a helluva convenient time to get worried about decades-long FISA policy.

    Do you think that the FBI followed decades-long FISA policy? With reference to the released memo, is it your impression that decades-long FISA policy does not require those requesting a FISA warrant to disclose to the judge that their primary source, without whom they would not be requesting the warrant, (a) was paid over $160,000 by the DNC and Clinton campaign to obtain the derogatory information on Trump being relied on in this request, and (b) had admitted to the Justice Department (with this information also recorded in official FBI files) that he "was desperate that Donald Trump not get elected and was passionate about him not being president"?

  • Sam Gompers||

    Comey in Senate testimony stated the Dossier was "salacious and unverified".

    That kind of spoils much of Kerr's argument. If the people at the FBI didn't verify it or knew it was hot garbage, why was it anywhere near a FISA warrant application?

  • Sarcastr0||

    Hadn't verified it, not didn't. Unverified can be a temporary status.

  • Sam Gompers||

    Comeys statement that it was unverified was after it had been used for a warrant though.

  • aluchko||

    Good point, if only there were some constitutionally defined mechanism through which investigators could verify unverified information.

    The standard for a search warrant isn't verified information, it's probable cause. Even if the dossier was the major basis for the warrant (which is wasn't) as long as it was credible that's sufficient basis for a warrant.

  • Michael Cook||

    Tomorrow America gets a lot to think about. The memo is only a four-page summary of what the evidence shows, not the evidence. The bulk of that will all come out, and a lot more in addition. Understand that the memo will likely only name 6-10 FBI top brass as doing shocking things to protect Hillary and destroy Trump, even after he was president-elect.

    Understand also that it will turn out that there were dozens of FBI agents near enough to the top ranks to notice that a genuine cabal had come together and were busy trying to change history by methods not at all kosher. These dozens could not report their bosses to their bosses, so they went to the Inspector General instead, as whistleblowers.

    The whistleblower stories will come out in March, with a lot of other types of evidence that I expect will prove beyond a reasonable doubt every disputed fact in the Nunes memo and the main inferences drawn from thos facts.

  • loki13||

    "The whistleblower stories will come out in March, with a lot of other types of evidence that I expect will prove beyond a reasonable doubt every disputed fact in the Nunes memo and the main inferences drawn from thos facts."

    So, I've seen quite a few of your posts. And, to be charitable, your track record isn't that great.

    Let me put it this way; let's assume that this doesn't occur. Let's assume, for a second, that the FBI disputes this, that there are calls for the release of more information, and after those calls are acceded to (after the House tries to string it out), we find out that, to be charitable, Nunes omitted a lot of information that didn't help the point he was trying to make.

    What then? Do you change your mind? Do you start viewing your sources more skeptically? Or do you just keep keepin' on, thinking that the "real truth" never came out, etc.? I'm genuinely curious! Because I know that if it plays out like you think, I would be genuinely shocked, and re-evaluate. Something I regularly do. But ... and I mean this in the nicest possible way, you seem to put a lot of ... stuff ... that isn't right, and never seem to look back. Does that work for you?

  • MikeR613||

    I'll speak for myself, no one else. I would be very happy to learn, after a careful investigation, that the FBI is doing its job honestly. I would definitely change my mind then.
    What about you? What if the memo does name names etc. as suggested? Will you open your mind to the possibility that it is true; would you insist on an full investigation? Or would you - as so many are doing - deny the possibility entirely, denounce this political tactic to distract from Mueller's investigation, and declare that any further steps in this direction could do irreparable harm to our nation's security and (whatever)?

  • loki13||

    We are already reasonably confident as to what the memo alleges.

    In addition, "both sides" have acknowledged that the memo fails to acknowledge that the FISA warrant was based on substantially more than just the Steele dossier.

    So, yeah, I'd like to know that the Senate looked into the FISA application. And I'd love to see it myself. If Nunes is right, full investigation. If he is full of it (which is my current opinion), then his needs to roll. I'm comfortable either way,

  • MikeR613||

    The memo doesn't "fail to acknowledge it", it denies it. So yes, I too would like to see the FISA applications, suitably redacted.
    It boggles my mind that this memo was marked Top Secret. The only secret is how partisan the FBI is.

  • loki13||

    " So yes, I too would like to see the FISA applications, suitably redacted."

    Do you know who else should probably have seen it before the release of the memo?

    Nunes. Kinda weird that he didn't, don't you think?

