NYT to FISA Court: Give us the material the Memo is based on

Allahpundit Posted at 6:01 pm on February 05, 2018

Yes, please, give it to them. This has been the obvious, necessary move since #ReleaseTheMemo first got traction online. Between the Nunes memo and Adam Schiff’s forthcoming response, we’re not going to know anything for sure until we see the material the feds submitted to the court.

Redact as necessary. Just end the gaslighting from both sides.

The motion is unusual. No such wiretapping application materials apparently have become public since Congress first enacted the Foreign Intelligence Surveillance Act in 1978…

But President Trump lowered the shield of secrecy surrounding such materials on Friday by declassifying the Republican memo about Mr. Page, after finding that the public interest in disclosing its contents outweighed any need to protect the information. Because Mr. Trump did so, the Times argues, there is no longer a justification “for the Page warrant orders and application materials to be withheld in their entirety,” and “disclosure would serve the public interest.”…

“Given the overwhelming public interest in assessing the accuracy of the Nunes memorandum and knowing the actual basis for the Page surveillance orders,” the Times’ motion says, the court should direct the publication of its orders and the application materials “with only such limited redactions as may be essential to preserve information that remains properly classified notwithstanding the declassification and dissemination of the Nunes memorandum.”

I won’t pretend to know how a court might rule on that but you can understand the logic of the argument. There’s now a pressing political controversy over what the FISA Court did and didn’t know about the Steele dossier when it approved surveillance of Page. The president himself is involved and is using the Nunes Memo as proof that the Russiagate investigation is a witch hunt cooked up by political enemies and abetted by a Justice Department that aimed to hobble him politically. If he’s right, the public should have know that for certain. It’s hard to think of something that’s of greater public interest than DOJ corruption. If he and Nunes are blowing smoke, the public should know that too. It’d be a civic disaster if the president was allowed to wreck public faith in the Justice Department on false pretenses, when evidence of what really happened in the FISA Court is readily available. Under ordinary circumstances a court wouldn’t release a FISA application just to satisfy the media’s curiosity. But once the president himself is telling a story about what’s in the application, the public needs to know if his story is true or false.

If the courts’ regard for Trump’s travel ban is any indicator, they might be receptive to the Times’s argument simply because the agree that his behavior is outside the bounds of standard “presidential norms” and that releasing the underlying intel might teach him a hard lesson about not playing politics with declassification in the future. The Memo you declassify today may lead to a dam-break of things you wouldn’t necessarily want declassified later in the name of correcting disputed facts. (I wonder if a judge might be even more receptive to the NYT’s request if Trump decides that Adam Schiff’s counter-memo needs heavy redaction or shouldn’t be declassified at all due to sensitive intelligence it contains. Would a judge let the president play partisan games by circulating one party’s spin on a FISA application while suppressing the other’s?) Trump would probably also say that we can’t trust the Failing New York Times to report on the information accurately if it’s released to them, but that’s ultimately just an argument for POTUS declassifying the application himself and releasing it to the general public. A precedent of each party developing a highly contentious take on intelligence presented during a ferociously politicized investigation has already been set; might as well take the next logical step and try to settle the debate by releasing the underlying material too.

By the way, Trey Gowdy received most of the media’s attention yesterday for arguing, contra Trump, that the the Memo does nothing to undermine the broader Russiagate investigation. But he wasn’t the only Republican congressman to take that line on the Sunday shows. Other GOPers on the House Intel Committee were surprisingly united in their belief that Mueller’s probe is legitimate even if the FISA process with respect to Carter Page was not:

“DOJ and the FBI should continue doing their job,” Rep. Will Hurd (R-Texas) said on ABC’s “This Week.”

He added that he didn’t view the memo as an attack on Robert Mueller, the special counsel who heads the Russia probe, or as “an attack on the men and women in the FBI,”

Rep. Brad Wenstrup (R-Ohio), called the memo “a separate issue” from the investigation. “I don’t think it really has anything to do with that,” he said on CNN’s “State of the Union.”

The memo “doesn’t end [the need for the Mueller investigation] at all,” Rep. Chris Stewart (R-Utah) said on “Fox News Sunday.” “I think it would be a mistake for anyone to suggest that the special counsel shouldn’t complete his work.”

It’s bold of them to counter Trump by undercutting his preferred narrative, that the Memo proves the entire investigation is illegitimate. One question, though: Since it was obvious from the start that that’s what he and Devin Nunes planned to use the Memo to argue, why did they sign off on its release? Logically you can treat the Memo and Russiagate writ large as two distinct and separate matters but politically you can’t at all. These guys are politicians; they had to know that Mueller and Rosenstein were going to get clubbed by MAGA Nation and its media favorites once the Memo was released. It feels disingenuous for Gowdy et al. to now be spraying water from a garden hose on a forest fire that the Memo helped set.

Here’s Joe Scarborough this morning insisting that the GOP has become the party of Wikileaks and Edward Snowden, which is unfair but not as unfair as it should be.