Happy Friday Trump Watchers! Flashback to exactly a year ago, when Attorney General Jeff Sessions took office. Speaking of DOJ, memo mania has put the Foreign Intelligence Surveillance Court in the spotlight, netting fascinating commentary from the legal community. So grab your scuba gear, ’cause I’m taking a FISA deep dive in today’s newsletter. Some of you may also notice I’ve added some funky new features to this week’s edition, including the “Gavel Tracker,” which shows the Trump administration’s progress on judicial nominations. Love it? Hate it? Don’t care? Let me know at email@example.com or on Twitter: @CoganSchneier. Let’s get to it.
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THE FISC FRENZY
The White House is expected to decide today whether to authorize the release of a 10-page memo from House Democrats that reportedly rebuffs a memo from their Republican peers released last week. Republicans touted their memo as proof the Justice Department engaged in egregious Foreign Intelligence Surveillance Act abuses in obtaining a warrant to monitor former Trump campaign volunteer adviser Carter Page.
Much of memo mania is purely political. But, to this nerd’s delight, it’s prompted broad discussions about the court that reviews FISA warrants: The FISA court, known as the FISC. A brief FISC overview:
→ The court operates largely in secret, with the exception of some rulings or filings made public for various reasons. → It consists of 11 federal district judges, appointed by the chief justice, who typically sit for a week at a time on a rotating basis. → Its reviewing court, the Foreign Intelligence Court of Review, includes three circuit judges, also appointed by the chief justice. → The Washington Post has a fascinating story today about the court’s history.
A penny for your thoughts, FISC? Less than inclined to take politically-motivated lawmakers’ words for it, some want the FISC to weigh in on the debate over what DOJ did or did not disclose in their applications to monitor Page, and further, whether judges think they were duped, as Republicans claim. Morrison & Foerster associate Sophia Brill, writing for the Lawfare Blog, put it this way: “The FISC could speak for itself.”
→ The New York Times agrees. Reporters Charlie Savage and Adam Goldman filed a motion this week requesting the court make all of its Page-related orders public, as well as the application materials for those orders. Repped by their in-house team and lawyers from Yale Law School’s Media Freedom & Information Access Clinic, the Times reporters argue there is “no longer any reason” to withhold the documents after the Republicans’ memo.
→ The folks at Lawfare also asked FISC to chime in. Editor-In-Chief Ben Wittes (a Legal Times alum) and Executive Editor Susan Hennessey filed an amicus brief with the court, encouraging it to “lift the confusion and division” caused by the Republicans’ memo. The brief said the court could do this by issuing an opinion, sending a letter to lawmakers or releasing relevant portions of the warrants and orders.
“Amici believe that this Court, to the extent it has a relevant proceeding before it, has a unique opportunity—and, also, responsibility—to shed light on matters of enormous public interest bearing on the integrity of prior proceedings before this Court,” the brief said.
→ Lawmakers themselves are also interested in what the FISC thinks. My colleague Tony Mauro reports Rep. Devin Nunes, R-California, who authored the Republican memo along with his staff, said in a radio interview he was considering asking Chief Justice John Roberts Jr. to testify before Congress, since Roberts appoints the FSIC judges. As Tony explains (more eloquently than I), that would be pretty awkward.
Meanwhile, Rep. Bob Goodlatte, R-Virginia, wrote a letter last month to U.S. District Judge Rosemary Collyer, the current chief of the FISC, asking for the court’s materials related to Page (before the public release of the memo).
So how does FISC feel? It’s unclear if the court will respond to any of these requests. Courts generally, including this super secret one, aren’t known for their willingness to wade into political disputes.
WHAT WILL NEXT WEEK BRING?
-On Monday, Judge Gregory Katsas will make his debut in oral arguments at the U.S. Court of Appeals for the D.C. Circuit. Katsas, who used to work in the White House counsel’s office, was confirmed by the Senate in November.
-Former Trump campaign chairman Paul Manafort and his sidekick Rick Gates will be back in court Wednesday. I also want to know what’s up with Gates’ lawyers, who have moved to withdraw from his case. CNN reportedSidley Austin’s Tom Green has joined Gates’ team. I smell a plea deal!
Article III vacancies: 140 Article III nominations pending: 51 (0 Supreme Court, 7 appellate, 44 district) Article III judges confirmed: 24 (1 Supreme Court, 13 appellate, 10 district)
For reference: President Barack Obama had 16 judges confirmed at this point in his presidency. President George W. Bush had 31. Also, Senate Majority Leader Mitch McConnell dished about his strategy on judicial noms to Time this week. Read it here.
-There’s a new soon-to-be IRS chief in town and he’s a lawyer, obviously. C. Ryan Barber and Cheryl Miller have the deets here.
-The fight over DACA is now at the Supreme Court. Marcia Coyle reports Covington and Gibson Dunn are leading the DACA defense. More here.
-Quinn Emanuel’s Bill Burck represents White House counsel Don McGahn, former chief of staff Reince Priebus, and last but never least, Steve Bannon. What kind of conflicts could that present? Miriam Rozen digs in here.
-One of Trump’s FTC nominees took a trip to the Soviet Bloc in 1984. C. Ryan Barber explains how that shaped her worldview here.