UPDATE: Release of the Nunes Memorandum

Federalism & Separation of Powers Practice Group Teleforum

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On Friday, February 2, President Trump agreed to release a memo written by the House Intelligence Committee about FBI surveillance activity of the members of the Trump campaign that occurred before the President took office. Those opposed to the release of the Nunes Memo, named for the Representative whose aids drafted the memo, argue that the release goes against intelligence protocol and is being utilized by Republicans to distract from the investigation in Russian interference in the 2016 election. Proponents of the release argue that it should be public to show the American people the actions of the FBI preceding the election. David Rivkin joins us to discuss the memo release and its possible effects.

Featuring:

David B. Rivkin Jr., Constitutional Lawyer and Former White House Counsel

 

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Event Transcript

Announcer:                        Welcome to the Federal Society's Practice Group Podcast. The following Podcast, hosted by the Federal Society's Federalism and Separation of Powers Practice Group, was recorded on Friday, February 2nd, 2018, during a live teleforum conference call, held exclusively for Federal Society members.

Dean Reuter:                     Welcome to the Federal Society's Practice Group Teleforum Conference Call, as today we discuss and give an update on the release to the Nunez memorandum.

                                                My name is Dean Reuter, Vice President, Director of Practice Groups, here at the Federalist Society, also general counsel. As always, all expressions of opinion are those of the expert on today's call. And always, as always, the call's being recorded, uh, for use as a podcast in the future, and will likely be transcribed, uh, to make it more searchable on the internet.

                                                We're very pleased to welcome return, return, return guest, uh, often with us on Teleforum, David D. Rivkin. He's a constitutional lawyer and litigator, a former Department of Justice and White House Counsel official, and, of course, a frequent contributor to the Wall Street Journal, and other publications, as well.

                                                Uh, he's gonna give us some opening remarks, including a background of about 15 or 20 minutes. But, as always, we'll be looking to the audience for questions. So, please, have those in mind for when we get to that portion of the program. With that, Mr. David Rivkin, the floor is yours.

David Rivkin:                      Thank you very much. I may go a little bit less than 15 minutes, but, uh, let's see how long it takes. So, I presume, uh, uh, everybody in this call has read the memo by now. Uh, what I would say, looking at it entirely on the merits, in terms of what are the, uh, various points being made and- and forgetting, uh, some, uh, (laughs) challenges, which we can tackle, uh, a bit later, as- as to the motivations of the people involved, uh, et cetera, et cetera.

                                                Um, the facts are- are- are- are, uh, disquieting. They certainly suggest that there was an incomplete, at best, an incomplete, uh, and not a fulsome disclosure to the FISC for an [inaudible 00:01:51] in Surveillance Court, in the context of, the, uh, uh, an application, so- some nice people call it a warrant, actually the technical term is an Order for a FISC Order, on Mr. Page, uh, such application had been filed on October 21, 2016.

                                                Uh, I would say several things here, uh, as we all know, the- the whole, uh, FISA process has been challenged from time to time, certainly, every time, uh, FISA is reauthorized, but done in context of the Patriot Act, reauthorization as well, by civil libertarians. So, uh, I- I would say, this is a, this is something that requires as much transparency as is possible. And I- I can think of no good circumstances, none at all, but, were driven by statute or regulation, for the National Security Division of DOJ and the FBI who filed that, uh, application, not to disclose all of, uh, the information to the FISC Judge.

                                                Now, what do we know, just parsing what's in- in- in this memo? So, the initial application was filed, there was no disclosure that Mr. Steele was working, uh, for Glenn Simpson, and Glenn Simpson was working for, uh, Mr. Marc Elias at Perkins Coie, uh, on behalf of the DNC and- and the Hillary Clinton Campaign, that is absolutely clear. There's a little bit of an anodyne, uh, description, in Section 1B of this memo, which says, that the application notes that Steele was working for a named US person. Uh, my guess would be that they mentioned, that he was working for Marc Elias at Perkins Coie, which is a, you know, respected law firm. Uh, but I, it certainly did not give a full flavor of, uh, of what's going on to a FISC Judge and I'm repeating myself, when I say, I can think of no good reason for incomplete disclosure.

