February 6th, 2018

A lawyer’s and a judge’s reaction to the Nunes memo

Surprisingly enough, this piece by Hugh Hewitt appeared in the WaPo, of all places. Hewitt formerly held a job that’s very relevant to opining on the FBI’s FISA application to surveil Carter Page:

Having reviewed hundreds and hundreds of Foreign Intelligence Surveillance Act warrant applications [in his former job as special assistant to the attorney general] as the final stop between the FBI and the desks of Attorneys General William French Smith and Edwin Meese III, I read the Nunes memo as revealing one major fact that stands out above all other revelations: The FISA warrant for surveillance on Carter Page (and the three subsequent renewals of the warrant) omitted a material fact. While the FBI admitted that the information came from a politically motivated source, the bureau did not disclose that the source had been financed by Hillary Clinton’s presidential campaign. That is a damning omission.

Note that Hewitt says this despite the fact that it’s been reported (by anonymous sources) that in its FISA application re Page, the FBI made some sort of reference to political funding of the Steele dossier. As I wrote this past Saturday [emphasis mine]:

But let’s accept for the sake of argument that the FISA application did include an indication that some “political entity” had backed the dossier. The FISA court certainly would not have assumed that it was actually the DNC and the Clintons who were that entity or entities. Remember, among other things, that many Republicans were very anti-Trump, and that the MSM originally reported that the Steele dossier was funded by Republicans. There are a lot of political entities in the world, some big and some small, major and very minor. The DNC and Clinton were among the biggest fishes of all, and the most suspect in terms of their motives. The FISA court was unaware they were the funders of the dossier, although the FBI was well aware of it.

That’s the issue Hewitt is talking about in that quote, and that’s the issue being referred to as well in this quote from Hewitt’s article involving an email he received [emphasis mine]:

Upon publication of the Nunes memo, a retired federal judge emailed me: “There is not an officer of the court in the land who in the context of this particular application to the FISA court should not have identified the source of the information as having been the [Democratic National Committee] and the Clinton Campaign. If I had granted the application and then subsequently learned that the information was sourced to the DNC and the Campaign, I would have rescinded the authorization and issued a show-cause order to the Government to explain who and why this sourcing was not made known to the court. The fact (if it be that) that the Government told the court that it was a political source, but did not identify who, in this particular instance, is highly probative that the Government purposely misled the court.”

Hewitt points out that, among other things, this will have an effect on the trust between the FISA court and the FBI:

The non-disclosure of a material fact in an application for a FISA warrant — its minimization, indeed one could argue its camouflaging — is a very big deal and its provenance should be thoroughly investigated. It threatens to undermine every warrant submitted to a FISA court.

It’s not about President Trump, or shouldn’t be.

I agree, but good luck with that. Everything is about Trump. Everything.

[NOTE: The point Hewitt makes about trust between the FBI and the FISA court also harks back (indirectly) to James Comey’s ranting tweet about which I wrote in this post last Friday. One of the things Comey wrote in that tweet was that the publication of the Nunes memo had “damaged relationship with FISA court.” In my post about it I commented:

…“damaged relationship with the FISA court”—how, and whose relationship? If anything might have “damaged” that relationship, it would have been the alleged actions themselves, if in fact the FISA court was not informed of the extremely pertinent information about the origins of the dossier.

Comey’s tweet shows an interesting state of mind on his part. Remember the old saying, “it’s not the crime, it’s the coverup”? It originated with Watergate, but the idea was that Nixon’s guilt was more seriously involved in the coverup rather than the original act itself. Comey is saying a sort of twisted form of that here—in other words, he’s trying to assert that there was no breach of trust between the FBI and the FISA court as long as the FISA court didn’t know about what the FBI had done to deceive it. Comey places the locus of blame for disrupting that trust with the people who revealed the breach of trust (Nunes and company) rather than those who committed it.

As I said, twisted. It becomes more and more disturbing that this man was once head of the FBI.]

[ADDENDUM: Please see this. It fits right in with the ideas I’m presenting here. The Deep State is a reality and wishes to be autonomous and answerable to no one except itself and those in line with it.]

14 Responses to “A lawyer’s and a judge’s reaction to the Nunes memo”

  1. The Other Gary Says:

    …it’s been reported (by anonymous sources) that in its FISA application re Page, the FBI made some sort of reference to political funding of the Steele dossier.

    So this is our vaunted, super-secret FISA court in action!?? When told that some of the information in the surveillance application was generated by politically-motivated funding, the judge does not think to ask, “Really? What political entity funded this and why? I want to know ALL about this.”

