On the Nunes and Schiff Memos, Whom To Believe? Wrong Question

What is the right question, you ask? Simple: When can we see the evidence and judge for ourselves? In hashtag parlance, #ReleaseTheEvidence.

There were a couple of major assertions made in the Nunes memo, and the first was…

The application does not mention Steele was ultimately working on behalf of—and paid by—the DNC and Clinton campaign, or that the FBI had separately authorized payment to Steele for the same information.

Not that it really matters in case law, but the assertion is in dispute:

The memo is critical of Mr. Steele and notes that prosecutors in their application for the warrant didn’t explicitly state that he was working for a firm funded by Democrats. But the FISA application did disclose Mr. Steele was being paid by a law firm working for a major political party, according to a person familiar with the matter. Redacting the names of U.S. people or organizations who aren’t the subject of an investigation is a common practice in government legal filings, designed to protect privacy.

And apparently it’s even in dispute by Nunes himself. Here’s the second major assertion.

The “dossier” compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application.

Coupled with this.

Furthermore, Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.

These assertions are also disputed. From the above-linked WSJ article.

Officials in Congress and the Justice Department familiar with Mr. McCabe’s testimony said the memo mischaracterized what he told lawmakers. He was asked what percentage of information in the FISA application was provided by Mr. Steele, and he demurred, saying the FBI didn’t evaluate such applications in such a way. Mr. McCabe was asked if it might have accounted for half of the warrant application, and he said he didn’t know, one person familiar with the matter said.

The Wall Street Journal is owned by Rupert Murdoch, who also owns FoxNews and signs Sean Hannity’s paychecks.

Yesterday, House Intelligence Committee approved the release of the Schiff rebuttal memo, and now it’s up to Trump to release the document to the public. Since Trump, through his mouthpiece Sarah Sanders, supports full transparency (and the vice president said, “I’ve always believed in the public’s right to know”), I expect that the president will also approve its release. If Trump doesn’t, then he will rightfully be called a hypocrite.

And let’s say that the Schiff rebuttal memo is splashed across the media this Friday, so what. Like with the Nunes memo, it won’t contain the evidence that backs up its assertions. If we want the truth (and as Mr. French said, the truth requires greater transparency), then we should see not only the FISA warrant application, but McCabe’s testimony from last December. #ReleaseTheEvidence.

A word about the FISA warrant application. I’m sure the FBI and the FISA court would be reticent about its release for national security reasons, but an appropriately redacted version would show the American people the amount of evidence it delivers to the court to make its case to surveil. I suspect that it would provide a level of assurance to us that the FBI is doing something right. But Trump doesn’t want that, doesn’t he? Devin Nunes opened this can of worms, and it won’t be over until it all comes out.