The Nunes Memo’s Big Lies

As I noted yesterday, one of the central allegations of the memorandum released yesterday by the Republicans on the House Intelligence Committee is the claim that the F.B.I. agents seeking the initial surveillance warrant against Carter Page in the FISA Court did not disclose the fact that one of the pieces of evidence used to support their probable cause application, the so-called Steele dossier, was financed in part by an organization called Fusion GPS and allegedly financed by the Democratic National Committee and supporters of Hillary Clinton. As it turns out, numerous reports today are saying that this was in fact disclosed to the FISA Judge who issued the warrant:

A central pillar of Rep. Devin Nunes’ memo alleging wrongdoing by the FBI — that the government did not disclose the political bias of a source when seeking a surveillance warrant — is unfounded, the Washington Post, New York Times and Wall Street Journal have reported.

President Donald Trump on Friday declassified a memo spearheaded by the California Republican that alleges the FBI abused its authority in applying for a FISA warrant to conduct surveillance on former Trump campaign adviser Carter Page.

The GOP memo claims that ex-British intelligence officer Christopher Steele, who authored a disputed opposition research dossier on

Trump that was used in the FISA warrant application, harbored anti-Trump financial and ideological motivations — including that research that went into the dossier was funded in part by Hillary Clinton’s campaign and the Democratic National Committee. The memo alleges that those motivations were not included in the FISA application, and that senior Justice Department officials knew about Steele’s anti-Trump bias.

“Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior and FBI officials,” the memo alleges.

But according to an official cited in the Post on Friday, who spoke on the condition of anonymity because of the matter’s sensitivity, the Justice Department presented “ample disclosure of relevant, material facts,” to the FISA court, including that “the research was being paid for by a political entity.”

The New York Times also reported Friday that the FISA court was told about political motivations behind the dossier. A Democratic memo written to rebut the allegations in Nunes’ document said the FBI did, in fact, tell the court that the information in the Steele dossier was politically motivated, even if the bureau didn’t mention that research that went into the dossier was paid for by Democrats, the Times reported, citing two people familiar with the Democratic memo.

The Wall Street Journal further reported that, according to a person familiar with the matter, the FISA application disclosed that Steele was paid by a law firm working for a major political party,

Steve Vladeck, a CNN legal analyst and professor at the University of Texas School of Law, tweeted Saturday that the news reports served as “proof that the #mehmo deliberately misrepresented the record to make the #FISA application look shadier than it was” and called the revelations “(f)atal to the memo’s entire premise.”

“I don’t find these reports at all surprising, because it would’ve been the responsible thing for the government to say, especially if, as appears to be the case, there was a lot of additional evidence not derived from the dossier that was part of the underlying application,” Vladeck later said in an email. “It all just further undermines not just the specific conclusions of the Nunes memo, but the larger point it’s being invoked by the President and his supporters to make.”

This isn’t the only part of the Nunes memo that appears to be a lie. The Wall Street Journal reports that, contrary to the claim in the memo, former F.B.I. Deputy Director Andrew McCabe did not testify before the committee that the Steele dossier was the most important piece of evidence that allowed the Bureau to get the warrant against Page. Instead, sources in both the Department of Justice and Congress are saying something quite different:

One new element related to purported testimony of Andrew McCabe, a deputy FBI director who just stepped down this past week, about the importance of the Steele dossier in obtaining surveillance warrants on Mr. Page. The memo alleges that Mr. McCabe testified before the House Intelligence Committee in December that “no surveillance warrant would have been sough without the Steele dossier information.”

Officials in Congress and the Justice Department familiar with Mr. McCabe’s testimony said the memo mischaracterized what he told lawmakers. He was asked what percentage of information in the FISA application was provided by Mr. Steele, and he demurred, saying the FBI didn’t evaluate such applications in such a way. Mr. McCabe was asked if it might have accounted for half of the warrant application, and he said he didn’t know, one person familiar with the matter said.

This is a significant difference from what the memo claims McCabe told the Committee and puts the warrant application and the extent to which it even relied on the allegedly compromised Steele dossier in an entirely different light from the one the memo tries to spin it.