    And it doesn't deny it, by the way. I'm not sure if you're used to reading these sorts of documents, but you need to pay attention to the weasel language. Saying something plays an "essential part" doesn't mean that it was the only part, or even an important part; that's a characterization.

    I recommend reading this with less charity, and more of a skeptics approach.

  • Stephen Lathrop||

    Almost every comment here defending the memo will get discredited if one quite likely fact turns up in reply. What if it turns out that Carter Page was already under FBI surveillance before the Steele dossier was a thing? What if the FISA court had already issued previous warrants to investigate Page, and the application in question was just for a routine 90-day renewal?

    The Wall Street Journal yesterday reported, "Court documents, testimony show foreign-policy adviser was known to authorities as early as 2013." If that turns out to be what's behind the FBI protests that omitted information turns the memo into misinformation, it's also going to make many of the comments on this thread look pretty stupid.

  • OtisAH||

    Actually, that Rosenstein renewed/extended a warrant against Page has been in the reports since this news broke. It's most of the discussion around the news that appears to ignore that fact. And I am of the mind it won't get much mention in The Memo, since the narrative is supposed to be that Rosenstein abuses the FISA process so Trump can replace him.

    On that last bit, I am a little surprised that Trump hasn't tried to use the Rosenstein "Comey was mean to Clinton so he has to go" letter, that the administration likely commissioned and which never made a lick of sense, to fire Rosenstein. If I was looking for grounds to fire him, and didn't care that I was the one who asked for the justification to fire Comey in the first place, that seems to be where Rosenstein is truly vulnerable.

  • swood1000||

    What if the FISA court had already issued previous warrants to investigate Page, and the application in question was just for a routine 90-day renewal?

    But the allegation is that the wiretapping went beyond Page.

  • Stephen Lathrop||

    Was that because when they wiretapped Page, some other stuff turned up? What are you talking about?

  • Michael Cook||

    Reports on Fox indicate that early on Carter Page was intimidated into wearing a wire. Trump knows this, and decided to go ahead anyway.

    Democrat representative know all into that was "omitted" from the memo (which is quite a lot, because it was only a summary after all) and they might have leaked it or today they might just release it all. Let's see what they've got. The bets are placed, time to lay down their cards.

    All I have been hearing for the last year is this or that Trump associate needs to lawyer up pronto. Well, watch a handful of federal employees and maybe former Obama administration officials decide real soon they need some of the high-powered Democrat law firms (ubiquitous as weeds in a Roundup-Free zone in the beltway to start studying the pickle they are in.

  • loki13||

    .... and I'm already seeing the answer to my question. I guess it was rhetorical.

  • Michael Cook||

    Certainly I would spin on a dime and change all my opinions and denounce my own arguments if sufficient evidence appears. If you embrace lies and know it, you eventually lose your sanity.

    However, I do not think the weight of evidence will force me or any Republican to do that. I expect some negative facts about the Trump election team, transition team, and White House team will emerge and be massively amplified by the mainstream media and all Democrats. Over-riding that is the reality expressed by Sen. Rand Paul this morning (which I must paraphrase, taking it from live TV:)

    "This isn't your grandfather's intelligence service. Today they have the ability to snoop on everything. Anybody's phone calls or communications. The danger for misuse for political purposes is much greater."

  • loki13||

    So ... I'm just going to throw this out there. I mean, ignoring the whole thing about conspiracies and their less-than-exalted place in history (not to mention just how DEEP it would have to do).

    There has to be some internal consistence. And I mean this on both sides. But it's really difficult to imagine some giant deep state/Clintonista/Obama conspiracy against Trump that:
    1. Allowed him to get elected.
    2. Consistently put out dirt on Clinton via the FBI.
    3. Kept the ongoing investigation "under wraps" until after the election.
    4. Pretty much kept it a low pitch until Trump began doing things like demanding personal loyalty, dismissing Comey, and, um, having joking meetings with the Russians (not to mention getting people to draft letters about the dismissal of Comey and then saying on TV ... nope, it was about the Russian investigation).

    Look, just like the Democrats can't say Comey was anti-Clinton during the election, and then their savior afterwards, you have to try and be consistent in your views. It really makes no sense that there would be this massive deep-state cabal that has all this power and that both allowed Trump to get elected, and was easily found out by ... um .... Nunes. If you know what I mean. Not completely impossible, and I'm willing to be persuaded to change my mind, but I don't start from a position of gullibility.

