Richard Herman on FISA Memo: ‘Nothing More than a Propaganda Machine ... to Fire Mueller’
WHITFIELD: "All right, Avery Freeman, a civil rights attorney and law professor in Cleveland, we called in the best, per usual, and Richard Herman, a criminal defense attorney, joining us from Las Vegas. Good to see you both. All right, so Avery, you first. This is going to be almost like a FISA 101 but a real truncated version because it is really complicated. We’ve got the GOP memo that’s been released. It’s very critical of the process. First off, Avery, tell us what the FISA court is generally used for, what exactly is required in order to get a surveillance request approved."
FRIEDMAN: "Well, usually, if you’re — 99.999% of Americans have never seen a FISA application."
FRIEDMAN: "You have an investigation of substantial evidence in which the Justice Department merely has to establish probable cause. That is a very low standard. Ultimately a judge, a panel of foreign intelligence surveillance judges, and it’s a secret court, needs that evidence. And while they don’t automatically grant necessarily a warrant, ordinarily they do. But it is substantial evidence, which a FISA judge requires. I guess that’s the point here, with a 3 1/2-page memorandum, there is no possible way that you can really understand what the court did in this case."
WHITFIELD: "So, Richard, in the case of Carter Page, former, you know, Trump campaign adviser, it has been stated that the FBI had been looking at him for a very long time. It goes back as far as 2013. But this GOP memo is kind of zeroing in on 2016, and the interaction that this adviser had with the trump transitional campaign and even how the surveillance continued of Carter Page, even after he left the campaign. So I’m saying all that to say there were many renewals for Carter Page. And the renewal comes up every 90 days. The deputy attorney general Rosenstein signed off on a warrant renewal, as did his predecessors. So the GOP memo is trying to establish that, you know, Rosenstein and others unfairly targeted, you know, Carter Page. So help people understand, you know, what it means to get a renewal. It’s nots no carely just a stamp of approval but there’s a lot that’s entailed."
HERMAN: "OK, Fred, there’s a few things to digest here. Number one, there were four applications made on Carter Page to suggest that either he was a spy or he was a foreign agent working against the united States. They base that on a lot of information. Including the Steele dossier. Which substantial portions of it were corroborated. The Republicans claim the Steele dossier is a fake document made politically by the Democrats which, by the way, began by conservative Republicans, a billionaire conservative Republican funded it initially. But the point is this, Fred, an application for a warrant. The source of the information doesn’t matter. The credibility of the information is all that matters. And —"
WHITFIELD: "--So they were already looking at Carter Page. There were other things. But the dossier came kind of late in the game. Go ahead."
HERMAN: "This is nothing more than a propaganda machine to lay the foundation to fire Rob Rosenstein. That’s all this is. For the president today to get on and tweet that this four-page memo by Nunes, this opinion letter by him, for which he never even read the 400 pages of underlying documents, which supported the FISA application, he cherry-picked and put this together with no knowledge of criminal law, no knowledge of criminal procedure, no knowledge of the FISA application. He puts this together. For the president to say this totally exonerates him, it’s scary, Fred, because it shows a complete lack of intellect, of knowledge of criminal procedural, of knowledge of criminal law and common sense. It’s absurd. We’re on the level of absurdity right now, Fred. This Devin Nunes in our lifetime could well be the most corrupt, dishonest —
FRIEDMAN: "Oh, now, wait, that’s not fair —"
HERMAN: "— Congressman we have ever seen. Yes, it is."
WHITFIELD: "Avery, if the memo — some worry that the memo might undermine the Mueller investigation. Is it your view or concern that the memo in anyway undermines the FISA, you know, process? Does it potentially jeopardize other cases down the line? Because of what was released in this memo?"
FRIEDMAN: "Well, it might, but — and that’s why the department of justice said that there are material omissions. And that’s very important. But at the end of the day, let me explain this in a little bit different way. My colleague and I disagree on thing, but I bet we’ll agree on this. In any kind of legal proceeding, forget the political part, in any legal proceeding in a courtroom, a judge always says to the jury, Fredricka, you’ve heard some of the evidence and the judge admonishes don’t make a decision you’re not permitted to render a decision until you hear all the evidence. So, yes, there’s a lot of evidence. I don’t understand if the president wants the truth, why would you hide one interpretation by the Democrats and release the Republican version? The fact is, that information — look, Americans are good and righteous people. And they want the truth. Let’s get as much evidence as we can out so Americans can understand this."
WHITFIELD: "All right, Richard, last word."
HERMAN: "Yes, to answer your question on that. This is an issue of national security, Fred. It will feel to the public and to the Russians and a lot of other people the inner workings of the FISA court. That is national security. Just like when the president invited the Russians into the White House and breached national security with them. Think about your lifetime how many presidents have breached national security. This was a complete waste. This is a propaganda machine; I'm predicting, Fred, within 72 hours, the president will terminate Rosenstein, put a political hack in there, in an attempt to curtail Mueller or fire him."
FRIEDMAN: "Won’t happen."