Chris Wray, Rod Rosenstein beg White House: Don't #ReleaseTheMemo

Are they serious? After all the hype of the last few weeks, they want to cancel the show before the big reveal?

Americans deserve to know what’s in Al Capone’s vault. There’s no way President Geraldo will deny us that opportunity.

FBI Director Christopher Wray told the White House he opposes the release of a controversial, classified GOP memo alleging bias at the FBI and Justice Department because it contains inaccurate information and paints a false narrative, according to a person familiar with the matter…

Three House lawmakers who have read the document said it claims that FBI officials didn’t provide all the relevant facts in requests made to a Foreign Intelligence Surveillance Act court to obtain a warrant or warrants on Carter Page, a Trump campaign associate and former investment banker in Moscow.

Wray’s in a bad spot, caught between the president who appointed him and the Bureau he’s trying to lead. If he went along with Trump’s decision to release the Nunes document without objecting, who knows what that would have done to the FBI rank-and-file’s confidence in him.

The DOJ is also against #ReleasingTheMemo:

Shortly before the House Intelligence Committee voted to make the document public, Deputy Attorney General Rod J. Rosenstein warned Kelly that the four-page memo prepared by House Republicans could jeopardize classified information and implored the president to reconsider his support for making it public, those people said. Rosenstein was joined in the meeting at the White House by FBI Director Christopher A. Wray.

Rosenstein, who is supervising special counsel Robert S. Mueller III’s investigation into Russia’s interference in the 2016 election, said the Department of Justice was not convinced the memo accurately describes its investigative practices. He said making the document public could set a dangerous precedent, according to a person familiar with the discussion.

Kelly assured them that the National Security Council and the White House counsel will review the memo to make sure nothing sensitive is included the release. In fact, here’s what he told Fox News this morning:

“Everything”? Including the original FISA application to surveil Page, which will prove one way or another if Nunes’s complaints are justified or if they’re mostly hype? I don’t think Kelly really means “everything.”

Among assorted other bigwigs on Capitol Hill who are opposed to the memo’s release are centrist Democrat Joe Manchin, Republican John Kennedy, and rage-crying 2020 contender Cory Booker. Interestingly, although not overtly opposed to the Nunes memo’s release, various members of the Senate Intelligence Committee are resisting the chance to hop on the bandwagon and support it. Normally you’d expect Republicans in the upper chamber to line up with their House counterparts on a matter that’s galvanized the base but Richard Burr et al. have never seemed to have much use for Nunes, apparently viewing him and the House Intel panel as overly politicized. “I don’t think that anybody sees similarities between how we proceed and how they have,” sniffed Burr when asked about the memo. I’m curious to see if any leaks start dribbling out from his committee to counter the narrative put forth in the Nunes document.

Trump, however, wants the memo out and isn’t being shy about it, reportedly making it “plain” to Kelly that he supports its release. He has a few days left to decide whether to block it on national security grounds, meaning that if he simply stands by and does nothing it’ll become public when the clock runs out. But he’s so eager to see it published, according to CNN, that the White House will probably formally approve its release “because the President [is] eager to play a role.” In fact, when Devin Nunes was asked at Monday’s House Intel meeting if he had been working with the White House to prepare the memo, he reportedly refused to answer. (Which wouldn’t be the first time Nunes, a former Trump transition official, had worked hand-in-glove with the executive to try to expose alleged intelligence abuses.) Did Trump’s team help write the memo, or at least point Nunes’s staffers in the directions they wanted them to go? Trump’s role may be bigger in this than just rubber-stamping the release.

There’ll be endless bickering once the memo’s out about probable cause, what the FISA judge did and didn’t know about the Steele dossier, and how much, exactly, the dossier influenced the FBI’s interest in Carter Page. But bear this in mind as the rhetorical grenades are tossed: FISA Court approval to surveil an American on suspicion of being a foreign agent isn’t a high bar to begin with and it really wouldn’t have been a high bar in the case of Page, someone whom we now know was approached by Russian intelligence as far back as 2013 in hopes of recruiting him. To some extent, in order to believe that the Nunes memo has exposed serious abuses, you’ll be forced to also believe that it was ludicrous to believe that Carter Page, of all people, needed to be watched more closely by the feds. Even the civil libertarians at Reason Magazine are gently reminding readers this morning that, for good or ill, it wouldn’t have been difficult for the feds to get approval to tail him:

The New York Times says the FBI had to show Page was “probably an agent of a foreign power.” But if probably means “more likely than not” (i.e., supported by “a preponderance of the evidence”), that is incorrect. Probable cause, which the Supreme Court has described as “a fair probability,” is supposed to be stronger than a hunch or a reasonable suspicion, but it is weaker than a preponderance of the evidence, the standard that applies to verdicts in civil cases. To put it another way, the FBI could get a warrant for an American who was probably not a foreign agent.

How hard is it to show the sort of probable cause the FBI needs under FISA? Not very, judging by the bureau’s track record before FISC judges, who almost never reject its warrant applications. The FBI’s defenders argue that its success rate reflects careful preparation, which requires approval by senior Justice Department officials and often includes consulting with the court before filing. But in the end, Syracuse University law professor William Banks says, the government’s burden is not very demanding. “Carter Page was doing business in Russia, talking to Russian diplomats who may have been involved in intelligence activities in the United States,” Banks told the Times. “Game over. The standards are incredibly open-ended.”

It’d be an interesting question if it turned out that the Bureau really did have nothing more on page than the Steele dossier. Given how low the evidentiary standards are for surveillance, somewhere between “mere suspicion” and a preponderance of the evidence, would Christopher Steele’s sources suffice to clear the bar of probable cause? But that’s probably not the question we’ll be considering. More likely it’ll be the case that the dossier piqued the FBI’s interest in Page, they went looking for further evidence that he was a foreign agent of Russia’s, and they found something independently. Page, in other words, probably wasn’t a “close call” for FISA purposes. But that’s how Trump and Nunes will need to argue to claim that the entire probe is illicit, that poor Carter Page was unjustly surveilled based on the thinnest of reeds, the mere suspicion of the Steele dossier.

Here’s Cory Booker once again pandering to the left ahead of 2020, insisting that releasing the memo — after it’s been vetted by intelligence pros and with allegations of serious abuse by the DOJ and FBI being made — could be “tantamount to treasonous.”

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Jazz Shaw 7:31 PM on October 02, 2022