    I would recommend looking back at your posts; you might be surprised what you have stated with certainty in the past.

  • swood1000||

    But it's really difficult to imagine some giant deep state/Clintonista/Obama conspiracy against Trump that:

    Your argument seems to be that if such actions had been taken against Trump they would have been successful and there would have been no slip-up allowing the whole thing to be discovered. Since they weren't successful and were discovered these things obviously didn't take place.

  • loki13||

    No, that's not my argument.

    Consistency. If there was this giant deep-state anti-Trump agenda, then why was FBI doing the whole Clinton thing? Why the letter right before the election (which was against policy, and was the, um, ostensible grounds for Comey's termination ... remember?). Why didn't they publicize this before the election?

    That's the thing with this "theory." It's absolutely crazy. Sure, it could be true. Anything, in a relativistic world where we all believe what we want to believe, could be true. But who do you believe, Trump's tweets, or your lying eyes?

    You just get to a certain point where you're like, "Okay, everyone know Lucy keeps pulling the ball out. But this time it will be different." More power to you- I can't accept that type of cognitive dissonance.

  • swood1000||

    Consistency. If there was this giant deep-state anti-Trump agenda, then why was FBI doing the whole Clinton thing?

    Let's not get blown away by what we imagine deep-state actors would be doing. It would be possible for a Deputy Director of the FBI who is willing to bend the rules to slow-walk some new evidence against Clinton in part because he favors Clinton. That is, unless we accept that all law enforcement personnel are by definition exemplars of virtue.

    And it would be possible for a person requesting a FISA order to leave out certain information that he thinks would cause the judge to deny the request, and to do this either out of an excess of zeal, or out of a desire to accommodate political appointees much higher in the chain of command, or even out of personal antipathy toward the target of the request. This kind of thing must happen in law enforcement all the time. It takes on a different character, however, if undertaken to impact a presidential election.

  • OtisAH||

    No, what you have been hearing for the past year is Trump Adjacents actually lawyering up, not being told that they should lawyer up. You may be confusing that with yesterday's expanded story on the cover-up of Junior's infamous meeting with Russian spies in which Bannon is said to have warned Hope Hicks she had better lawyer up.

    And I'm not saying no Democrat will need to lawyer up in relation to the ongoing investigation, but I am saying there's no sign of any need to do so at this moment. But keep hope (and Hope's career?) alive, I suppose.

  • MikeR613||

    The post seems to be too focused on a narrow legal point. This is a political issue: Are conservatives correct that there is an overt political bias within powerful factions of the FBI and DOJ, to the extent that the DNC can order up harassment of their political opponents? The memo presumably tries to argue so. I imagine - as you say - that the memo isn't extensive or inclusive enough to prove it. It might be helpful in convincing a lot of people, though.
    Proving that point might require a full investigation by a special prosecutor or IG of the DOJ. A lot of people would support that; maybe more after the memo is released.
    It would be nice to have this established. If it is true, it would be essential to root it out. We had this kind of thing once with J. Edgar Hoover; we don't want it again.
    Unless it supports the DNC, of course.

  • loki13||

    "Are conservatives correct that there is an overt political bias within powerful factions of the FBI"

    Great point, and a long time coming! For decades people have complained about the Liberal/Democratic bias of LEO in general, and the FBI in particular.

  • Michael Cook||

    If you want battlin' hypotheticals, imagine this: Trump survives all these storms and after awhile it is truly his FBI, DOJ, CIA, State Department, NSA, and so forth. Do you really want the second coming of J. Edgar Hoover armed with the precedents of Obama-era over-reaches?

  • loki13||

    Perhaps you are not equipped to understand sarcasm?

    There are no battling hypotheticals. There are many adjectives that I would use (most of them quite pleasant!) to describe LEO in general, and the FBI in particular. None of those adjectives would be "Liberal" or "Democratic-leaning."

    While all LEOs (including FBI agents) are assumed to leave their partisan preferences at home when they go to work, it should be pointed out that the FBI is 67% white male, largely ex-military. Of course, if you know many LEOs or FBI agents, you probably also know that they aren't bleeding heart liberals for the most part.

  • Michael Cook||

    Exactly! And that is why many of them turned whistleblowers to the Inspector General when the Comey-McCabe-Strzok, Page, and maybe, maybe Mueller cabal began its dirty deeds. Stay tuned for that I.G. report next months.

