Lawfare: The Dubious Legal Claim Behind #ReleaseTheMemo by Orin Kerr:
[Spoiler alert: I agree that it is more than dubious since two branches of our government have absolutely no clue what the Fourth Amendment means. It’s like a Franks challenge: So what if the snitch was paid? (See this case posted 1/26.) The rest shows a wealth of probable cause so it’s hardly material.]
It seems likely that the House Intelligence Committee will soon #ReleaseTheMemo. According to press reports, the memo claims that the FISA application to monitor Trump campaign advisor Carter Page included information sourced from former British intelligence officer Christopher Steele “without adequately explaining to the judge that Democrats financed Mr. Steele’s research.”
This is a scandal, the argument runs, because it means the application was fraudulent. Because Steele was funded by Democrats, his reports were just unreliable opposition research designed to make Trump and his associates look bad. And if the FISA application was based on Steele’s unreliable research, and DOJ never told that to the FISA Court, then DOJ misled the court and the court should not have issued the warrant.
As a Fourth Amendment nerd, it seems to me that the premise of #ReleaseTheMemo is pretty dubious. The apparent idea is that the failure to adequately document the funding behind Steele’s work is a huge deal and a fraud on the court. But as a matter of law, that seems pretty unlikely to me. When federal judges have faced similar claims in litigation, they have mostly rejected them out of hand. And when courts have been receptive to such claims, it has been because of specific facts that are likely outside the scope of the memo that will be released.