Hack Jobs and Rule of Law: What the Nunes' Memo Threatens

The Nunes-Republican memo on the Trump campaign Russian investigation is a political hack job.
    If its purpose was to expose flaws in the investigation it failed.  But if its aim was to provide cover for firing special prosecutor Mueller and sowing more partisan alternative facts, then it might have succeeded.  But the real danger with the memo is actually deeper–it is about the rule of law and the independence of the Justice Department to do its job, including investigating the president of the United States.

The Nunes-Republican Thesis
Much to-do was made in the anticipation and release of the Nunes memo. Written by the House GOP and authorized for release by Trump, the basic argument boils down to saying two things.  First, the original FISA (Foreign Intelligence Surveillance Act) Court warrant to follow Carter Page (a volunteer with the Trump campaign) was flawed because it was based on a dossier by Christopher Steele, a former British spy who confesses to have wanted Hillary Clinton to win, that this information was also used as opposition research by Clinton, and the court was not told of this bias.  Second, the FBI and Justice Department was biased against Trump.

The Memo’s Alternative Facts
There are many problems with both of these claims, both factually and legally.  Factually among the most significant, Carter Page was under inquiry about his Russian connections even before the Steele dossier.  Second, not all the material in the Steele dossier was flawed or biased and instead, some had been independently corroborated.  Third, as the Washington Post reports, the FISA Court did know of the Steele-Clinton connection.  Fourth, there was independent evidence beyond the Steele dossier used to support the warrant.

Legal Flaws in the Memo
Legally, there are also many flaws.  While in general one should be concerned about the integrity and respect for individual rights involving the  closed FISA court proceedings, this is the law of the land that Congress created to address national security concerns.  The basic process  here is the same used in all other proceedings so to criticize it in the Page-Trump case is to indict the entire process.  Second, assuming factually all the Nunes’ memo alleges is true,  none of that legally renders the warrant invalid.  Witness bias in and of itself is no reason to discount evidence or testimony.
For example, I do not like the person who robbed me but the court is not going to reject my statements when I testify against him in court.  Second, while tainted evidence may not be used in court to prove the guilt of a person, the courts do allow tainted evidence for warrant and witness impeachment purposes.  There are also many other warrant exceptions.  The point being is that even if the original testimony to secure the warrant was flawed, the law does not say that everything that flows from the original poisoned fruit is also tainted.  Lastly, even if there was some tainted evidence in the original warrant, FISA rules require warrant reviews every 90 days and such a review would have provided checks in investigation (not to mention the fact that new evidence obtained in the investigation would then have provided new support for the warrant).
In the end, the Nunes-GOP memo comes down to saying that everyone is biased against Trump and therefore that bias outweighs any real evidence that there was Trump campaign collusion with Russians n the 2016 elections.  How ironic.  For how many years have the law and order Republicans  complained that technicalities in warrants let criminals go free?  They have long invoked the old adage first stated by Justice Cardozo in an attack on Fourth Amendment Exclusionary rule: “The constable blunders and the criminal goes free,” but now seem to embrace its logic.

But Does it Matter?
If you head is spinning with names, facts, accusations, and what not, then the memo achieved its purpose in sowing doubt. The Nunes memo was meant to cast doubt on the investigation, making it look like a partisan job.  The Democratic Congressional memo will reinforce that image.  For the vast majority of the public, the GOP memo means nothing (especially releasing it on Super Bowl weekend after a stock market collapse) because no one is paying attention to this insider baseball game.  But  this memo is aimed at two audiences: First, it is a very small general public of swing voters who may decide the outcome of the 2018 elections.

The Real Issue–Rule of Law
Second, it is set up to provide cover with the national Fox news of the world so that they can help Trump discredit the FBI and Justice Department investigations. This is the real issue.
Dating back to Watergate when a special independent prosecutor brought down the Nixon administration, a rallying cry of conservatives have been for what they call a “unitary executive.”  Taking language from Alexander Hamilton’s Federalist Paper number 70 (“The ingredients which constitute energy in the Executive are, first, unity”), they argue that the presidency comprises the entire executive branch over which the president has complete control.   Beyond the obvious conflating the presidency with a corporate CEO, such a view ignores history such as the Pendleton Act and civil service reform as an effort to depoliticize the executive branch.  It ignores the New Deal constitutional revolution, the introduction of the Administrative Procedures Act, and the concepts of checks and balances as means to mitigate abuses of power.
The Nunes memo is an attack against all this. It challenges the independence of FBI and the Justice Department to do its job.  It politicizes these agencies much in the same way Trump did by asking key members in their leadership whether they voted for him.  This memo is really about the integrity of rule of law, of the independence of law enforcement to do its job.  This is the real issue and one hopes that the hack job of the memo is revealed for what it is.

The Clinton E-Mails: The Political versus the Legal Issues: Why she is not a crook

FBI Director Comey’s letter to Congress regarding Hillary Clinton’s emails is a political but not a

legal big deal.  While its political impact is already being seen and its final impact is potentially significant, legally what Comey said and what is likely to come of it is no big deal.  This of course raises the question, why did he do it and what impact will it have?

First why did Comey do it?  Some see a sinister political motive here.  Claims that the Bill Clinton’s  visit with the attorney general on the tarmac lead to a deal to squash prosecution.  This is the conspiracy thesis.  Comey’s letter to Congress is political payback, with him recognizing that he does not keep his job if Clinton is president.  Maybe.  But a more probable theory is that Comey did it to protect the FBI budget.  Congressional Republicans were angry with the decision not to charge Clinton and they were making noise about budgetary retaliation.   This letter might be no more than  organizational politics, and less personal animus or sabotage directed at Clinton.     Now consider the legal issues here. First note that the FBI did not say it was reactivating the criminal investigation against Clinton.  It discovered new emails on a computer owned by Clinton’s top aide in connection with a criminal investigation into her estranged husband’s sexting.  There is no indication as of now there are any classified e-mails here.  Legally nothing has changed here.

But more importantly, even if the FBI finds classified e-mails, it still does not change the legal game.  There are several possible laws that Clinton could have potentially broke, of which only  one is a criminal law.  The main criminal law--Section 1924 of Title 18 of the U.S. Crimes and Criminal Procedure Code–is the most relevant.    Here is what that law says.

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

The critical part of this law is the emphasis on the words “knowingly” and “intent.”  Why is this important?  Criminal law requires the proving of two elements to establish guilt: actus reus and mens rea.  Actus Reus refers to the showing that one factually did a specific thing–such as physically take something–whereas mens rea requires proof of some level of intent.  With the exception of a very few regulatory crimes, there are no strict liability criminal laws in the US.  One has to show some level or type of intentionality to establish guilt, and this proof has to be beyond a reasonable doubt, with the presumption being innocent until proven guilty.

The reason why this is important is that Director Comey had already concluded that in FBI’s  questioning of Clinton she did not intend to deceive.  Moreover, there is no evidence that there was intentionality or knowingly on the part of Clinton that would establish that she violated 18 USC § 1924.  The same would be true of any other alleged criminal violations such as those for perjury and false swearing.   For example, 18 U.S. Code § 793--Gathering, transmitting or losing defense information–states it is “illegal for any person with “the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States.”  This law requires a very specific intent–to bring about harm to the US.  Clinton may be a lot of things but under no circumstances can one argue she is a traitor or wishes to intentionally bring hard to the United States.

The broader point here is that first there is no indication that Comey’s evaluation of new emails is reopening the Clinton criminal investigation.  Second, among the several laws she possibly could have violated, only a few are criminal.  Third, there is no indication that any new emails would likely change anything in terms of establishing the mens rea necessary to establish criminal liability.  In short, the legal situation of Clinton has not changed at all since Friday.

But turning to politics, coming 11 days before the presidential election this story impacted the Clinton campaign in several ways.  While Clinton had appeared to be opening up a near insurmountable lead in national aggregate and swing state polls, and the likes of the NY Times and FiveThirtyEight had just about declared the race over, there were signs even before Friday that she was beginning to slip in the polls.  Some sites claimed she had already lost eight points in the last week, but there are many reasons to discount this big erosion given polling margins of errors and the inclusion of  outlier polls.  Clinton had a lead that was built less out of how good she had been campaigning but more out of how bad Trump had been since the first debate.    Clinton was falling again into over-confidence, and failing to realize the volatility of her support given her still high negatives.

The Comey letter freezes her momentum.  It takes away her narrative and the focus on Trump’s sexual behavior and puts spotlight again on her character.  Clinton is now again in a defensive mode, one that may be difficult to reverse and the Clinton camp knows that; that is why they are so angry.

Potentially this story does not matter.  Lots of people have early voted.  But the early voters are those who made up their mind to vote and for whom.  The battle all along has been to move swing voters and mobilize the base.   Trump’s road to victory is heavy mobilization of his base, dispirit Clinton’s, and discourage swing or marginal voters from showing up for the former Secretary of State.  The new email story re-energizes the Trump base and it may discourage the marginal Clinton supporters and swings from voting.  The election will be won or lost by the remaining 5% or so of the voters who are deciding if and how they will vote.  Early voting may not be great enough to offset how this final 5% decides.