    Dang, I hate holding my breath all morning waiting for BREAKING NEWS. It is not even 9 am PST and I am seriously contemplating breaking out the brandy.

  • OtisAH||

    Carter Page is PART of the cabal that allegedly violated Carter Page's civil liberties? That's it folks, these libs have GONE TOO FAR!!!

  • Brett Bellmore||

    Ok, now that I've read the memo... Unless it is to some significant extent fiction, it's pretty damning.

  • OtisAH||

    Leaving aside the fact you don't say how it is damning (I think we can all guess anyway), but by my reading, everything in it is addressed by Prof. Kerr's post here.

  • Brett Bellmore||

    Damning in terms of the FBI leadership's ethical standards. Kerr's post merely has to do with how awful the system for obtaining warrants is, in practice.

    But being able to get away with something doesn't mean you should do it.

  • OtisAH||

    I suppose like many things, "damning" isn't what it used to be.

  • swood1000||

    Leaving aside the fact you don't say how it is damning (I think we can all guess anyway), but by my reading, everything in it is addressed by Prof. Kerr's post here.

    Do you mean by this that you believe that in requesting such a warrant the FBI would not have been required to disclose to the judge that their primary source, without whom they would not be requesting the warrant, (a) was paid over $160,000 by the DNC and Clinton campaign to obtain the derogatory information on Trump being relied on in this request, and (b) had admitted to the Justice Department (with this information also recorded in official FBI files) that he "was desperate that Donald Trump not get elected and was passionate about him not being president"?

  • SimonP||

    You are its target audience, after all.

  • Michael Cook||

    * the FISC judge was not told anything about the highly partisan origin of the dossier--not initially, not in any of the two renewals of the Carter Page warrant. Won't it be interesting how this judge will react to being dragged down the garden path?

    * the dossier was (according to McCabe himself!) the main, the critical information that was flashed before the eyes of the judge. Actually, the dossier got a double whammy at that, because the exhibits introduced mainstream media reports that suggested Trump/Russian collusion--but the MM had actually been briefed on the dossier content BEFORE they wrote their stories and BEFORE the warrant requests. That is circular reporting.

    * Christopher Wray hasn't resigned yet. Maybe his objections to the release of the memo this week were only posturing to promote his image. He wants to be a long-term FBI director.

    * data digestion continues, the brandy is down from the shelf

  • SimonP||

    the dossier was (according to McCabe himself!) the main, the critical information that was flashed before the eyes of the judge.

    Pay attention to the actual language they used. They didn't actually say this anywhere.

  • swood1000||

    But they did believe that the dossier was the critical information, without which they would not be requesting a warrant. So they probably didn't downplay it with the judge.

  • Sarcastr0||

    As Kerr has noted, you are using a whole new standard. Maybe a better one, but you're not worried about fixing FISA or national surveillance policy, you want to defend Trump by any means you can.

    'Critical information' is notably not 'determinative information' or 'seminal information.' They even say the investigation started well before this.

    The 'criticality' of the dossier also appears to be a fact in dispute by the FBI, DOJ, and Democrats.

  • Michael Cook||

    * before the Nunes memo came out today, the Washington Post strongly editorialized against the 4-page summary based on testimony and documents that it took a year for the FBI to hand over to Congress. This is the WaPo that glories in its bravery in the Pentagon Papers and the Watergate scandal. The WaPo actually screamed for prior restraint censorship! Of the blockbuster story of this century and maybe the last century as well!

    I suggest:
    Nunes memo = free speech = quintessential Congressional scrutiny of the FBI at work to
    prevent authoritarian abuse by that powerful agency

  • M.L.||

    Well, now that the memo is out, it sure looks like each of Kerr's carefully constructed benefits of the doubt (and I appreciate his thoughtful efforts there) are systematically obliterated.

    While I still have little reason to doubt Robert Mueller personally (other than maybe his decision to skate past his conflicts of interest), the entire Russia investigation itself is certainly dubious.

    Ok, Russians spent a few thousand dollars on some laughable Facebook ads in broken English that played to both ends of the political spectrum equally (compared to billions spent on political advocacy by campaigns and other parties).

    Perhaps, they also hacked and released DNC emails (although we have no proof of this, just the say-so of some folks who may be the very same people implicated by this memo). They likewise reportedly attempted but failed to hack the RNC.

