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Talking Judge Kavanaugh And The Page FISA Warrant With The New York Times’ Michael Shear

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The New York Times’ Michael Shear joined me Tuesday morning to talk Judge Kavanaugh and the Steele Dossier’s role in the Carter Page FISA application:




HH: We like to bring to you reporters from around the United States, including Michael Shear of the New York Times. Good morning, Michael, how are you?

MS: I am good. Good morning, Hugh.

HH: I want to cover two things with you – the Steele Dossier, the FISA warrant and Brett Kavanaugh hearings. Let’s start with the latter since you’ve just written about that for the New York Times.

MS: Sure.

HH: I’ve had a couple of Republican senators, including Thom Tillis, tell me third week in August, maybe fourth week for the hearings, even though they’re slow walking the meetings. What’s the schedule you have in your reporting?

MS: I think that sounds right if things go well. I mean, I think there is a couple of things on deck that could slow that down. One is that you know, there seems to be acknowledgement on both sides that the paper trail for Brett Kavanaugh is larger than most nominees. It has not only the legal record that both sides want to go through, but also a long service in government and in the Bush White House, which produced a lot of email, a lot of documents that has his name on it. And so they’re wrangling over how much of that should be turned over to the committee and to the senators on both sides. If they, if the Democrats push that, or if the Republicans agree to a long, you know, a big document dump, then that could push the process out a little bit. But I think that’s certainly what the Republicans would like to aim for.

HH: Now Michael Shear, when I was in this business and I got a phone call when the Chief Justice was nominated, it was a courtesy call, not a permission call, telling me that all my files at the Reagan Library from my time sharing an office with the Chief Justice in the 80s were about to be released, and that I should brace myself for anything embarrassing. I was a boring, young lawyer, so there was nothing embarrassing. But it takes forever to dump those files out. And I think there are a million pages with regards to Kavanaugh. Do Democrats really expect to find anything, or is this just a delay tactic, because it delays it closer to the election? There’s no way they’re going home without that election, I mean, without that confirmation vote.

MS: Right, right. I think that it’s a bit of both. Part of it is a delay, because I think the Democrats feel like the only chance they have to really stop Kavanaugh would be to find something, and if you delay it, there’s, I guess in their minds, more of a chance that something might pop up. But I also think there is a, you know, an understanding that you don’t want to set the precedent that somehow a lifetime to the nation’s highest court can be achieved without a thorough vetting of someone’s record. And just because you’ve nominated somebody who has a long paper trail shouldn’t mean that you somehow, you know, sort of wave that aside and say you know, well, that’s okay, we don’t need to look at that stuff. So I think the Democrats have both a kind of legitimate and sort of political argument as well.

HH: Yeah, it’s very legit to get the White House files, and they knew that. But not meeting with the courtesy calls prior to this massive document dump which is coming is to me a little bit of posturing. And I note in your reporting that Joe Manchin has already met with Brett Kavanaugh, and Heidi Heitkamp is going to. So I assume Joe Donnelly of Indiana, I assume Claire McCaskill of Missouri, I assume Bill Nelson of Florida, wherever there is a close race in a Trump state, I think we’re going to get a meeting with the nominee. Agree or disagree?

MS: I agree. I don’t think actually Manchin has met with him, yet. I think that the meeting has been scheduled, is my understanding. Heitkamp, I think, has agreed to a meeting, but it hasn’t yet been scheduled. Look, I think the problem is that once you meet with them, the, you know, the, it is much harder once the pictures are there with you shaking the person’s hand in the lobby or whatever, it is much harder to pull that back if something comes out or if, and it’s not, so for those senators you mentioned, the Democrats in a kind of red state, that’s one political calculation. For a Chuck Schumer or a liberal senator, the image for their base of standing there next to, you know, grinning and shaking hands with the nominee, that’s something they don’t want to see.

HH: All right, let me talk about the next story, which is the Rashomon story, they come up every day, where people like me see it differently than people on the left. And this Rashomon story has to do with the FISA application that was produced in heavily redacted form. I am careful to say wait for the IG report. We don’t know what’s in the redaction. But it looks like that warrant was issued on the basis of the Steele dossier, and would not have been issued but for the Steele dossier. Do you agree with my assessment?