                                                Then we get into the business about, uh, how consequential this in- information was and, uh, information in the dossier, and therefore information about the context for this dossier. Well, the memo mentions that there's probably, my guess is, a classified testimony, that at the very end of the memo, but then Deputy Direct McCabe, that talks about the fact that, but for the, uh, uh, this dossier, that, this, uh, that FISC order would not have been sought or obtained. So, whatever else was on the table, if you sort of use the traditional "but, for" test, this dossier, was very, very consequential.

                                                And then you have several other disquieting, uh, points, uh, aside from the fact that you did not mention the information, uh, full disclosure about who Mr. Steele was and who he was working for. It appears, and frankly being its new information that, uh, Mr. Steele was an FBI informant, who was suspended and terminated for, what the FBI considers to be a- a very serious breach of trust. Not, just unauthorized disclosure about it, but the fact that he lied to the FBI about it. And I, I understand that not all FBI, uh, informants are necessarily people of sterling character, but, by and large, there, you- you have to believe that your informant at least, whatever, he or she did in prior life is telling you the truth. (Laughs).

                                                So, um, the fact that, that information was not disclosed is probably, now, uh, let- let's give, uh, the folks involved the benefit of the doubt, they did not become aware of this information until sometime after October 21, by the end of, uh, uh, October. But this FISC quarter, as is required by Section 1805, um, which was obtained, required reauthorization, uh, every 90 days. Certainly and it appears that its been reauthorized several times. So, by the time you get to the first re-authorization, uh, the FBI and DOJ knew it, not only Mr. Steele was working, which he already did as of October 21, was working for the Hillary Clinton campaign, but knew that he lied to the FBI and was terminated as an FBI source.

                                                Uh, that information, (laughs) certainly would have been, uh, uh, would have been, uh, in my opinion, should have necessarily been brought the attention of FISC, in which case, I very much doubt that the Order would have been reauthorized. One- one other sort of factual point here, I'm troubled, not only, and I think the facts are troubling, not only as to how the, uh, Order was obtained, uh, was applied for and obtained, but the timing. There's nothing formal about it in the US Attorney's manual, but, I- I- I know that there is a very important rule, that, an unwritten rule, but nevertheless, DOJ follows, they try to avoid as much as possible, uh, taking any investigative and other actions with respect political campaigns for very obvious reasons, because they tend to- to leak, and, uh, they do impact, uh, political campaigns, and el ... or contest, which is at the very heart of our democracy.

                                                So, the question becomes this, why, oh, why was this warrant sought on October 21, slightly over two weeks before the November elections? Uh, FBI knew about Mr. Page and his involvement, in fact, he was working for Merrill Lynch, he lived in Moscow for a time, and was involved with, uh, Russian companies, which is all entirely legal, but if they felt otherwise, they had 2013, and 2014, and 2015 to obtain a FISC Order against it, or it could have waited until after the November elections. So, to me, one of the key questions that needs to be answered is not only the circumstances in which this application, uh, was filed, an Order obtained, but why did it happen on- on October 21, uh, verus, uh, versus a bit later period of time?

                                                Um, to mention one other thing, uh, look, I- I- I'm not prepared to say that we know everything, but the facts are sufficiently troubling. They need to be investigated. They should not be swept under the rug. Investigation should focus, not only in, not just an IG investigation, IG Investigation's a useful tool, but they're not the same as criminal investigations.

                                                And in my opinion, this matter, given what's at stake, um, has to be investigated very thoroughly, involving the circumstances relating to this particular application, but, also broader context, because it certainly, inferentially, the case that this particular application, and the inadequate disclosure to FISC took place in the context of rapid release to the media.

                                                Which, I suspect most of the folks on this phone call would not think it's necessarily such a bad idea. But, it- it- it is a fact, uh, blatant unmasking, uh, undertaken, not by people in this particular lane, the ones that secured the FISC Order. But, certainly senior National Security officials of the previous administration, including folks like, Director Brennan and Director Clapper and National Security Advisor Rice, so, you kinda put it all together, and it a very, very disturbing picture, uh, where this particular exercise, which is probably in its own right, may be a part of a- of a broader pattern here.

