The memo that Republicans on the House Intelligence Committee released last week reads a lot like a motion to suppress evidence in an upcoming trial. It’s as much a piece of one-sided advocacy as any defense lawyer ever turned in.
It’s a motion before the Court of Public Opinion, which in the end will have a lot to say about how members of the House of Representatives vote on impeaching President Donald Trump, should it come to that. The release of this memo, orchestrated by Rep. Devin Nunes, makes it seem that it will.
That’s because the memo discloses that the Foreign Intelligence Surveillance Court renewed its initial order to snoop on former Trump campaign advisor Carter Page three times, each after a 90-day interval. The Justice Department would need to demonstrate that its surveillance was producing enough evidence to justify renewing the order—presumably, evidence that Page acted in behalf of Russia (which he denies).
Trump has contended time and again that there was no coordination between his campaign and the Russian authorities who, according to U.S. intelligence agencies, had tried to tilt the 2016 presidential election in his favor. The House Republicans are arguing through their memo that whatever evidence was gathered by snooping on Page—the memo is silent on that—is tainted. If no relevant evidence had been developed, the memo surely would have said so.
Still, the clear political motivation behind the memo’s release doesn’t mean it’s wrong to question the clubby world of the Foreign Intelligence Surveillance Court. The secrecy of the court, and the one-sided, ex parte nature of its proceedings have long raised concerns. The integrity of the system relies heavily on the good faith and credibility of its participants—who include members of the congressional oversight committees as well as high officials in the Justice Department, FBI and National Security Administration, and the chief justice of the Supreme Court, who selects the judges. That integrity is now broken as major players accuse one another in public of lying about what went on before the court.
The House Republicans’ memo appears to be highly selective in its choice of facts. Like any good defense lawyer’s memo, it looks to induce outrage over what may be the weakest part of the government’s submission, in this case the section on the “dossier” from the former British intelligent Christopher Steele.
Prosecutors are reluctant to volunteer evidence that undermines their case. Federal judges, who often started their careers as federal prosecutors, grant them a lot of leeway (but sometimes speak out in anger if they feel their trust was betrayed).