When we first started The McCarthy Report, I wondered if our podcast would have run its course once the Mueller investigation and the always hovering threat of impeachment finally wound down. Well, they’re unwound, yet it seems like Rich and I have as full a plate of legal and national-security issues as ever. This week, it was overflowing.
We had an extensive discussion of what’s been referred to as “FISA reform,” a misnomer to my mind since what’s being proposed would only exacerbate what is fundamentally wrong with the Foreign Intelligence Surveillance Act of 1978 — namely, the creation of a secret court to oversee foreign-intelligence surveillance, a non-judicial function. Rich and I talked about what is actually at stake in the current FISA dispute. It should relate only to the reauthorization of three PATRIOT Act investigative tools that will otherwise expire. Instead, reauthorization has been conflated with the president’s demand for accountability in connection with the FBI’s Trump-Russia investigation abuses of FISA surveillance. The kind of surveillance, the core of FISA, bears little relation to the expiring PATRIOT provisions.
I’ll have more to say about that in the weekend column come Saturday. On the podcast, we break down the good and the bad of the compromise bill that is still being negotiated on Capitol Hill. We also look at an issue that should get more attention: how the Supreme Court in its 2018 Carpenter case altered Fourth Amendment jurisprudence in a manner that could have profound consequences for foreign-intelligence collection in the future.
Impeachment never really goes away. Rich and I also discuss two recent rulings by the D.C. Circuit Court of Appeals that are in seeming tension: the Don McGahn decision, in which one divided panel ruled that the court should not intervene in a dispute between the political branches over a House subpoena for testimony by the White House counsel; and another in which a divided panel went ahead and intervened in a dispute between the political branches over a House subpoena for grand jury testimony. (Interestingly, as I was writing this post, the D.C. Circuit announced that it would reconsider the two cases en banc . . . so I guess we’ll have more to say about them next week.)
Senate minority leader Chuck Schumer (D., N.Y.) got himself in hot water last week over his not very subtle threats against Supreme Court justices. Less attention, though, has been paid to the abortion case that occasioned the senator’s outburst. Rich and I look at that litigation, involving a Louisiana abortion restriction, which has some intriguing twists — not least, the test of where the new justices, Trump appointees Gorsuch and Kavanaugh (Schumer’s targets), will come out, and whether Chief Justice Roberts is . . . um . . . evolving.
Finally, we looked at the astonishing opinion issued by federal District judge Reggie Walton, in which he rebuked Attorney General Bill Barr over the public roll out of the Mueller report. As I opine, it is Walton who deserves rebuke for an exercise that was gratuitous, wrong on basic facts, and indecorous.
Are you looking at a weekend of self-quarantining? Or maybe just some harmless social-distancing? If so, I hope you’ll tune in and enjoy!