FBI: We have grave concerns about "material omissions" in the Nunes memo

What a sh*tshow the next few weeks are going to be. If the FBI feels obliged to respond to the memo publicly, in a test of credibility with the Republicans on the House Intelligence Committee, before it’s even been released then a waterfall of leaks from both sides is on the way. The NYT and WaPo will be publishing daily scoops about the original FISA warrant targeting Carter Page and allegations about federal agents and Republican pols lying shamelessly to cover their asses over various improprieties well into March.

I don’t know how Chris Wray’s going to do his job. Trump will freak out once “his” FBI starts trying to undercut the conclusions in the Nunes memo, especially once the leaks start. He’ll demand that Wray find and fire the leakers and get the Bureau to back off just as he demanded that Jeff Sessions get the DOJ to back off on Russiagate. Wray will *probably* refuse, driving Trump even crazier. The guy he handpicked to replace the disloyal James Comey is also disloyal? Prepare for some zesty early-morning presidential tweets about the “leightweight chocker” heading up the FBI.

But if Wray’s thinking of quitting, he’ll run into the same problem Trump’s other appointees have: If you care about the institution you serve, how do you know if you quit that your replacement won’t be much less ethical than you are? Especially right now, with critics worried that the Nunes memo is a ploy aimed at letting Trump purge DOJ leaders and appoint cronies in their stead. Getting dumped on publicly and privately by the president is practically part of the job description for a Justice Department leadership role nowadays, so Wray can’t claim he didn’t know what he was signing up for. He could embarrass Trump by quitting and earn some parting gratitude from FBI employees for defending their integrity, but in the end that’ll give Trump exactly what he wants — the opportunity to appoint a loyalist. He won’t quit. I think.

As for the legal nuts and bolts of the PR war to come, read this interesting backgrounder from law prof Orin Kerr on one of the central questions presented by the memo. If law enforcement develops a credible lead based on information from a highly biased source — like, say, a paid oppo researcher — is it a problem legally if they fail to disclose that fact to a judge when seeking a warrant? According to Kerr, who looked at the case law, not really:

In #ReleaseTheMemo circles, any possible link between the Steele dosssier 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.

Remember, it’s a low bar for a FISA warrant to begin with, particularly for a “problematic” target like Carter Page. If the Steele dossier was the *only* thing the FISA Court had to go on, maybe the feds shouldn’t have cleared that bar. But if they have Steele plus their own independently developed evidence? This is what the FBI statement is alluding to, I think, when it mentions “material omissions.” Nunes’s memo is going to claim that the Steele dossier was part of the FISA application, which is probably true. But, says the FBI, what about the other parts? This is why we need the underlying intelligence too.

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