MS: Well, look, I think it’s, as you say, it’s very hard to know for sure because so much is redacted. I think the timeline would suggest that you’re not right, right? The timeline suggests that the investigation writ large was already well underway before the Steele dossier was even completed, that was underway because of George Papadopoulos, other sort of hanger-on Trump foreign policy sometimes advisor person. Having said that, I think you’re absolutely right that people are viewing all of these documents, and in particular now the application for the FISA warrant, as you know, kind of through the lens that they bring to it. And you know, if you’re a liberal and want to look at that document, and you look at the footnote, the extensive almost full page footnote that’s in that document and say see, the FBI did describe in pretty good detail that the Steele dossier had some biases. The people that produced it and ordered it done had biases that clearly wanted to damage the Trump campaign. On the other hand, if you’re a Republican, you look at it and you say yeah, but they never mentioned the DNC. They never mentioned who was actually funding it. So depending on how you look at it and what you want to see in it, you can see it two different ways.

HH: Now I base my experience based on a year with two attorneys general reviewing hundreds of these. But it was in the 80s, and standards have changed and different things have changed. What I do, though, is ask for people to take analogies from their own world. So Michael Shear, if you take to your editor an explosive story with confidential sources in it, do you discuss the nature of those sources with your editor?

MS: We do. We definitely have guidelines and rules that require us to disclose to editors who those sources are. But I will tell you that there’s, you know, how much information we share and how widely we share it in the newsroom is often dependent on you know, how sensitive that person is. The more sensitive you know, a source is, the tighter the circle will be in terms of how much information we’re going to disclose for obvious reasons. You don’t, you know, you don’t want to put that person at risk. So you have way more experience with these applications, these FISA applications than I do, but as you say, I think my sense is that it’s a question of judgment in terms of how much you, you know, sort of how much you put into a FISA application and how much a judge demands. Some judges probably demand more than others, I suspect.

HH: Well, back in my day, again, it’s 30 years ago.

MS: Right.

HH: The applications were prepared by the FBI’s Counterintelligence office. There was no national security division. They were brought over to the special assistant for FISA, that was me for a year, and there was a safe in my office. There was a safe in the AG’s office. And the markings, if you left it on your desk, you were disciplined. If you took it home, you were fired. If you gave it to anyone, you were prosecuted.

MS: Right.

HH: And you disclosed everything to the counterpart to the editor in your story is the FISA judge, the FISC Court.

MS: Right.

HH: They got everything. You didn’t hide anything in a footnote. I mean, you just did. But there, they did hide it. And the only explanation I can come up with, Michael, is they did not want the Court to know that it was Perkins Coie, that it was Michael Steele, and that it was a campaign opposition research. That’s the only reason not to disclose to the Foreign Intelligence Surveillance Court, which is a classified proceeding in a swept room in the middle of a concrete chamber. There’s just no reason not to disclose that. Is that persuasive to you?

MS: I mean, look, it’s not, it really at the end of the day doesn’t matter whether it’s persuasive to me. I know that if you talk to Democrats and critics of the President, they would say it’s not persuasive because the, even though the people weren’t named, the kind of the idea of bias, the idea that the information was coming from a source that was intending to do damage to the Trump campaign, that was clearly in there. And you know, legal people, you know, say to us in the press that the fact that it was a footnote is irrelevant, because judges are, you know, judges use footnotes all the time to convey information and in rulings and briefings. They’re familiar with that. So look, it’s not for me to say. You know, I’m not the one that needs to be persuaded. The question is where’s the public on this, and you’ve got this, as you well describe, this back and forth between how people are viewing this document. And I think what is unclear right now is how that debate is playing out in the public and whether it’s really going to affect the midterm elections or beyond.

HH: And I think what really matters is the IG report.

MS: Right.

HH: And I hope we have the IG report, because he will see the redacted portions, because there may have been independent reasons to give this away. And the judges would have read the redaction. And I’ve got to remind people in the redaction, it may name Perkins Coie, and it may name Michael Steele. I doubt it, but it might. You’re right about the footnotes. Michael Shear, as always, a pleasure. Thank you for joining me. Follow him at the New York Times, and follow him, @ShearM, on Twitter.

End of interview.


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