Alan Dershowitz on the Nunes memo: Republican 'truth' and Democratic 'truth'

Alan Dershowitz on the Nunes memo: Republican 'truth' and Democratic 'truth'
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The Republicans have now released the memo containing their version of what is in the controversial FSIA application. Not surprisingly, the Democrats have a different version. It should be easy to decide whose “truth” is more credible: Let the American public see the application itself — instead of second-hand, partisan accounts — and let us decide for ourselves.

The problem with that obvious solution is that the application is currently classified. But classification should never be used – as it often is – for political benefit or to protect agencies or individuals from just criticism. Let a nonpartisan expert decide what must be redacted for genuine security concerns, and let the remainder of the application be released.

We, the American people, have the right to know whether the application deliberately failed to disclose to the FISA court that the so-called “Steele dossier” was commissioned by political operatives seeking dirt on a political opponent. We are entitled to know how much weight, if any, was given to the dossier in the application.

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The Republican memo, standing alone, raises questions about the process by which the warrants were obtained from the FISA court. The Democratic memo, if it is forthcoming, may purport to answer those questions. But it will never be able to answer them definitively without an objective assessment of the actual FISA application itself.

 

This episode strengthens the view I have long espoused that the entire enterprise of appointing a special counsel was misguided. Instead, Congress should have created a nonpartisan commission of objective experts to investigate all claims made by either party about any unfairness surrounding the 2016 presidential election. Nor are congressional committees an adequate substitute for a nonpartisan commission. Congressional committees by their nature are partisan, as evidenced by the dueling accounts of the FISA application.

Many Americans, though certainly not all, have also lost faith in the investigation being conducted by Special Counsel Robert MuellerRobert (Bob) Swan MuellerKamala Harris says her Justice Dept would have 'no choice' but to prosecute Trump for obstruction Kamala Harris says her Justice Dept would have 'no choice' but to prosecute Trump for obstruction Dem committees win new powers to investigate Trump MORE. Mueller himself continues to be held in high regard by most Americans, but many of his underlings are widely regarded as partisan. Mueller did the right thing by reassigning FBI agent Peter Strzok, after his communications with his girlfriend, an FBI lawyer, were revealed. But Strzok should have recused himself from the Clinton investigation based on his own knowledge of his bias against Trump. He should be fired, not merely reassigned, for not doing so and compromising the objectivity of Mueller’s investigation. When a president or a presidential candidate is being investigated, everyone involved in the investigation must be “Caesar’s wife” — above reproach. Several of Mueller’s appointees do not pass that test.

The Republican memo just released is not the last word on the issue. It is the opening salvo by Republicans. The Democrats are responding. Both sides have partisan agendas.

Now it is time for the American people to have their interests considered. As Supreme Court Justice Louis Brandeis once put it, “Sunlight is the best disinfectant.” The corollary is that over-classification keeps the infection spreading.

Partisanship has its role in politics, but there is no such thing as Republican or Democratic truth. Each side has the right to its opinion regarding the significance of the FISA application, but neither side has a right to its own facts. So the next step is for the public to see the application, properly redacted to protect national security, so that we can judge for ourselves.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy.” Follow him on Twitter @AlanDersh and on Facebook @AlanMDershowitz.