Listen as Larry spoke with Andrew McCarthy, a former assistant U.S. attorney for the Southern District of New York, about his latest article, Positioning over the Nunes FISA Memo Continues Ahead of Its Release.
O’Connor: I just relayed part of your latest column talking about how the real objection it appears from the FBI is not that they were barred from reviewing the memo, it’s that they were barred from reviewing it on the schedule that would make it more difficult to keep it from coming out. And it’s a great point that you made. I’d love to now bring you to what we’re hearing is the latest objection, which is, well, this omits a whole lot of facts. This isn’t the whole picture this summary memo.
McCarthy: Well this is the point I’ve been trying to make for a few days now Larry. This is something that, like classified information, this is another thing that comes up actually more often in litigation and that is that you need to have, you have voluminous information you have to boil it down to something that’s presentable that people can understand the gist of it, but you want to make sure it’s not a one-sided presentation. So, what happens is when one side offers it’s versions of events if the other side says that certain details are necessary in order to have the type of context that can make your understanding more accurate then they are perfectly free to offer that context. So it’s either the Democrats or the FBI are contending that that Chairman Nunes and the professional staff on the Republican side of the committee has in any way made a summary that is misleading they are invited to add new facts and evidently that process did go on.
O’Connor: Well and either way this is really, and you make the point here Andrew McCarthy, that this is really about public scrutiny. I just asked a rhetorical question, if the House and the Senate are not to have transparent or as transparent as possible oversight of the Justice Department and the FBI’s actions than who is?
McCarthy: Yeah, well that’s a very important point. You know, a lot of my old friends in the law enforcement community seem to think that law enforcement is a fourth branch of government. That it’s not accountable, it doesn’t answer to anyone, that you can’t have any political interference with it whatsoever. But politics, that’s not always a dirty word, in the Constitution, politics is how we get accountability by signing power to political branches. And law enforcement is put in the executive branch precisely because we need to have somebody who is accountable for its performance. So the President is accountable for the way that our law enforcement performs. And therefore law enforcement which exercises the President’s power is accountable to the President and subject to oversight by Congress just like everyone else in the executive branch.
O’Connor: Additionally Andrew McCarthy, I’d love to take a moment about Devin Nunes. The over-the-top reaction we’ve seen building up in the media and then Adam Schiff last night, the ranking member accusing Nunes of lying and falsifying this memo sent to the White House, Nancy Pelosi now calling on Speaker Ryan to remove Nunes from the Intelligence Committee. They have personalized this, they have made this about him. I saw somebody on MSNBC mocking him saying, “Who put this dairy farmer in charge of our intelligence? Last time I checked, George Washington was a tobacco farmer. Talk to me about Mr. Nunes and how he has conducted himself from your perspective.
McCarthy: Well, I think the Chairman misfortune is that he doesn’t understand how it’s done in Washington. So, if he really wanted to get this information out the thing to do would have been to leak it illegally to the media. And then hope that they would run with it. Instead he had [inaudible] followed the rules. So, what he did was prepare a summary, which by the way Congress’ own Classified Information Procedures Act says that when you’re in a situation where you need to disclose facts that are reliant on classified information but you can’t afford to reveal the classified information cause that could blow things like methods and sources of intelligence, what you’re supposed to do is prepare a summary – which is what he did. Then you make it available to anybody within the committee who might want to comment on it, add to it, object to it, whatever. And then they get to vote on it while keeping it classified and then they give the President five days, a chance to object to it being revealed. So the problem that Nunes has is that by following the laws and the rules he’s gotten himself mocked by a media and Washington culture, which really relies on illegal leaks to get he information that they want out to the public.
O’Connor: Yeah, it’s really something. Finally, Andrew McCarthy, I don’t want to put you in the place of a hypothetical but I’m going to anyway… If it turns out that what’s revealed in this memo and further exploration of this topic is the FBI for unknown reasons did in fact politicize this FISA court, and did in fact irresponsibly spy on members of the Trump campaign without the benefit of a foreign national involved, how big, on a scale of scandals, how big is that story? And how concerned should we be?
McCarthy: Larry, it’s really impossible to say at this point because I think it’s highly likely we can say at this point that we’re going to find that the unverified Steele dossier was used in some proportion in a FISA application, that is an application for a surveillance warrant from the FISA court, it makes a big difference whether the dossier made up like two percent of the FBI’s justice department’s presentation or whether it was so essential that you wouldn’t have gotten the warrant issued without it. And until we can get to the bottom of that part of it, I think we can’t access whether this is a mule hill or a mountain.
Positioning over the Nunes FISA Memo Continues Ahead of Its Release
It appears very likely that President Trump is going to allow the disclosure, in some form, of the memo on alleged FISA abuse authored by majority staff of the House Intelligence Committee under the direction of Chairman Devin Nunes (R., Calif.). It could happen as early as today. As one would expect, both sides of the dispute over the memo are intensifying their pre-publication efforts to influence public reaction — as discussed here in last week’s column considering objections to the memo. Since before the Republican-led committee voted (along partisan lines) to seek the memo’s declassification and publication, the FBI has been complaining that it was not permitted to review the memo. As I explained last week, this was a very unpersuasive complaint. Having stonewalled the committee’s information requests for several months, the Bureau and Justice Department are hardly well positioned to complain about being denied access; the committee, by contrast, has every reason to believe they would have slow-walked any review in order to delay matters further. [Read More]
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