1/ Here's a quick-ish explanation of why I'm not persuaded by @AndrewCMcCarthy's argument that critics of the Nunes memo (myself included) have overlooked a "fatal flaw" in their criticism. nationalreview.com/article/456093…
2/ Andrew says it is "truly outrageous" "that critics of the Nunes memo "don't -- or won't " see the true problem with the Page affidavit: Anything Steele said was hearsay based on his sources, & we don't know Steele's sources. Here's why I think that criticism is misplaced.
3/ On one hand, Andrew is surely right that double hearsay can weaken the evidentiary value of an informant's report. If informant A didn't actually see a drug buy, but just heard from B that it happened, A's report on what B told him is much weaker than if A saw it himself.
4/ But there are two big problems with trying to invoke that point here. The first is that it only goes to the relative weight of relying on Steele's report. I think we all agree that Steele's report would have a stronger basis if Steele was actually in the room with
5/ Vladimir Putin & discussed Trump w/ Putin. But that point goes to how much cause Steele provided, not whether there was "abuse" of the FISA law. Nunes's claim is that DOJ/FBI lied to the FISC by omission, hiding key evidence, not that the FISC had all the evidence but maybe
6/ didn't judge probable cause correctly in the Page case. Because we don't know what other evidence there was on Page, we can't tell how much the Page application relied on Steele. Given that, the fact that the Steele dossier relied on double hearsay can't be a criticism
7/ of the Page application (or at least not one that makes any sense based on what we know). Second, the fact that the Steele dossier relied on double hearsay is obvious from the nature of the report and already factored in by anyone trying to assess its credibility. What makes
8/ Steele credible, to the extent he is, is a particular understanding of the strength and reliability of his intel sources. The fact that they are unknown to us doesn't mean they can't be credible. See Illinois v. Gates, overturning Spinelli v. US's informant test .
9/ Finally, Andrew's piece suggests that critics of the Nunes memo are being evasive and sneaky in not responding to his arguments. If that suggestion was intentional, again, I think it's misplaced: Critics of the Nunes memo are just replying to the arguments of the Nunes memo.
10/ As far as I know, Andrew is the first to make this argument. I don't think it works to suggest others are being evasive for not responding to an argument no one has ever made until now. /end