                                                The last thing I would say, and I- I find it quite disturbing, that, so far, uh, in the days leading to this, attention has not been the merits, I'm happy to discuss the merits, but, it all been on what I consider, you know, process issues, impugning the motives of the people who released it, arguing that this is unprecedented, breaks, you know, what, exposes sources and methods and hurts the reputation of FBI.

                                                Just to say briefly, two things, first of all, it absolutely doesn't matter, uh, what the motivations of people might have been, who, uh, drove, the release of this memo at this time. They could have been good, they could have been bad. I- I per ... think they're perfectly appropriate, but even if you think otherwise, that gives you no reason to sweep things under the rug, given the, uh, disturbing nature of the facts.

                                                Second, the notion that this document reveals any sources and methods is laughable. It- it doesn't, and moreover, we all know whenever important public policy issues are discussed, be it, uh, uh, the Iran Contra, be it the 911, hundreds of pages worth, enormously sensitive classified information, including, you know, Presidential Daily Brief, CIA's National Intelligence, uh, Assessments and Estimates and IE's, et cetera, et cetera, get released, and nobody says that's a bad thing, uh, because, you know, there instances where the importance of a public disclosure and the debate and reform are so paramount.

                                                And, as to hurting the reputation of the FBI, again, if you look at, at any of the exercises that, to which I mentioned, but many other exercises, uh, Congress, uh, and, uh, if it's done by an outside commission, frequently criticize the Agencies involved, uh, for various things ranging from, you know, incompetence to bad faith, and even unlawful conduct. So, you know, the notion that this is, uh, and the critics are saying that this so, somehow a dastardly plot against our national security institutions, to me, just rings so hollow. Given, uh, you know, 911 and, uh, uh, uh, exercise and Iran Contra set aside, just reminding me, maybe I'm the oldest person on this call, the- the Pike and Church Committee Hearings, where the CIA was massively taken to task, with an enormous level of disclosure of classified information for various things they've done during the Cold War. Uh, and- and- and strenuously criticized, I don't remember anybody saying at the time that, that was somehow unpatriotic.

                                                Anyway, uh, I'm gonna stop here, and, uh, and see if we can have some, uh, some dialogue going.

Dean Reuter:                     Yeah, we've got, uh, well over 250 people on the phone, so, uh, I expect there's quite a few questions. So, let's open the floor right away, in a moment, we'll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have a question for our guest, push the star button, and then the pound button on your telephone. Once, again, if you have a question, push the star button and then pound button on your telephone. Uh, as people begin to queue up, let me ask, uh, the first question, if I could.

                                                Uh, then ... and that is, um, you know, if this, uh, request the FISA was- was reissued several times, requested by so many different people, um, does- does that, what does that say about the legitimacy of the process? If so many people were involved in- in requesting this, and if it was approved, and re-approved, and extended, and extended, um, doesn't that support the argument that, um, it was a legitimate request from the outset?

David Rivkin:                      I'm afraid, uh, I'm afraid, uh, Dean, that the reverse is true, and look, it pains me to say this, I'm a- I'm a great supporter of, uh, national security, uh, related investigative, uh, techniques and methods. I happen to think that FISA provides some indispensable tools that we need to guard our national security, and always, particularly in very dangerous times we live now.

                                                Uh, the civil libertarians have always been critical of FISA, um, arguing that the ex-party nature of the application, and various other factors just, you know, makes it, in fact, uh, a FISC a rubber stamp. As I said, I've (laughs), uh, talking about, uh, admitting some mistakes on my part, I've actually written quite, quite a bit against this notion. My fear is that, actually, most things are not highly scrutinized, particularly in the reauth ... it- it's a guess on my part, in the reauthorization mode. You basically have some very busy Na- Nation Security officials, the- the statue requires, you know, some pre-designated officials to review this, the Attorney General, Deputy Attorney General, the head of our National Security Division, are all very, and I'm not saying they've done anything wrong.