While we can’t be sure of the veracity of these reports without seeing the actual warrant application, which remains classified, each of these reports is apparently based on confirmation from independent sources. However, as several analysts and attorneys with experience with warrant applications in Federal courts generally and in FISA courts specifically have said that it would be highly unusual for the agents and U.S. Attorneys applying for the warrant not to disclose the origins of any of the underlying evidence supporting their probable cause application. For one thing, failure to do so risks the possibility that any evidence uncovered pursuant to such warrants could be excluded from being used as evidence if it were ever used in a prosecution of a Defendant such as Page on the ground that the warrant was obtained in bad faith. For another, if the court became independently aware of this information it could harm their general reputation and impact their ability to obtain warrants in future cases. While it’s certainly possible that the parties involved in obtaining the warrant against Carter Page might have chosen to leave the information about its source out of the application, it’s an idea that strains credulity. In light of this, the Nunes memo’s entire central thesis collapses.

This revelation isn’t entirely surprising since Nunes admitted yesterday that he didn’t read the underlying warrant application before preparing the memorandum with the assistance of Intelligence Committee staff. Instead, he relied upon the notes taken by South Carolina Congressman Trey Gowdy, who is apparently the only member of the Committee who did read the application. Gowdy, of course, spent the better part of yesterday distancing himself from the conclusions in the memo and stating publicly that it doesn’t undermine the Mueller investigation in any way. Since we don’t have access to whatever notes Gowdy may have made based on his review, much less the underlying warrant application, it’s difficult to state whether or not the allegation is true, but it seems as though it is not.

If these reports are accurate, then the entire memo falls apart. The central premise of Nunes’s hit piece was the claim that the surveillance of Page, which post-dated the beginning of the Russia investigation by three months, was based on a politically biased document that had been funded by political enemies. If that claim proves to be untrue, then the entire premise of the memo falls apart and it is revealed to be the politically biased piece of trash that many people, myself included, suspected it would be all along. Of course, in order to know if this is the case or not for sure, we need to see the underlying warrant application, as well as the memorandum prepared by the Democrats on the Intelligence Committee. According to some reports, the second document is likely to be released sometime next week after it has been reviewed and revised to ensure it’s not disclosing sensitive or classified information. As for the warrant application itself, there’s no word on whether or not there will be any move to release it. On the one hand, it would answer any of the remaining questions the Nunes memo raises. On the other, it could contain information so sensitive that it can’t be released. Whatever the case, it does seem that the Nunes memo is not just a nothing burger as I concluded yesterday. It’s a big partisan lie.

 

FILED UNDER: Congress, Donald Trump, Doug Mataconis, Law and the Courts, Politicians, US Politics, , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. John430 says:

    “While we can’t be sure of the veracity of these reports without seeing the actual warrant application, which remains classified…”

    In other words, Doug. This blog posting is full of sh*t and speculation.




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  2. HarvardLaw92 says:

    Republicans should have seen this coming, because it was utterly predictable that their expectation of being able to control this narrative was never remotely realistic.

    Sure, they can muzzle the release of any official rebuttal information coming out from Dems on the committee, but they can’t muzzle the army of leakers within the body of employees of the agencies they just made a feeble effort at attacking – people who know where the bodies are buried and how to tactically leak that information to broadside the legitimacy of this stunt that Trump and Congressional leadership tried to pull.

    “You’re attacking us??? Well, just see how you like this …” was always going to happen.




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  3. Jake says:

    “It is usually futile to try to talk facts and analysis to people who are enjoying a sense of moral superiority in their ignorance.”




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  4. HarvardLaw92 says:

    @John430:

    In other words, Doug. This blog posting [Nunes’ memo] is full of sh*t and speculation

    FIFY 🙂




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  5. Scott says:

    Let’s not forget the fact that regardless of the supposed motivation of Steele or purported bias of the dossier, it has been shown to be largely factual and correct.

    And let’s not forget the fact that pretty much the entirety of the US intelligence community concluded that Russia targeted our elections.

    No matter how much sand get thrown up the basic outlines of the investigation remain.




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  6. HarvardLaw92 says:

    Note well: the beginning of the end for Richard Nixon was his vilification of the FBI. It is what motivated Felt to torpedo him via strategic leaking.

    Intelligent people just don’t pick fights with the folks who know the secrets they’re trying to hide. Trump and Friends are about to learn that lesson, I suspect. We should expect the leaking to continue, and get broader.

    Every time that I think the parallels between Trump’s admin and the paranoid alcoholic Nixon administration in Watergate can’t possibly get any more vivid – they do …




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  7. HarvardLaw92 says:

    @Scott:

    The problem for Trump is that Mueller’s investigation has gone well beyond collusion to swing an election and potential obstruction of justice issues where it was always going to go – the one place that Trump was and is terrified of it going:

    The specifics of Trump’s business dealings themselves. Remember: Trump may hypothetically be immune from prosecution while he remains president (that theory has yet to be tested, and I don’t really agree with it), but his companies are legal entities onto themselves, and they are not immune.

    Based on what I already know of those dealings, the specifics of Mueller’s lines of inquiry (who they’re talking to, who they are flipping and who’s getting immunity) and the composition of the investigatory team itself, it is pretty clear to me that the endpoint of this game is heading towards being RICO indictments for money laundering.

    That will be the ballgame. Obstruction potentially puts Trump & Friends in prison. RICO money laundering seizes his businesses & assets and puts him out of business.

    IMO that is why Trump has come out swinging – his attorneys are slimy, but they aren’t stupid. I’m certain that they’ve explained to him what’s now at stake. Prison is one thing. Being stripped of your assets and destitute is entirely another.




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  8. al-Ameda says:

    @Jake:

    “It is usually futile to try to talk facts and analysis to people who are enjoying a sense of moral superiority in their ignorance.”

    A better warning to the wise concerning efforts to communicate rationally with base Republicans has not yet been written.




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  9. Mikey says:

    @Jake: Projection is a helluva drug.




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  10. Scott says:

    @HarvardLaw92: Yep, the intersection of Russian banks, government, and criminal activity is pretty large.




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  11. HarvardLaw92 says:

    @Scott:

    All I can say to that and remain within the Canon of Ethics is:

    you have no idea …

    (but you will 🙂 )




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  12. CSK says:

    When Trump claimed, back in the summer of 2016, that “I have ZERO investments in Russia,” he was technically correct: He’d never been able to build anything there. But the key word here is “in.” While it’s true he was never able to build a Trump Moscow, most of the money he’s gotten since 1992 has been from Russian investors, given that virtually no U.S. bank will lend to him in the wake of his 4 bankruptcies. And those Russian investors are either gangsters or deeply tied to gangsters.

    Why are we even debating this? Trump’s two dimwit older sons have merrily admitted, independent of each other and on different occasions, that most of their money was coming from Russia.




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  13. Lounsbury says:

    @HarvardLaw92: The idea of Trump’s money-laundering empire being busted does bring a little potential joy to the world.




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  14. JKB says:

    @HarvardLaw92: Intelligent people just don’t pick fights with the folks who know the secrets they’re trying to hide. Trump and Friends are about to learn that lesson, I suspect. We should expect the leaking to continue, and get broader.

    It is very interesting seeing those on Left become positively giddy at the idea the FBI are a federal secret police who will act to destroy elected officials who cross them? Hardly a “professional” organization worthy of an open democracy.

    One wonders what the old “hippies” of the 1970s, who are now old and net donors, feel about their party embracing the police state and their arch-nemisis, the FBI.

    I offer the alternative that the FBI leadership and Democrat desperation to keep this memo from being released, even as they held it in their hand, was driven by fear. Fear of the rank and file, professionals at the FBI having clear, traceable revelations about the corruption in the executive suites. The revelations being anticipated may be aimed at those whose actions have besmirched the FBI’s reputation rather than those exposing that partisan perversion.

    We shall see. I’m of the opinion that this issue needs to marinate a bit before it gives up its juicy bits.




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  15. HarvardLaw92 says:

    @JKB:

    So you’re saying that the FBI should just passively sit back and say nothing to correct abuses of executive & congressional power?

    Personally, I never worried about it being released. I eagerly awaited it, because

    1) I knew what the content and character of the memo would likely be
    2) Why these clowns were releasing it / what they hoped to achieve
    3) How quickly FBI / DOJ / et al would push back & make Trump & friends look like a cross between abject morons & political hacks

    I got exactly what I wanted from this. I certainly wasn’t afraid of it. How often do you get to see your political opponents fall on a sword of their own making?




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  16. al-Ameda says:

    @JKB:
    I

    t is very interesting seeing those on Left become positively giddy at the idea the FBI are a federal secret police who will act to destroy elected officials who cross them? Hardly a “professional” organization worthy of an open democracy.

    So, you’re a “Deep State” conspiracist too?




