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The Memo and the Mueller Probe

Former Attorney General and U.S. District Judge Michael Mukasey has this op-ed in the WSJ with the above title and the subhead "If the investigation arose from partisan opposition research, what specific crime is he looking into?"

The regulation that governs the jurisdiction of the special counsel requires that he be "provided with a specific statement of the matter to be investigated." The letter from Deputy Attorney General Rod Rosenstein appointing Mr. Mueller says he is to "conduct the investigation confirmed by then-Director James Comey before the House Intelligence Committee on March 20, 2017," which covers "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump," and any matters that may arise "directly" from that investigation.

But the investigation then disclosed by Mr. Comey was not a criminal investigation; it was a national-security investigation. Possible Russian meddling in the 2016 election is certainly a worthy subject for a national-security investigation, but "links" or "coordination"--or "collusion," a word that does not appear in the letter of appointment but has been used as a synonym for coordination--does not define or constitute a crime. The information, and misinformation, in the Steele dossier relates to that subject.

If partisan opposition research was used to fuel a national-security investigation that has morphed into a series of criminal investigations, and the special counsel has no tether that identifies a specific crime, or "a specific statement of the matter" he is to investigate, that is at least unsettling. By contrast, the Watergate, Iran-Contra and Whitewater investigations, whatever you think of how they were conducted, identified specific crimes. The public knew what was being investigated.

Here, none of the charges Mr. Mueller has brought thus far involved "coordination" or "collusion" with the Russians. Mike Flynn and George Papadopoulos both pleaded guilty to lying to the FBI, the latter over the timing of conversations with Russians in which he was allegedly offered but never received "dirt" on Mrs. Clinton, including her emails. He also attempted to set up a meeting between the Russians and Mr. Trump, but the campaign blew off that effort. Notably, Mr. Papadopoulos did not plead guilty to participating in any plot that involved "coordination." The Paul Manafort and Rick Gates indictments charge fraud on the government through receipt of and failure to disclose payments from a pro-Russian Ukraine politician.

What to do? I believe that at a minimum, the public should get access to a carefully redacted copy of the FISA application and renewals, so we can see whether officials behaved unlawfully by misleading a court; and Mr. Mueller's mandate should be defined in a way that conforms with the legal standard of his office. Both would go a long way toward assuring that we do more than talk about a "government of laws."

Recently, I have made a practice of turning off comments on any post related to President Trump.  I have neither the time nor the desire to deal with the tendency of some people to treat any mention of him as a green light to spew vitriolic comments which may have little or nothing to do with the topic of the post.  I will leave them on this time, for the time being, as an experiment.

Update:  Andrew Klavan has this article at City Journal.

Scandal is not an exact science. But on a scale of "nothingburger" (Bret Stephens of the New York Times) to "worse than Watergate" (GOP congressman Steve King), the information in the House Intelligence Committee FISA Memo comes in at about a solid seven. It now seems very likely the FBI and Department of Justice deceived a FISA court with an uncorroborated piece of Democrat-funded oppo research in order to obtain a warrant to spy on American citizen Carter Page. If, as seems reasonable to conjecture, the broader target turns out to have been the Donald Trump presidential campaign for which Page had recently worked, the needle on the scandal meter will begin to edge up into the red zone.


Decencyevolves: This isn’t my area of legal specialty, but Lawfareblog does some remarkable work on this subject and I read this with interest:

“[W]hile the memo says that Andrew McCabe testified before the House intelligence committee that the Steele dossier was the motivating factor in seeking the FISA warrant, the Democrats note that the memo does not mention that McCabe also testified of other factors in the decision to seek a FISA application: Russian targeting of Trump campaign adviser George Papadopoulos, Carter Page’s July 2016 trip to Moscow and Russian hacking aimed at the Clinton campaign.

The Wall Street Journal, citing a source who has reviewed the FISA application, reports that the dossier constituted only part of the application. Contradicting the Nunes document’s claims, the source indicated that the FISA application did, in fact, disclose that Steele was paid by a “law firm working for a major political party.”

There’s actually a lot more. But you get the point. The bottom line is that there are multiple reasons to expect that Nunes has not given a full and fair account of the FBI’s FISA process and that his memo is as factually deficient as it accuses the Carter Page warrant application of being . . . .

To the extent that the complaint is that Page’s civil liberties have been violated, the outraged are crying crocodile tears. For one thing, it is not at all clear that Page’s civil liberties were, in fact, violated by the surveillance; the memo does not even purport to argue that the Justice Department lacked probable cause to support its warrant application. It does not suggest that Page was not, after all, an agent of a foreign power. What’s more, the only clear violation of Page’s civil liberties apparent here lies in the disclosure of the memo itself, which named him formally as a surveillance target and announced to the world at large that probable cause had been found to support his surveillance no fewer than four times by the court. Violating Page’s civil liberties is a particularly strange way to complain about conduct that probably did not violate his civil liberties.

To the extent the complaint is that the FBI relied on a biased source in Steele, the FBI relies every day on information from far more dubious characters than former intelligence officers working for political parties. The FBI gets information from narco-traffickers, mobsters and terrorists. Surely it’s not scandalous for it to get information from a Democrat—much less from a former British intelligence officer working for Democrats, even if he expresses dislike of a presidential candidate.

To the extent the complaint is that the bureau was insufficiently candid with the tribunal, that is a potentially more serious matter. But as Orin Kerr argued on Lawfare this week, it is far from clear that the allegation—even if true—would create any kind of legal defect in the warrant . . . .

At the end of the day, the most important aspect of the memo is probably not its contents but the fact that it was written and released at all. Its preparation and public dissemination represent a profound betrayal of the central premise of the intelligence oversight system. That system subjects the intelligence community to detailed congressional oversight, in which the agencies turn over their most sensitive secrets to their overseers in exchange for both a secure environment in which oversight can take place and a promise that overseers will not abuse their access for partisan political purposes. In other words, they receive legitimation when they act in accordance with law and policy. Nunes, the Republican congressional leadership and Trump violated the core of that bargain over the course of the past few weeks. They revealed highly sensitive secrets by way of scoring partisan political points and delegitimizing what appears to have been lawful and appropriate intelligence community activity.

It was a heavy blow to a system that has served this country well for decades, and it is one that will not be forgotten any time soon.”


DE, the post you quote says that the dossier was the motivating factor, which confirms the memo. No one claimed it was the only factor or the only evidence.

If the background information indicates that the FBI did, in fact, disclose the political basis of the information, that would be more substantive, but we don't really know that yet.

I don't see the release as a blow to the system at all, much less a heavy one. It largely confirms matters already widely reported, raising grave concern that the FBI's investigation was tainted by political motives. That taint is the heavier blow, by far.

I will only address two points:

While it is true that the FBI uses information from mobsters, drug traffickers and other dubious characters, it is relied upon only after that source's information has: exhibited no ax to grind; contains an indicia of truth and/or corroborating independent information exists. The Steele dossier passes none of these tests to my knowledge.

The Democrats claims of gloom and doom in the law enforcement community as a result of this disclosure constitutes pomposity of the highest order and is likely detached from any semblance of reality.

Decencyevolves: This would feel like less of a partisan political stunt if the House Intelligence Services Committee had approved the release of the minority report at the same time and if the two had been released together. We will know much more when it is released and analyzed then we know now. I don’t think of Orin Kerr as a left wing partisan and he’s expressed doubts about whether this amounts to much. I think his Lawfareblog article and the one I linked to give strong reasons to doubt both the credibility and importance of the Nunes memo’s conclusions. Do I trust Nunes and his partisan staff more than I trust the FISA Court and the FBI? No.

Trust in the FISA court is not involved here, since the claim is that the FISA court was not given the full information on which to make its decision.

We will have more of a sense of how accurate the memo is and how meaningful the charge of failing to put the Steele memo in full context is is in the context of the full proffer made to the FISA court, provided that the White House makes the minority’s response public. The first warrant apparently produced sufficient information to allow its renewal repeated time before different FISA judges, and Carter bragged about being an advisor to the Kremlin and a Russian agent charged with spying attempted to recruit him long before the warrant, so I don’t quite get why the initial warrant to determine if he was in fact an agent for Russia was so outrageous.


Moreover, Fusion GPS’s funding from Washington Beacon and then by the DNC doesn’t make Steele’s allegation re: Page inaccurate, as Orin Kerr aptly noted:

“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.”


Trey Gowdy also has vigorously downplayed Mukasey’s suggestion that the Nunes memo somehow taints the whole Mueller probe, as Redstate also notes. The post I cited above does an even more thorough job on that point.


Mr. Mukasey is right, the public needs to see the FISA application. That would answer a lot of questions.

I very much look forward to the amicus briefs that CJLF will be filing on behalf of defendants making Franks arguments when prosecutors do exactly this.

“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."

"Mr Steele said he “was desperate that Donald Trump not get elected and was passionate about him not being president”, according to an account by Mr
Ohr quoted in the memo."


That may be who "he was".

"Nunes, the Republican congressional leadership and Trump violated the core of that bargain over the course of the past few weeks. They revealed highly sensitive secrets..."

What secrets?

"Do I trust Nunes and his partisan staff more than I trust the FISA Court and the FBI? No."

~ So you trust that the FISA Court was given accurate and legitimate information by the FBI? Take a look.

Isikoff Stunned That His Carter Page Article Was Used To Justify Spy Warrant
Chuck Ross | Daily Caller | 02/02/2018
Isikoff acknowledged the potential problem with the DOJ and FBI citing his article to support the FISA against Page.
“Obviously the information that I got from Christopher Steele was information the FBI already had,” .. “It’s self-referential,” he said of the article and its reliance on the dossier.
“My story is about the FBI’s own investigation,” he continued.
“So it seems a little odd that they would be citing the Yahoo! News story about the matter that they are investigating themselves based on the same material that had been separately presented to the FBI before I was ever briefed by Christopher Steele.”
[Isiskoff] said on “Skullduggery” that he was aware that Simpson and Steele were working for Democrats, though he did not know it was the [Clinton] campaign and DNC.
The memo says that Ohr passed information from Steele to the Justice Department. He also provided the FBI with information from his wife, who worked as a contractor for Fusion GPS. Ohr also met with Simpson [founder of Fusion GPS] after the election.

This whole thing is basically a sophisticated SWATting operation--call the cops, get them to wiretap someone (and pick up everyone who talks to him).

Fuzzy, you will wait a long time.

Fourth Amendment issues in criminal cases almost invariably arise in the context of a motion to suppress under the fabrication of Mapp v. Ohio. CJLF has never supported a Mapp motion and probably never will (certainly never will as long as I am Legal Director).

We have supported defendants in a few cases, but not on Mapp motions. When the Supreme Court takes a criminal Fourth Amendment case where we agree with the defendant on the substantive question (which has happened more than a few times over the years), we sit the case out.

If the issue arises in a civil case, we will evaluate it under our usual criteria for whether to file an amicus brief.

The FISA Court may have its own opportunity to weigh in on this issue publicly. Benjamin Wittes of Lawfareblog has suggested it do so and I hope it takes him up on it.


If the Court does, I’ll certainly trust its judgment more than that of Sean Hannity or Devin Nunes.

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