                                                They're all very busy people with hundreds of things to do every day and, I suspect they highly rely on, uh, on the propriety of, you know, two or three people who so generated the application and worked on it, and I- I- I very much doubt, I- I very much doubt if it was brought, for example, to the attention of people who, uh, secured their authorization, uh, that Mr. Steele was terminated by FBI for lying sometime after the original application was filed.

                                                I would be very surprised if this fact was- was flagged for whoever was reviewing it, that it would not have been, "Wait a minute, let's stop ..." and again, you- you- you have to flag things, I mean, having worked, myself, for very busy people in the White House Counsel's Office and DOJ, you can't just them, uh, uh, even if it's written somewhere, a hundred page application, uh, an expect them to- to ferret that out, you gotta stop and say, "Hey boss, I want to bring this one inconvenient truth to your attention." Uh, so, I- I'm afraid the system is not as resilient to misuse, uh, as some of us might have believed, and that is troubling.

Dean Reuter:                     And I think it'd be unlikely for the, uh, reviewing officials to know to ask the right question, uh, in a pointed way, uh, about the, uh, uh, a- a weakness. But, uh, with that, um, we've got-

David Rivkin:                      [crosstalk 00:15:17].

Dean Reuter:                     ... several people ... Go ahead.

David Rivkin:                      Yeah, 'cause, it- it's not natural, you know, when- when I worked for, you know, uh, White House Counsel, C. Boyden Gray, who was a dear friend and a mentor, he trusted me, I worked for many years, he, you, it would not occur to him to say, "David, are you, when you're asking me to do something here, are you on the up and up?" I mean, it's not a, that's not the normal question you ask of- of your trusted subordinates.

Dean Reuter:                     Very good. Once again, if you have a question, push the star button, then the pound button on your telephone. We've got several people in the queue with that, let's take our first question of the day.

Leo Dubrowsky:               Yes, good afternoon, this is Leo Dubrowsky, Chicago Chapter, two questions. One, does the DOJ have an obligation to go back to the FISA Court and disclose what it should have disclosed earlier? And two, does the FISA Court have any authority to sanction, or question, or investigate, uh, those who submitted the applications if the FISA Court thinks that it was deluded?

David Rivkin:                      The short answer, to an excellent question, short answer is yes, and yes. To elaborate, um, I think DOJ and FBI have continuing obligation, uh, to, uh, uh, disclose newly acquired information, and to the extent that it's not even that newly acquired. Newly acquired in a sense, that it's clear to the people who are in charge, now.

                                                Uh, actually, interesting historical footnote in terms of what FISA or FISC Foreign Surveillance Court has done. There have been a number of instances, which it detailed in a pretty voluminous, um, report, uh, the 911, uh, Report that dealt with, among other things, the so-called wall. You may remember before the post 911 reforms, there is a wall of separation between the counter intelligence side, and the criminal investigation side.

                                                And there was some instances where FISC was apparently not told the full truth about the precise reason for initiating what appeared to be a counter intelligence investigation that may have been done in- indirectly to aid a criminal investigation, where they could not get a, the normal Title Free Warrant.  And FISC reacted very negatively to it, chastising the people involved, and if my memory serves me right, banning them from ever appearing before FISC. And, again, the system relies to a tremendous degree on the trust and confidence that everybody's playing by the rules. Because, it's not like FISC is undertaking or is capable of undertaking a separate investigation.

                                                So, we are talking about, instances where there have been some problems in the past. Uh, there have been, uh, uh, corrective actions taken. Some individuals were, you know, terminated or at least not allowed to come before FISC, and it made FISC most unhappy. And as I, again direct you to the Record of the 911 Commission Report. Uh, but, a- again, what's troubling to me, here, uh, a- and I would say, any kind of misleading applications are bad, but this appears to be, at least, as something that's not driven by excessive zeal to, you know, engage in- in- in law enforcement and- and catch some bad guys. But, if it's, as it- as it appears to driven by political motivations, it is enormously troubling.  I- I would put it in the- the hightest level of misconduct, that threatens the legitimacy of this very vital tool, and- and just cannot be countenanced.