    Anything else? A Russian met with Jr. under pretense of providing dirt on Clinton, but it didn't happen. But Russians DID provide questionable dirt on Trump to Clinton/DNC/Fusion/Steele et al. Would that be "collusion"? Seems like "Mueller time" should be just about running out at this point. Release your findings and let's move on.

  • GILMORE™||

    now that the memo is out, it sure looks like each of Kerr's carefully constructed benefits of the doubt (and I appreciate his thoughtful efforts there) are systematically obliterated.

    I imagine his retort would be "well we still don't 100% know if the memo claims are true because the applications themselves aren't disclosed"

    The only conclusion would be to demand the publication of the FISA applications themselves, which others have argued for in the recent past

    http://www.nationalreview.com/.....plications

    This is the only sensible response - demand the releast of the applications.

    yet many seem to be clinging to the idea that the 'lack of 100% confirmation' of the memo's contents is reason to continue to give the benefit of the doubt.

  • Sarcastr0||

    ...um, the memo argues precisely along the lines that Kerr assumed, and which Kerr addressed as dubious based on previous precedent.

    The fact that most of your post goes off about Russian collusion and not the memo tells a lot about the merits of the memo.

  • Michael Cook||

    * It is suggested the roll-out of the Nunes memo today seriously compromises the "sources and methods" of the FBI and maybe other agencies. Hey, they took what was basically a fictional press release from the HRC campaign and used it as their main source in applying for a FISA warrant(s), What sacred sources and methods process was in play here????

  • GILMORE™||

    I appreciate the legal-eagles parsing this, but it seems the bulk of the analysis is an attempt to compare the standards of witness-reliability in regular court trial...

    ...to those used in FISA. and as he himself admits: FISA isn't a normal court.

    you need to know all of the facts claimed in the Carter Page FISA affidavit to know if disclosing the funding source of the Steele's research was even remotely relevant. My understanding is that FISA applications like this are rarely close calls. DOJ usually gives the FISC way more than probable cause. ... If that's right, it means that Steele's research may have been included in the affidavit amidst a ton of other evidence. And if so, the Steele research itself may have been wholly irrelevant to the application.

    Or it may have been completely relevant. if his argument hinges on assuming it wasn't... it makes you wonder why - particular since the memo released today claims:

    * The Steele dossier formed an essential part of the initial and all three renewal FISA applications against Carter Page.

    * Andrew McCabe confirmed that no FISA warrant would have been sought from the FISA Court without the Steele dossier information.

    if this guys argument requires assuming it "might have been irrelevant"... one has to wonder why McCabe asserted its essential importance under testimony.

  • Michael Cook||

    At any rate, the four Trump associates who were rumbled and rolled by a Mueller investigation super-fueled with the awesome snooping power of the entire American intelligence community reportedly are preparing appeals of their compelled confessions. They will argue that they were victims of malicious prosecution, bad faith investigators, and agencies on a political crusade which conducted their approach without even a tiny smidgeon of due diligence regard what they allege before a judge.

    Oh, and there is a FISA court judge somewhere in this mix who likely today has a major headache from blindsided revelation syndrome.

  • Naaman Brown||

    Sounds like Steele primarily dug up raw intelligence detailing a range of allegations by Russian operatives.

    Steele did not investigate the factualness of the allegations, just the existence of the allegations, at first to give hide-bound GOPers something to use against candidate Trump as he ran for the GOP nomination, then to give the DNC and Hillary campaign something to use against candidate Trump as he ran for the presidential election.

    You all, GOP and DNC partisans, are missing the point.

    Donald Trump was the none-of-the-above, neither GOP or DNC, candidate for people fed up with the GOP and DNC.

    He very well prove to be the William Wilson of the GOP and DNC, and by the wounds they inflict on him, they shall utterly destroy themselves.

  • Sarcastr0||

    So you didn't see the memo, did you. The memo says it is declassified. Like, right on the memo. There is no room for this classified info.

    But the fact that you're still waiting for another shoe to drop might tell you a bit about your position.

  • Sarcastr0||

    You are on my 'side.' No need to overplay your hand on this, they are screwing themselves up quite enough.

  • Andrew Hyman||

    I read Orin's Lawfare piece, which was informative but surprisingly blasé about the unusual circumstances here, and blasé about the possible ramifications for the future. I understand Orin to be saying that (a) nothing with this FISA application violated existing law, and (b) nothing with this FISA application was even scandalous to the extent that new laws might be advisable. I doubt (a) is correct, and am certain that (b) is incorrect.

