As speculation builds over the Nunes memo, on Lawfare Professor Orin Kerr of USC casts doubt on one of the central propositions thought to make up the memo – requesting an affidavit under false pretenses:
And some of that depends on identifying just what the narrative is for why the funding source was critical to establishing probable cause. I think that point is really important and too easily ignored. In #ReleaseTheMemo circles, any possible link between the Steele dossier and the Clinton campaign is like an atomic bomb. It completely annihilates any possible credibility the Steele dossier may have, leaving the exposed words of the dossier behind like the haunting shadows of the Hiroshima blast.
But that’s not how actual law works. In the world of actual law, there needs to be a good reason for the judge to think, once informed of the claim of bias, that the informant was just totally making it up. As United States v. Strifler shows, that isn’t necessarily the case even if the government paid the informant to talk and guaranteed that they would get out of jail if they did. Nor is it necessarily the case just because the informant is in personal feud with the suspect. What matters is whether, based on the totality of the circumstances, the information came from a credible source.
That’s a problem for #ReleaseTheMemo, I think. To my knowledge, Steele was not some random person motivated by an ongoing personal feud against Trump or Carter Page. To my knowledge, he was not a drug dealer facing criminal charges who was promised freedom if he could come up with something for the government’s FISA application. Instead, Steele was a former MI6 intelligence officer and Russia expert. He was hired to do opposition research because of his professional reputation, expertise and contacts. And his work was apparently taken pretty seriously by United States intelligence agencies. Of course, that doesn’t mean that what’s in the dossier is true. Maybe the key allegations are totally wrong. But if you’re trying to argue that Steele’s funding sources ruin the credibility of his research, his professional training and background make that an uphill battle.
That’s just the legal world, though. This is playing out in the court of public opinion, and it’ll be necessary to communicate the legal opinion to the public in order for the public to understand that the memo is meaningless – if, in fact, the memo contains what it’s thought it contains.