Dean Reuter:                     Uh, so this is Dean Reuter, again, once- once again, if you have a question push the star button, then the pound button on your telephone. Um, and let me ask a question, that I think, some of the skeptics m- might want to, might want to hear your response to, and that's, if this is so consequential, if it- if it does rise to such a level of bad behavior, there are, I suppose, two courses. One is to disclose it and air it out.  Um, but I think the skeptics might say the better course here, would be to- to make corrective action privately, and- and to do otherwise, that is to air it out, uh, to go public with this, uh, damages people's understanding, uh, of- of the FISA process.

                                                It- it- it damages their faith in the process, I would say, not their understanding, it probably improves their understanding, but it damages their faith, uh, in that. And then has national security implications.

David Rivkin:                      Well, let me say a couple of things, first of all, let's have faith in the sound judgment of American people and- and sound judgment of the elected representatives. I mean, they're, the American people and- and members of Congress are not children, I think they can, they can stand the truth. There's no reason to, uh, uh, not to apply the best disinfectant, which is publicity.

                                                But I'll also say, Dean, if you, again, if you look at this historically, uh, every time there was a serious concern about major failures, either in the form of misconduct by law enforcement and intelligence agencies, or in the form of intelligence failure, um, the corrective, always involved public airing it, of- of those things. It- it never just involved, uh, you know, some private, uh, uh, actions taken, uh, and- and by the way, I mean, another thing that- that is sort of interesting to put on the table here, we do know that a number of people have been, again, how do we know? Based upon media reporting. Have, been, uh, reassigned, uh, in- in ways that is not exactly indicative of, of them being lauded.

                                                Uh, to just name a few, so you have, uh, Deputy, the former Deputy Director McCabe, who again, according to, uh, the media reporting, uh, instead of being allowed to basically, uh, continue on until March, was told my the Director Wray, that he would m- move him to some other, less consequential position, in the FBI immediately, uh, causing, uh, Deputy Director McCabe to, uh, to basically go on vacation until March.

                                                You had a general counsel, whose name is- is- is Baker, uh, to be reassigned, lesser position again, nobody has been criminally prosecuted, thus far, but, these types of reassignments, do not, uh, don't just occur, um, if everything is- is- is fine. So, yes, there has to be some house cleaning, but it cannot be a substitute for a public airing of these, these issues, and look ... If- if effects turn out to be otherwise, that's useful too. But, I- I- I would not want to sweep it under the rug. That- that would be just, that would be worse. That's the kind of cure that's worse than the disease.

Dean Reuter:                     Let's check in with another caller.

Kurt Levy:                            Hi, um, David, this is, uh, [Kurt Levy 00:21:57], with Committee for Justice, uh, thanks for- for briefing us, um, and, uh, I joined the call in the middle, so, please, uh, forgive me if you've addressed any of these issues. But, you just mentioned criminal prosecution of some of the people involved, um, assuming that it- it would be appropriate to appoint a special prosecutor here, um, who do you think would be the appropriate person?

                                                Would it be Sessions, given that he recused himself from the Russia scandal, but, uh, or I should say, the- the alleged Russian collusion, but that, doesn't mean he recused himself from, you know, all wrong doing, uh, connected to it. Um, or, would it- would it be the DAG?  Um, and then two, would it be, uh, more appropriate to find a new, uh, uh, someone new, you know? To have a- to have a parallel investigation to Mueller, or just to, uh, you know, give that responsibility to, uh, to Mueller? Um, or, I guess at the other end of the spectrum, um, you know, I don't expect Mueller to be fired, given this, you know, just given the political considerations, but could you make a legal argument that, um, you know, through some, um, you know, fruit of, uh, fruit of the, you know, a now, uh-

Dean Reuter:                     Poisonous tree.

Kurt Levy:                            ... discredited branch, uh, that- that the Mueller probe should end?