    Suppose the Steele dossier was a major part of the affidavit, was essentially uncorroborated, and was basically used as a ruse by Democratic Party leadership to get as much surveillance inside the Trump campaign as possible. All of these assumptions are strongly implied by the Nunes Memo, and are fundamentally different from the court precedents cited in Orin's Lawfare piece on account of the political implications and ramifications (not to mention that Steele's sources were foreigners and perhaps included Russian agents). Do we really want to say "ho hum, nothing to see here" and thus allow the current and future presidents to pay hundreds of thousands of dollars for fake probable cause to spy on the opposition presidential nominee, without even revealing to the FISC that that's what's really happening? The mind boggles.

  • Stephen Lathrop||

    What can anyone can do to address your concerns? Given history, it seems likely Republicans will do everything in their power, as they see it, to get even—corrupt federal enforcement powers and use them to attack Democrats.

    Table turning has happened right along. It is what Rs now lay a foundation for with the Nunes memo. Dems do something political, marginal, and unwise. Republicans take that up with glee, and counter-attack while pushing destruction of restraint and political comity to the max. Then Rs blame the Ds, claim equivalence, and whip up their base. Look for overt, unapologetic Republican weaponizing of the FBI, the foreign intelligence agencies, and the IRS, at least.

    If that gets you thinking, "Well, the Ds started it," then you're part of the problem. Here's what it would look like if Ds did what Rs have been doing: suppose Democrats win complete control of both houses in a wave election—they say to themselves, "Let's get even." They don't stop at impeaching Trump. They impeach Gorsuch too, as improperly appointed.

    That's what hyper-political Republican abuse of power and political comity would look like on the other foot. Is your boggling mind ready for that? Do you think it would be constructive?

    Both sides need to rein in their own guys, not bash the others.

  • PatP||

    Prof Kerr,
    Cite all the cases you wish, however, don't use "salacious and unverified" oppo research paid for by the Dems on a presidential candidate. Don't use circular Yahoo news resources as part of the support documentation.

    I hope that Mueller delves into mismanagement of the case. This is, I'm afraid, just the tip of the iceberg. There appears to have have been FISA Query (17) abuses going on since 2011. The declassified FISA court memorandum, April 26, 2017, indicates that going back to 2015, "85%" of the FISA querries(17) were improper and conducted by FBI contractors. Although redacted, you can ultimately guess who one of the contractors was. The day after NSA Gen Rogers cut off the FISA Queries (17), it appears that Mary Jacoby, wife of Fushion-GPS Simpson visited Pres Obama.

    I hope that more sunlight is shown throughout on both sides.

  • PatP||

    Read the memorandum for yourself.

  • ReaderY||

    Now that the memo has been released, it certainly doesn't show any sort of conspiracy within the FBI to discredit the administrations. It's revelations, if anything, tend to point in the reverse direction.

    That said, I am disinclined to think coverup rule allegations represent impeachable offenses. In my view there is an enormous difference between burglarizing the opposition's offices, which is an inherently criminal act, and firing a prosecutor, which is a political act not inherently illegal, and might be done for good or bad motives. In my view, a heightened atmosphere of political mud-slinging tends to lead people to perceive corrupt motives in everything their opponents do. For this reason, in my view, an impeachable offense should require doing something inherently illegal, not simply doing an inherently lawful or neutral act for reasons that are claimed to be bad or wrong. For this reason, I don't think coverups are likely impeachable. The thing being covered up has to itself be inherently wrong. Simply impeding an investigation by doing legal acts (like firing prosecutors) is insufficient. If there is all smoke but no fire, this is insufficient.

  • Stephen Lathrop||

    Tend to agree with you, ReaderY, but given the manic frenzy in the Trump White House, don't you suppose a likelihood that something substantively bad is behind it? After due speculation, my money would be on Trump being in hock to Russian oligarchs and unable to pay. That would put enough leverage in the Kremlin to more than meet my criteria for impeachment. We'll have to wait for Mueller, of course, but that means Mueller really has to be there. So maybe there isn't any choice but to treat firing Mueller and quashing the investigation as an impeachable offense.

    I don't like Trump (big understatement), but I have almost come to the conclusion that the best outcome for the country would be if Mueller could complete his work, wrap it up, and announce in detail—including a public reckoning of Trump's finances—why he found no cause for any charges against Trump. Based on what you can see, does that kind of outcome seem likely to you?

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