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  17. Andy says:

    All around this looks like a nothing burger. No revelations about FISA that the GoP promised and no national security disaster following the release that the Democrats promised.

    I have no opinion on Trump’s guilt or innocence in any crimes because I don’t have enough information to judge. So I’m content to let the process continue to see where it leads.

    I’m still not sure the FISA process has enough oversight. It’s not like this is the first time we’ve been dealing with potential problems with FISA and how it’s run. It would be nice if everyone put aside politics to take a hard look at this program, but I guess we can’t have nice things.




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  18. gVOR08 says:

    @HarvardLaw92:

    but his companies are legal entities onto themselves, and they are not immune.

    Also his children and son in law. Not to imply he gives a spit about them.




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  19. Sleeping Dog says:

    @HarvardLaw92:

    It is pretty much accepted that Trump will pardon anyone close to him and, at this point, that Repubs will roll over and accept the pardons. It will also be reasonable to assume the Mueller will share his findings regarding the Trump and Kushner Organizations with the AG’s of NY, NJ and other states where Trump does significant business. If not directly, than through a report to Congress.

    He can’t pardon his way out of those prosecutions.




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  20. HarvardLaw92 says:

    @Sleeping Dog:

    The problem there is that Mueller has been engaging in cooperative strategy with state AGs for months now, Schneiderman in particular. I’ll go into more detail if you want, but the short version is that the charges Mueller has filed, particularly with respect to Manafort, are limited in such a way that they lay out a parallel case under NY state law. The net effect is to negate the benefit of any system of pardons.

    If Trump pardons Manafort, Schneiderman already has every thing he requires to immediately seek an indictment of Manafort in NY state courts for money laundering, among other offenses.

    There has been a conscious effort on the part of Mueller’s team to build that parallel structure almost from day one, which is to say that everybody Trump could conceivably pardon is already within Schneiderman’s reach, particularly Trump’s family and his business assets.




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  21. dmichael says:

    @JKB: I am one to whom you refer and who lived through some (the ones that have been revealed) of the excesses of the FBI under Hoover. I am also someone who was disappointed in the Obama administration who appeared to be acting too cautious in attempting to rein in the intelligence agencies. Remember, Obama appointed Comey who was a Republican warrior (see Whitewater). But I do not believe that this history taints any law enforcement activity of the FBI in which there has been sufficient evidence to convince rational people of the obstruction of justice from Trump and his minions. You are the one who appears to have been marinated.




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  22. Bob@Youngstown says:

    @JKB:

    Fear of the rank and file, professionals at the FBI having clear, traceable revelations about the corruption in the executive suites.

    Maybe you haven’t heard…. it’s the rank and file that gather the data, write the FISA applications, and argue them before the FISC.




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  23. JKB says:

    For one thing, failure to do so risks the possibility that any evidence uncovered pursuant to such warrants could be excluded from being used as evidence if it were ever used in a prosecution of a Defendant such as Page on the ground that the warrant was obtained in bad faith.

    You are assuming the intent of the warrant was to collect evidence for possible prosecution and not a pretense to open surveillance. Surveillance that was then used to “unmask” individual incidental to the surveillance to Obama political officials in numbers far greater than ever before.

    This could go either way and given the Democrat over-the-top rhetoric before the memo was released, they may fear the latter trail will be followed.

    One suspects the FISA judges and who ever supervises the court will be reviewing the filings. And remember, we still have the DOJ IG report that possibly prompted sudden terminal leave for at least one senior FBI official.




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  24. Guarneri says:

    Lies !! Damned lies !!

    You have become unhinged.

    Those claiming that the political nature of the dossier was disclosed have a first order credibility problem. Even according to the supposed sources, it was hide the pea. That issue was recklessly soft pedaled as “out of a political context.” What, was it the Green Party? The Natural Law Party? The FBI knew it was the Clinton Campaign and the DNC, and that it was paid for opposition research. That was not disclosed, and no one disputes that. Honest people not trying to pull one over just state the case. They don’t play hide and seek. Its a FISA warrant for Christ sake, not reality TV.

    As for the McCabe-didn’t-say-it “lie.” Says who? Schiff and Swalwell are hiding behind “I can’t tell you.” They offer no proof. Nunes has stuck to his guns on this. In fact, he has stated there are other witnesses who stated the primacy of both the dossier, and the embarrassingly silly double counting of the Yahoo/Isikoff story in the cause for the FISA application. (Really, the Isikoff story? Are we to believe we have a ship of fools running the FBI? Is that the case you want to make?)

    Here’s the good thing. These are discoverable facts. I’d suggest the Dem stonewalling has a half life of a week or two. In any event, the IG report is going to be the main event, and always has been.




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  25. Mikey says:

    @Guarneri:

    Lies !! Damned lies !!

    Yes, this memo is full of them.

    As for the McCabe-didn’t-say-it “lie.” Says who? Schiff and Swalwell are hiding behind “I can’t tell you.” They offer no proof.

    Nunes et al. don’t offer any proof, either. What McCabe actually said is not revealed in the memo. Why not? Others are quoted directly, but not McCabe. The memo was classified, so there was no reason McCabe’s actual words could not have been printed in it. But they’re not, and again, why not?

    It’s obvious to anyone with an IQ higher than their shoe size: because Nunes et al. are lying about what he said.




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  26. becca says:

    @Guarneri: maybe a nice cup of cocoa would ease your desperation…




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  27. HarvardLaw92 says:

    @Guarneri:

    I’m curious as to what relevance you believe the sourcing of the material has, at all, to its materiality with respect to supporting an application for a FISA warrant.

    Are you laboring under some sort of assumption that who initiated the dossier, or what their motivations were for doing so, are in themselves tests of its admissibility?

    Not to burst your bubble, but that’s a false assumption. They aren’t. Do you have any evidence that the content of the dossier is unreliable or inaccurate? If so, please present it, because what you’re making at present is a political argument, not a legal one.




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  28. michael reynolds says:

    @Guarneri:
    Like all the Trumpaloons you’re too clueless even to argue your case. You’ve filled your head with right-wing drivel, actually believed Trump’s idiot lies, and as a result don’t even understand the game you’re watching. You’re the clown in the bleachers asking, “Why do they have to run around the bases?” And upon that base of complete ignorance you nevertheless opine, offering the equivalent of, “Oh, that’s not fair, the pitcher guy is throwing the ball too fast!”

    Before making more of a fool of yourself:

    A) Read in on the story. Like from actual newspapers, not your usual zero hedge and Fox and Friends diet.

    B) Then, when you have at least some idea of the issues, the beats, the laws, etc…, offer your opinion.

    I think that might work. But until then you’re just a bratty child banging on a pot – alternately irritating and ridiculous – and grown-ups are talking.




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  29. HarvardLaw92 says:

    @JKB:

    not a pretense to open surveillance

    All 215 applications are requests to open surveillance. That’s the whole point of the damn court. Sheesh …

    Surveillance that was then used to “unmask” individual incidental to the surveillance to Obama political officials in numbers far greater than ever before.

    That’s kinda how surveillance works … 🙄

    One suspects the FISA judges and who ever supervises the court will be reviewing the filings.

    LOL, that would be Chief Justice Roberts, and no, they won’t. You clearly have no idea how the process of applying for a 215 warrant plays out.

    Helpful hint, it is not “agent walks in out of the blue and deposits his never seen before application in front of a judge”. You do get that, correct?

    Allow me to help you out here:

    Application is initially submitted in what is called a “read copy” form.

    Read copy gets reviewed by a team of five judicial branch lawyers who hold TS/SCI clearances and are considered to be national security experts. They attach their comments and observations, noted potential problems, etc.

    This reviewed package then gets further reviewed by the judges themselves, who, more often than not, send the application back for amendment to cure problems noted by the Five Horsemen of the Apocalypse (I didn’t give them that name, but it’s what they got tagged with …).

    Submitting party revises application, and resubmits it for review (again) by our five dark friends, who either are satisfied or who slice and dice further.

    Lather, rinse repeat until the court is happy with the final form of the application.

    That’s when it considered for approval before the actual “court” (there honestly is no “court” to speak of. FISC is comprised of sitting federal district judges who normally hear these applications ex parte in their chambers, or their living rooms, as the situation warrants).

    The extensive review you want has already happened, friend. It happened long before whichever judge signed the warrant.

    Look, I get it. You guys thought you had a political bombshell and it’s turning out to be a nothingburger. That sucks. I sympathize, but you honestly need to understand that, from a legal standpoint, absolutely zero about this situation is going to be walked back.

    Speaking as a former AUSA who has actually gone through this process & obtained FISA warrants, there is no “there” there to give you what you want. Better luck next time, I suppose.




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  30. John430 says:

    @HarvardLaw92: In other words, Doug. This blog posting [Nunes’ memo] is full of sh*t and speculation…

    Delete words “Nunes memo” and insert your name.




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  31. HarvardLaw92 says:

    @John430:

    You gotta love that inbred Texas wit, I tell you what … 🙂




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  32. JKB says:

    @HarvardLaw92: these applications ex parte in their chambers, or their living rooms, as the situation warrants

    So you are saying after all the care in controlling access to highly classified national security, foreign intelligence investigatory information, the whole matter is just discussed in a judges living room? Are you saying these judges’ living rooms are set up as SCIFs?

    And the unsubstantiated dossier’s political origins do matter in the granting of the warrant or are you saying an investigator can just go find anyone, even with personal motivation, to make unsubstantiated by evidence accusations against a person they wish to search or surveil? That certainly seems to erase the 4th amendment.

    Perhaps the scandal is that judges will grant warrants based on “research” by partisan and politically/financially/personal-animase motivated third parties.




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  33. michael reynolds says:

    @JKB:

    When the FBI goes after a member of MS-13 or a terrorist, you think maybe they act based on evidence supplied by people whose motives are less than pure? You think maybe most of the witnesses are actually co-conspirators who’ve been flipped?

    Are you actually this clueless about criminal prosecution? Here’s a thought: cops of every kind dislike criminals. Shocking, I know, but in the real world FBI agents don’t like traitors. They want to stop traitors. It’s kind of what they do. And in the case of FISA warrants the degree of care applied to procedure is far more rigorous than in your run of the mill prosecution.

    What you are actually doing is pleading for special treatment because you like the accused. That’s it. You’re like every whiny mom or brother or best friend who ‘can’t believe the cops are doing this,’ to someone you love. Well, welcome to the big wide world of crime and prosecution. This is how it’s done, but usually much, much more sloppily and with a degree of brutality just for fun.

    You want to know how fwcked Trump is? When I was arrested the cops had not 10% of the evidence the FBI/CIA/NSA/Mossad/GCSE/MI6/FSB have on him, and I ran because I knew damn well they’d convict me. If Trump were not POTUS he’d already be in jail and his lawyers would be trying to cop and deal.

    In other words, your little tin God is already getting special treatment, he’s already being accorded infinitely more care than the typical criminal defendant, and since I’ve heard you say again and again that the Law must be obeyed (when it involves dragging brown children away from their families) I’m sure you wouldn’t approve of special treatment for Trump just because he’s rich, powerful and white. Right?




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  34. Mikey says:

    @JKB:

    the unsubstantiated dossier’s

    Another Trumpist lie. Much of the dossier has been substantiated.

    Perhaps the scandal is that judges will grant warrants based on “research” by partisan and politically/financially/personal-animase motivated third parties.

    Do you think anyone who brings information to law enforcement is free of bias or personal animus? What naive world do you live in? Warrants are issued based on information from biased informants all the time.




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  35. grumpy realist says:

    @John430: I take it you have a J.D. from somewhere, have passed the Bar, and have the requisite experience to be able to accurately discuss the legal situation?

    If not, your comments are about as useful as the average troll on the internet–zero.




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  36. HarvardLaw92 says:

    @JKB:

    So you are saying after all the care in controlling access to highly classified national security, foreign intelligence investigatory information, the whole matter is just discussed in a judges living room?

    If exigency requires it, yes. It’s uncommon.

    Are you saying these judges’ living rooms are set up as SCIFs?

    No, but neither are their chambers. That having been said, provisions (which I will not discuss with you for obvious reasons) exist for the consideration of supporting materials which are actually classified. This material wasn’t. You’re trying to build a strawman here.

    And the unsubstantiated dossier’s political origins do matter in the granting of the warrant or are you saying an investigator can just go find anyone, even with personal motivation, to make unsubstantiated by evidence accusations against a person they wish to search or surveil?

    Another strawman. The content of the material is evaluated. While sourcing may color the degree of scrutiny afforded to the material, it is not disqualifying with respect to the admissibility of the material. Protection for the rights of the surveilled party / parties is afforded by virtue of the independent review conducted by the attorneys mentioned above as well as the judge reviewing the application.

    I, for example, have sought and obtained warrants predicated entirely on information supplied by parties whom I knew, without question, were supplying it solely in order to facilitate their own objectives – namely removing the target of the surveillance in order to facilitate supplanting them within the criminal enterprise. Why, you ask? Because the sourcing of the material did not compromise the content of the material.

    As a prosecutor, to be honest I couldn’t have cared any less about what your motivations for helping me were. What I cared about was the legitimacy of the information you provided to me. If it’s legitimate, and I can establish that it’s legitimate, I don’t care if it originated from Escobar himself and I don’t care why he gave it to me. If I’m satisfied that it has merit, and I satisfy a judge of the same, the 4th Amendment burden has been satisfied.

    Or are you now just trying to assert that every federal judge sitting on the bench is corrupt as well?

    That certainly seems to erase the 4th amendment.

    Actually, no, it doesn’t. You’d know that if you had actually read the 4th Amendment. You are not protected against all searches. You’re protected against unreasonable searches.

    Satisfying the 4th Amendment requires:

    Establishing probable cause
    Support for the establishment via oath or affirmation
    A description of what is to be searched

    Our constitutional system places the power to determine whether these conditions have been adequately satisfied in the judiciary. Federal judges evaluate the totality of the application & supporting evidence, including the sufficiency & probative value of that evidence, and make the decision as to whether approval of a warrant is merited.

    You may not like that, but it’s not your decision to make. I do, however, find this sudden sense of concern on your part for civil liberties to be amusing.




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  37. JohnMcC says:

    @JKB: Did you know that you have accidentally duplicated the left-wing’s objection to the FISA process all by your little self!

    So cute.




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  38. Daryl's other brother Darryl says:

    @JKB:
    It is very interesting seeing those on Left become positively giddy at the idea the FBI are a federal secret police who will act to destroy elected officials who cross them?
    Funny how you characterize the truth, as opposed to the Nunes memo which is blatantly false.
    How dare anyone share the actual facts when they will serve to destroy Denture Donnie?
    You’ve sold your soul to a con-man, and now you are spinning like a top trying to justify your idiocy.




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  39. R.Dave says:

    @HarvardLaw92: Not that I put the least bit of stock in the Nunes memo or any of Trump’s defenders, but as someone with a strong civil libertarian streak, the FISA process in general strikes me as problematic, particularly when applied to Americans and really particularly when applied to Americans involved in an ongoing Presidential campaign. I’m curious whether you think the current FISA process, if correctly followed, is sufficiently protective of suspects’ rights, particularly in politically fraught cases and/or cases where investigators really do have improper motives for seeking the warrant? Either way, do you see anything at all in the present situation that might reasonably suggest either improper motives or a failure to abide by normal FISA rules and norms? Anything that gives you pause?




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  40. HarvardLaw92 says:

    @R.Dave:

    I’m a former AUSA, so the answer I’ll give to that question is unavoidably tempered by having served in that role. The short answer is that it’s the best compromise we can construct between the necessity of protecting civil liberties and the exigencies of protecting a nation against legitimate threats. Is it perfect? No, but compromises rarely are, and this compromise is a necessary one.

    The present situation doesn’t bother me, no. The material in question was voluntarily sourced to the FBI, and the party responsible for compiling the analysis is well regarded as a national security expert. I’ve seen no indication that the conclusions raised in the dossier are flawed, and as far as I can ascertain (I haven’t seen the application), due diligence was conducted. I know two of those five mentioned above. They’re legitimately experts in this field. If they considered the dossier to constitute a reasonable basis for probable cause, I’m comfortable in accepting their conclusions.




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  41. R.Dave says:

    @HarvardLaw92: Thanks for the reply. Yeah, I’m not an absolutist, so I definitely get the need for some sort of system for dealing with situations when domestic law enforcement and national security intersect. I was just curious what your view on it all was given your experience as an AUSA that’s gone through the FISA process yourself. One other question, if you don’t mind commenting on a former AUSA colleague – what’s your take on Andrew McCarthy’s legal analysis of the Trump/Russia investigations over at National Review? Even I notice some obvious omissions of fact and leaps of logic, and he’s quite clearly engaging in advocacy rather than detached analysis. That said, do you think his legal arguments are generally well-founded (even if they’re one-sided), or do you think he’s purely just blowing smoke to mislead all the laymen reading his columns into thinking there’s actually something there?




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