David Rivkin:                      Well, uh, several things, let me tackle the last one first. I understand the fruit of a poisonous tree argument, but, I- I certainly, uh, am not prepared to say that, uh, this demonstrates any kind of ... and not prepared to say, prepared to say affirmatively, that it doesn't manifest any misconduct on the part of, uh, uh, Special Counsel Mueller, or anybody's working for him right now, since he dismissed, uh, Peter Strzok and- and Lisa Page, so, I think that's, that- that frankly, is sort of another misdirection by the critics who are sort of saying this is an effort to eviscerate the Mueller investigation. Uh, I- I don't think it is really that at all, that's point number one.

                                                Uh, as to what should be done, I think it should be thoroughly investigated. I think it should be investigated beyond the IG, uh, exercise, um, and the right person to investigate this, I think, I- I'm not a big fan of special counsels, again, having written about this, so, I- have to eat my words a bit. Um, but I- I think probably, hire a special counsel or somebody brought from the outside, even if technically, is not the Special Counsel, should drive this. I would not give it to Mueller, since it's really of, some sense, a- a very different, a bit related, but very different, uh, investigation. He's got enough on his plate.

                                                I would say, whoever is investigating is, should be somebody, you know, a former US Attorney from way back, who has absolutely no relationships with, uh, the current senior career, uh, and- and- and- and, uh, people with DOJ or FBI. Because, it's, again, it- it not only has to be fair and thorough, but it has to have an appearance of fairness. So, I would not, I would not, bring somebody who just retired, you know, a couple of years ago.

                                                Uh, as to who should appoint that person, look I've not seen, (laughs) I've not seen obviously, the, uh, precise parameters of the, uh, uh, recusal, uh, letter, uh, that was, uh, executed for the Attorney General. So, I- I- I cannot, I don't really know, whether or not it's in, uh, a, it's in his, uh, on his page, so to speak. If he is not recused from taking this action, then he would be the- the right person. Uh, if Rosenstein, uh, if- if he is recused, uh, because of a breath of- of- of recusal determination, then Rosenstein should do it. Or it could be done by the Associate Attorney General, who is Rachel Brand, if I'm not mistaken.

                                                But I mean, that to me, is not, particularly important question, the important question is, that it should be thoroughly investigated, uh, and it should be done by somebody who is known for propriety, but also, as I said, not a- a recent, uh, uh, retiree, from either the FBI or- or DOJ, and again, a- a former US Attorney, somebody that's been gone for, you know, ten or 15 years, uh, would be a- a good bet, in my opinion.

Kurt Levy:                            Another very quick question, you had said that there's absolutely nothing plausibly in that memo that would, you know, raise national security concerns, uh, uh, you know, if disclosed. Why do you think the Justice Department, uh, or the FBI, I should say, uh, made that argument, given that they knew the memo would eventually come out and would show that to be wrong?

David Rivkin:                      Well, gosh, how to put it gently, uh, uh, two things. First of all, it's very clear that the FBI and DOJ did not want this to come out. Uh, and- and done all they could, uh, and the first thing, which also are troubling, that it took a year to get, at the information that caused, HPSCI, House Permanent Select Committee on Intelligence, uh, to take this action, uh, that and- and if I'm not mistaken, they, uh, they had to issue a threat of holding, uh, the FBI Director in contempt. Um, and probably the DAG as well. That's pretty unusual.

                                                So, they- they've been resisting this nightly, uh, and again, it's not a good sign. I'm not prepared to say that, that disposes of everything, but, it- it's not a good sign. Typically, uh, human nature being what it is, you don't try to hide something, unless you find it painful and embarrassing. Now, uh, as to why they said that it would compromise sources and methods when they know that once, any- anybody who has any experience in National Security reads this memo, uh, you know, people say stupid stuff, hoping that, you know, uh, it- it would not happen, that they would be able to stifle the release. Look, we- we know that they went to the trouble of going to a, uh, uh, uh, to Paul Ryan, to try to get him to over ... you know, in- in fact, override the judgment of the, uh, of a HPSCI Chairman, Congressman Nunes.

