james e coleman on the nunes memo

A Guest Blog By Distinguished Professor James E Coleman At Duke University Law School

I have not followed the story closely enough to have any authoritative view on any of this, but I am not prepared to accept what either Rowley or Blumenthal claim on the video. You cannot critique the affidavit filed in the FISA court based solely on the Nunes memo. Nor can you judge the significance of the DOJ official’s conflict without knowing what was in the memo supporting the application for the warrant. In both cases, the two commentators assume that the information that would make the warrant inappropriate was missing from the application. For example, what part of the Steele dossier was used in the application. We don’t know, nor can we find out unless the application and supporting affidavit are disclosed. Since that won’t happen, people can make whatever self-serving claim they want, knowing that we are unlikely ever to have the evidence to judge their claim. 

Blumenthal says several times that the Steele dossier has been discredited. That’s not accurate. Some of it has not been corroborated. That is not the same as being discredited. Since we don’t know which parts were used by the FBI to obtain the warrant, we don’t know whether it has been discredited, not corroborated, or independently corroborated. My guess is that the FISA judge did not sign the warrant and then renew it three times based on uncorroborated information.

Democrats on the House Intelligence Committee claim the application disclosed to the Court the political origin of the dossier. Blumenthal focuses on the fact that the Clinton and DNC provided funding to assemble the dossier. In fact, the Republicans initiated the research. It was picked up by the Clinton campaign after Trump became the nominee. So, if we are going to be accurate, we need to parse the dossier into the pieces that were assembled before Clinton and the DNC took over the research and what was added after they began to support it.

In the end, the question is whether there was a factual basis to obtain a warrant on the ground that Carter Page was knowingly collaborating with a foreign government. The answer to that seems to be yes. Not only did the FBI get the warrant in the first place, it got the warrant renewed several times. The renewals had to be based on proof that the warrants were yielding evidence. Again, blaming Rosenstein for signing the applications for the renewals, without disclosing the basis on which the renewals were sought is disingenuous. It is certain that the renewals were not based solely on the Steele dossier. But as any lawyer knows, the source on information on which criminal wiretaps are obtained are often tainted, often by the criminal history of the source. Nevertheless, the job of the court is to determine if the information is credible, not whether its source was a Boy Scout.

Bottom line: no one can make a credible assessment of whether the FISA court was misled (for political reasons? To discredit Donald Trump? Before the November 2016 election?) without seeing the entire FISA application. Anyone who says differently is ignorant of how the FISA process and top federal judges operate.  Those who are familiar with both are calling the Nunes memo misleading. Given the memo’s goal, I agree with that conclusion. Moreover, my instinct is that this is like the Chaney/Libby play through The NY Times that Rowley mentions: I believe the Trump people initiated this process and now are waving the memo that they generated and claiming to be shocked that there is gambling in Casablanca. The only danger in this is if Trump uses the memo to fire Rosenstein. I think that alone would be an obstruction of justice engineered by Trump and Congressional Republicans. As Bill Greider might say, “who will tell the people?”

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