aside The Faulty Reasoning Behind Republicans’ Plan To Release The Memo

By now, sources in the know have figured out that the Nunes Anti-FBI memo is asserting that because the Christopher Steele dossier was a product paid for by Democratic monies to do opposition research against the then republican presidential candidate Donald Trump, it was not okay to use it as a basis to obtain a warrant without a full explanation to the courts as to how it was funded. First, it is extremely unlikely that the FBI could have obtained any FISA warrant on the dossier alone and so if the memo indicates that the FISA warrant was based mainly or solely the dossier, it is most likely a lie.

What is interesting to me is that Rep. Devin Nunes  of California has been one of the strongest proponents of the FISA law which was just extended this past mid January, 2018 with the same features that that the republicans are now complaining about with regards to the FISA warrant issued regarding Carter Page. This is the FISA warrant mentioned in the memo.

Finally, it has been revealed by numerous sources, that Rep. Devin Nunes has never read / seen the FISA warrant that is the basis of the memo notes.

Second, the FBI deals with sources from all walks of life who provide crucial information that the FBI is required to check out. But the source in this case was not from the criminal world. The author of the dossier, Christopher Steele was a former MI6 intelligence officer and Russia expert. He had worked the Russian desk for years where he developed valuable contacts. He had also worked with the FBI in the past to where he had credibility. This background gives him the status of a credible source. In this case, any bias that the republicans want to ascribe to him are moot when officials are seeking a warrant.

For him, to share this information with the FBI entailed him taking some risk and went against his interests. When his identity was disclosed, he and his family went into hiding out of fear of repercussions from the Soviet Union. In short, he would not have shared whatever he was told by his Russian sources with the FBI because he was biased against the president. In addition, the dossier was based on what sources had told him and nothing within the dossier had yet been vetted or verified. This is the job of the FBI. This is what they do, day in and day out. But the FBI would have been derelict in its duties if its agents did not check out what was alleged by sources within Mr. Steele’s work product.

In short, the FBI officials were dealing with a credible source and thus there was no requirement to disclose any possible bias in order to collect a warrant. In addition, it is implausible that there weren’t other pieces of information, referred to, in order to obtain the FISA warrant. If these facts are not mentioned in the memo, it is a lie

Opponents to the release of this memo can’t share this information because to explain anything could reveal classified data regarding sources and how information was collected.

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In my mind, the president is abusing his power to de-classify material outside of the standard de-classifying/ vetting process and against the specific request not to act by the FBI and the Justice Department.

The memo could have been vetted by the Justice Department’s Inspector General Michael Horowitz who had already been conducting an investigation for over one year into FBI missteps which should be finalized shortly.

Incidentally, I have been wondering if the rush to publicly release this memo isn’t an attempt to beat the clock as to when the Inspector General shares his findings.

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Here is the rest of the story…

On January 31, 2018, Orin Kerr of Lawfare penned the following report, “The Dubious Legal Claim Behind #ReleaseTheMemo”

“It seems likely that the House Intelligence Committee will soon #.  According to , 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.”

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“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.”

This is a lengthy article but a worthwhile read. It explains the laws that are relevant to this case. Here’s the link:  The Dubious Legal Claim Behind #ReleaseTheMemo – Lawfare 1/31/18


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