                                                So, um, they just did their best to stop it, and they tried to throw as many arguments, hey look, the argument is gonna embarrass us, but itself, it's kind of embarrassing, no pun intended. So, waving, the, uh, the- the national security shirt is kind of useful, but, as I said, it's a joke. I mean, uh, if- if you look at the, e- e- extent to which things have been released, uh, very, very recently, uh, uh, about far more sensitive matters. I- I don't see anything here, n- nothing, (laughs) that compromises any sources and methods. Could be wrong, I suppose, I'm- I'm a lawyer, not a, uh, not a, you know, i- intelligence professional, but I- I just don't see it.

Dean Reuter:                     Several questions pending-

Kurt Levy:                            Thanks David.

Dean Reuter:                     ... so, let's keep moving forward.

Don Perdue:                      Hi, uh, my name's Don Perdue, I'm a lawyer in practice in DC, I have, uh, two related questions, uh, the first is. Does Carter Page have a viable action under Section 93? And then the second question is, um, what statute was Page alleged to have, um, violated that justified, you know, wire tapping him, what was the, the evidence that he violated the probably cause, that he violated that statute, I've never been able to find that in any of the news reports. Thanks.

David Rivkin:                      Well, sure, the- the first, well, the, uh, the first question is, I don't know, it just, it depends on what comes in- in- in- in the investigation. I don't think he has, he has a, uh, an ability to mount a legal challenge now. As to the second question, I'm actually looking at the section, it's, uh, Section 1805, uh, 50 USC, that, uh, just read very briefly, the pertinent language. So, uh, uh, you- you- you basically, uh, apply having, you know, uh, asking FISC to make a finding, and, uh, the- the standard is and it's been held to be f- f- for in the context of a proper application, Fourth Amendment Compliant, that on the basis of the facts submitted by the applicant and we know who the applicant here is, there's probable cause to believe, that, um, Mr. Page, in this case, is an agent of a foreign power.

                                                And there are some other caveats about the fact that it cannot be on the basis, so, or on the basis of, uh, so- solely on the basis of activities protected by the First Amendment, so, uh, et cetera, et cetera. So, that's how the process works, and as I said, this is a process that's very, very vital to our national security. It has drawn criticisms in the past and- and you know, there have been people wanted great transparency, we talk about having ombudsman, uh, sort of be a fly on the wall opposing, uh, various requests made of FISC. Uh, again, I've always criticized that thinking, that it would be, impair their efficiency too much.

                                                But, this- this is very troubling. Very troubling. And- and I tell you, if- if it turns out, as I suspect it will, that serious misconduct occurred, my anger would be, in large part, not, just because of the offense itself, but because of the harm that the people who have done that have caused to the legitimacy of this type of an effort. That- that just inexcusable, and they are the ones who truly are damaging the reputation of the institutions and the process, not the people who are suggesting that the investigation is needed. That's kind of ass backwards, if I may.

Dean Reuter:                     Um, we've got six or seven questions pending, so let's continue to roll through them, as we may. Go right ahead, caller.

David Huber:                      Uh, this David [Huber 00:31:49], David in Atlanta, does the last FISA Judge have the ability to vitiate the warrant, and can he sanction the parties that appeared before him?

David Rivkin:                      Well, I mean, FISC, yes, of course, uh, uh, well, I like call it an Order, but, anyway, call it a warrant, uh, yes, a warrant can be withdrawn, uh, I- I believe, uh, if- if a FISC Judge is, uh, uh, is aware, that it was improperly obtained. As to what, you know, uh, and, as I mentioned earlier in the call, based upon examples cited in the 911 Commission Report, there have been reprimands, and- and various other things that FISC has imposed on the individuals who mislead it in the context of (laughs) very same types of applications.

                                                Now, if you ask me, more esoteric question, can- can you actually punish somebody, you know, does a FISC Judge have contempt power? Look, they're all Article III Judges, at the trial level, they're District Court Judges, at the Appellate Chamber of FISC, they're Appellate Judges. I mean, uh, Federal Judges do have, formidable contempt powers, um, I honestly don't know, though, if it would work, or how it would work here, because they're not functioning as District Court Judges, they're wearing a different hat. Um, but it, it's an interesting question.

                                                I don't know if it ever occurred, uh, if it ever, if sanctions were ever imposed, beyond, you know, chastisement, and sort of, bu- bureaucratic humiliation and- and institutional demotions. