Third paragraph, last sentence: he missed an “of”. 
“on my review the Nunes memo” should have been “on my review of the Nunes memo”.
Other than that, I thought it was a fantastic rebuttal.
LOL, ok, that slayed me. Still laughing.
I agree – terrific rebuttal. And not even the official one yet.
One interesting part of the Nunes memo is that its last sentence talks about some things that are not classified and hence provide a window into how the memo likely spun evidence that we cannot directly see:
However, the Wall Street Journal reporting has pointed out that in context the most plausible explanation for this discussion of an insurance policy is to argue back against the notion that “We don’t have to worry about whether Trump is colluding with the Russians because he is not going to get elected anyway.” So, it is not a nefarious plot to prevent Trump’s election but simply a statement that they shouldn’t use the fact that he seems to be behind as a reason not to be concerned about the evidence that he is involved in something bad.
If you are going to write a memo that mainly talks about classified material and expect it to have any credibility in your interpretation of said material, you had better make your discussion of material that is out there for anybody to interpret unimpeachably accurate. The Nunes memo fails that test and hence can reasonably dismissed as the heap of partisan garbage that it is.
[The irony of this whole thing is that Trump would likely not be President except for the FBI’s dual decisions both to bring up the Clinton e-mails in the last couple weeks before the election and not to announce their investigation of Trump…and I don’t honestly think these decisions were made out of any bias in favor of Trump but simply because the Trump victory seemed sufficiently improbable that they were more concerned about how things would look when info came out after Hillary had gotten elected and didn’t really worry about the other scenario.]
I would if they were my own. But they’re all from the Twitter hashtag #YoMemoJokes . And I suspect all the late-night comedians saw that hashtag even before I did.
Also one instance of “Christopher Steel” near the bottom of the penultimate page.
You know that fifth column Andrew Sullivan tried to warn us about after 9/11? Nadler makes the case that it’s the Republican Party:
I don’t agree. Franks v. Delaware sets out a standard to quash a search warrant or exclude its fruits, right?
Can you explain how you applied the Franks standard to these facts? Did you use Franks to reach your conclusion?
(To be clear, I don’t agree with the apparent analytical process; I am not offering an opinion on the ultimate viability of the FISA warrant).
Would you mind explaining what the “Franks standard” is?
Clearly so. I mean, you can’t read any discussion on the memo and the FISA warrant without at least one mention of the all-important case law. Hell, if I had a nickel for every time I’ve read the words "Franks v. Delaware " n the past few weeks, I could buy a stick of gum.
Pardon me for beating a dead horse but I am still seeking clarification on how the contents of the application for the FISA warrants became known to the Gang of 8 (or whoever). Does the FISA specifically grant review of applications by certain elected officials? I would seem counterproductive to allow potential targets or their political associates access to investigative material during an ongoing investigation. The time to dispute the veracity of a warrant application is after charges have been brought. You want the evidence tossed? Make your case at a suppression hearing. My experience has all been with traditional criminal investigations and not foreign counterintelligence so maybe the rules are completely different.
As to the idea that FISA warrant applications are trivially easy to get - perhaps there is a lower standard for what is considered probable cause since the targets are, generally, not U.S. citizens. That said, I never had a warrant application rejected. Its not because they are easy to get. Its because I never sought a warrant without far more than the bare minimum in the way of probable cause. If the PC wasn’t overwhelming, the prosecuting attorney would always make me get more. It seemed they wanted very close to “proof beyond a reasonable doubt”. Very annoying but they didn’t want to risk losing evidence after a ton of money and time had been dedicated to the investigation. And no elected official had any right to see what was in that application until it was released in discovery.
It sure did. On the basis that the underlying statements made supporting the search warrant weren’t true, and the trial judge has a duty to determine the veracity (truth) of those statements if asked to do so by a defendant.
As you are aware, IANAL and have never claimed to be. I wasn’t drawing a legal conclusion with my previous comments – as I think was perfectly apparent – and did not mindfully rely on Franks when I made them. Why would I? We’re having an informal debate on a message board. I relied only on my experience with judges in general.
But I don’t see where Franks is in conflict with what I said. I believe it supports my statement.
The case as I understand it is primarily rested on the Fourth Amendment, which prohibits unreasonable search and seizure. A trial court denied Defendant Franks’ motion to suppress evidence based on possible false statements contained in the underlying search warrant and allowed the evidence seized in the search to be admitted at trial. The trial judge also denied Defendant’s oral motion to call specific law enforcement witnesses for the purpose of determining their veracity in the statements they made as the search warrant’s affiants. The trial court again denied Defendant’s motion for judgment of acquittal and/or new trial on the argument, among others, made by the State that the trial court had no duty to look beyond the four corners of the search warrant itself in determining admissibility of its fuits. On appeal, the Supreme Court of Delaware affirmed the trial court’s rulings.
The US Supreme Court disagreed.
The holding in Franks: “Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment, as incorporated in the Fourteenth Amendment,*** requires that a hearing be held at the defendant’s request. The trial court here therefore erred in refusing to examine the adequacy of petitioner’s proffer of misrepresentation in the warrant affidavit.***” (Emphasis mine.)
Meaning, the facts are the facts. If there is evidence presented that may show they are not the facts, or that underlying statements were made in bad faith, then it is wrong for the trial court to ignore this in determining admissibility of any evidence procured from such a search warrant – and, if asked, even has a duty to go behind the warrant and determine if the statements made in the supporting affidavits are true.
Isn’t this the classic “fruit of the poison tree” standard? And doesn’t Franks basically say that, before applying the law, determining the actual facts by a judge is pretty much his/her entire job, even if it means going beyond what is superficially presented as true?
Or do you interpret Franks in some other way? You said you disagreed with the apparent analytical process, but I don’t really understand why.
Section 108 of the Foriegn Intelligence Surveillance Act of 1978 required semiannual reports to the intelligence committees on “all electronic surveillance under this title,” and also stated that “Nothing in this title shall be deemed to limit the authority and responsibility of the appropriate committees of each House of Congress to obtain such information as they may need to carry out their respective functions and duties.”
It appears that practice from 1978 to roughly 1990 was that the Executive Branch would share detailed information about each warrant with those committees. Whether that included the text of each application, I don’t know.
Around 1990, that provision of law was amended to direct summaries of activities under FISA, but the amendments did not touch the part about information needed to carry out duties.
It strikes me as very plausible that detailed information about each warrant has been routinely shared for decades, though I obviously don’t know the precise form in which the detailed information was shared. In a major investigation like the Russian election meddling, it doesn’t strike me as unbelievable that the text of the applications were shared, and in this case, it absolutely seems that they were.
And now the right wingers are attacking the FISA judges. I just saw a meme going after one of the judges, with the final note, “And guess who appointed him? Barack Hussein Obama.”
Of the current FISC judges:
1 appointed by Reagan
1 appointed by Bush Sr
2 appointed by Clinton
5 appointed by Bush Jr.
2 appointed by Obama
But keep in mind that is who appointed them to the bench. All of them are regular ol’ Federal judges from around the country, who are selected by Chief Justice Roberts to serve on the FISC for seven years. In this case, all current judges were selected by Roberts for service on this special court.
Fuckin’ Roberts, man. First Obamacare, now a betrayal of Carter Page, PhD, simply because of his loyal service to the Motherland.
Just stumbled across this article: link. The story is from March 9, 2017.
So it seems plausible that Trump’s “I’ve been wiretappped!!” tweet directly led to the DOJ producing the FISA application that related to Carter Page, PhD.
and equally likely that he already knew about the Page warrant from intelligence briefings given as President-elect and President.
Is that after he put the finishing touches on his paper on quantum mechanics as a Hegelian construct?
The sense I’m getting is that the FBI did disclose that the dossier originated in a political context, but didn’t specify that it was opposition research funded by the Clinton campaign specifically.
So I guess it would depend on context. Possibly this will be clearer when the Democratic counter-memo is released.
In other news, Grassley and Graham have released (a redacted version of) their letter to the DOJ & FBI about Steele.
The main gist of things seems to be (in line with previous reporting) that Steele lied to the FBI when he said he had not attempted to disseminate his dossier via the media, and that this was revealed when Steele testified in his London lawsuit.
I think you misspelled content.
All of which serves only to distract from “What did the President know and when did he know it?”
Could you remind me of when Steele told the FBI he hadn’t tried to disseminate his dossier via the media, and what he specifically said?
It’s as likely as not this started as a Russian cybercampaign. They plant all kinds of stuff in social media for Trumpists to pick up.