    I see only 3 possible expanations here:
    1) The FISA judge is an idiot and/or too lazy to examine the application carefully;
    2) The FISA judge is politically motivated himself, or
    3) The statement about the source of the funding was buried within the application in an amazingly clever way.

    Any ideas on which of these (or some other) explains the judge’s failure to ask an obvious question?

  2. Hmonrdick Says:

    Might this be why Judge Rudolph Contreras recused himself immediately after taking General Flynn’s guilty plea?

  3. Ann Says:

    Trey Gowdy, who has actually seen the FISA applications, on Face the Nation this past Sunday:

    “I mean, look at just the disclosure of who paid for it. They could have easily said it was the DNC and–and Hillary Clinton. That would have been really easy. I read the footnote. I– I know exactly what the footnote says. It took longer to explain it the way they did, than if they just come right out and said, ‘Hillary Clinton for America and DNC paid for it.’ But they didn’t do that.”

    It would really be helpful if we could see that footnote.

  4. JFM Says:

    Two possibilities:

    1)The FBI put one over on the FISA court in obtaining the warrant.

    2)The FISA court colluded with the FBI in obtaining the warrant.

    We won’t know if it’s one or the other until we see the court transcripts and the application for the warrant.

  5. J.J. Says:

    Long ago in a different world, I worked for a Naval Officer who quite regularly reminded his troops that we all worked for the civilians outside the base. Since many of these civilians regularly spit on us and called us names, we weren’t happy that we worked for them. Our Skipper kept us in line by helping us concentrate on getting our jobs done, not hating and wanting to retaliate against the civilians that showed us little respect. Hmm, seems there is a lesson there.

    Today government bureaucracies don’t have leaders who regularly remind them of who they work for. Every government office in D.C. should have a sign proclaiming: “We work for the citizens of the USA and are held accountable by their representatives.” Then the leadership should follow that motto.

  6. carl in atlanta Says:

    I’ll reiterate my comment and questions from 2/2/2018:

    February 2nd, 2018 at 4:12 pm

    I keep thinking about Judge Rudolph Contreras (who sits on the DC Circuit Court as well as the FISA Court), who recused himself in the Flynn case back on 12/7/2017 (only after General Flynn made his plea deal). I’m wondering whether he was the same FISA Court Judge who approved the FISA warrant (and the several renewals of that warrant) on Carter Page. Does anyone know?

    I ran a Google search, “Who is the FISA Court judge who issued the FISA warrants on Carter Page?” and got no helpful results (try it for yourself). The reason I ask is this: I’ve seen a lot of judges over the past 35+ years and have never yet known of (or even heard of) one who tolerates being lied to or misled. If the FISA Court was in fact lied to (either actively or by omission), why hasn’t someone been held in contempt? What’s actually going on at the FISA Court? What facts or circumstances led to Judge Contreras’ decision to recuse himself in the Flynn case? I guess we’ll never know, but damn, this whole thing is giving off a bad Star Chamber-y odor, no?

  7. Geoffrey Britain Says:

    “WASHINGTON (AP) — Top intelligence and law enforcement officials warn that last week’s release of a congressional memo alleging FBI surveillance abuse could have wide-ranging repercussions: Spy agencies could start sharing less information with Congress, weakening oversight.”

    Contempt of Congress followed by Trump firing them. Repeat and rinse as needed until the rot is expunged.

  8. Yancey Ward Says:

    There is no innocent explanation for not disclosing explicitly who funded the dossier- no innocent explanation at all. The only reason one would omit that explicit detail is because one thinks it will make it less likely the judge will approve the warrant.

  9. Ymar Sakar Says:

    Now that the US has elected Trum, can they make him do as they wish?

    That’s not how it works. That’s bad and good for patriots and Republicans.

    Good, in the sense that the Left can’t get to him easily with the usual tricks. Bad in the sense that while many of us, me included, would have told him to purge DC of all Demoncrats, no matter how useful, Trum decided to do otherwise. Perhaps Bannon played a role in that as well.

    Now you get what you get. The MSM doesn’t hold Trum accountable. The public does not. And neither does the FBI heads Trum thought he could bribe or pull over to his side as loyal bureaucrats.

    Only the Deep State holds America’s power accountable. Only the Deep State can fight the factions in the Deep State. The DS chose Trum to do so and the leaks proceed as planned. Selected, not elected.

  10. AesopFan Says:

    “We’re the Priesthood of Intelligence. No one gets to contradict us, critique us, or even us orders.

    Who knows, maybe that’s been their goal all along. Or maybe they were just operating 99% under that mindset and now, peeved by someone challenging their 99% lack of accountability, are threatening to unconstitutionally arrogate to themselves the status of being fourth, fifth, and sixth co-equal branches of government, that are really better than the other three branches, because they’re entirely untainted by that “democratic election” and “consent of the governed” and “public accountability” baggage.”

    Gee, Ace, tell us how you really feel!
    A salutary example would be Reagan and the Air Traffic controllers.
    If they don’t play by the rules, fire them all.
    The States can take care of their own legal matters and investigations, and be deputized for any Federal offenses (without the FBI and DOJ padding the rolls with cases, maybe there would be fewer to investigate).
    Besides, EPA & DOE (among others) have their own SWAT teams.
    Who needs the FBI anymore?

    (Only half-facetiously submitted, because the other half is very, very angry.)

  11. AesopFan Says:

    Geoffrey Britain Says:
    February 6th, 2018 at 7:45 pm
    … could have wide-ranging repercussions:
    * * *
    King Croesus of Lydia had some concerns about his intent to make war on the Persians.
    The oracles to whom he sent his questions included those at Delphi and Thebes. Both oracles gave the same response, that if Croesus made war on the Persians, he would destroy a mighty empire.
    However, it was his empire, not that of the Persians, that was defeated, fulfilling the prophecy but not his interpretation of it.

  12. AesopFan Says:

    J.J. Says:
    February 6th, 2018 at 6:17 pm
    … Every government office in D.C. should have a sign proclaiming: “We work for the citizens of the USA and are held accountable by their representatives.” Then the leadership should follow that motto.
    * * *
    https://www.documentcloud.org/documents/4357880-Mulvaney-Memo.html

    “From: Mulvaney, Mick (CFPB)
    Date: January 23, 2018 at 12:59:57 PM CST
    To: _DL_CFPB_AllHands
    Subject: To Everybody from the Acting Director

    We are government employees. We don’t just work for the government, we work for the people. And
    that means everyone:
    those who use credit cards, and those who provide those cards; those who take
    loans, and those who make them; those who buy cars, and those who sell them. All of those people
    are part of what makes this country great. And all of them deserve to be treated fairly by their
    government. There is a reason that Lady Justice wears a blindfold and carries a balance, along with her
    sword.
    It is not appropriate for any government entity to “push the envelope” when it comes into conflict with
    our citizens. The damage that we can do to people could linger for years and cost them their jobs, their
    savings, and their homes. If the CFPB loses a court case because we “pushed too hard,” we simply move
    on to the next matter. But where do those that we have charged go to get their time, their money, or
    their good names back? If a company closes its doors under the weight of a multi-year Civil Investigative
    Demand, you and I will still have jobs at CFPB. But what about the workers who are laid off as a
    result? Where do they go the next morning?

    Let me be clear: there will absolutely be times when circumstances dictate that we take dramatic action
    to protect consumers. And at those appropriate times, I expect us to be vigorous in our enforcement of
    the law. But bringing the full weight of the federal government down on the necks of the people we
    serve should be something that we do only reluctantly, and only when all other attempts at resolution
    have failed. It should be the most final of last resorts
    .”

    MAGA

  13. AesopFan Says:

    Another zinger from Ace today, quoting a post that has even more interesting things than show up in this excerpt:
    http://ace.mu.nu/archives/373722.php

    “On Friday, a former FBI agent wrote an eye-catching opinion piece in the New York Times, claiming that he had retired from the Bureau because it had received unfair “political attacks” from Republicans in Congress.

    Other than its entirely disingenuous premise (alleging Republicans are attacking the FBI as a whole, rather than investigating alleged misdeads [sic, but I kinda like it] under leaders James Comey and Andrew McCabe), the piece leaves out important information.

    Nowhere in the opinion article does Campbell reveal the fact that he was James Come’’s special assistant.
    Campbell presents himself as someone who is unattached to the current political situation, leaving out the fact that he has a huge vested interest in defending Comey. [apparently, he’s already “redacted” his media profiles to eliminate that information]

    But it gets worse. Following the op-ed, John Cardillo, a host for The Rebel and former law enforcement officer, claimed that Campbell also left out the fact that he had already accepted an offer to become a CNN analyst.”

  14. J.J. Says:

    AesopFan, thanks for the memo from Mulvaney. Good stuff. I hope it begins to catch on with other bureaucrats. Such leaders are rare, unfortunately.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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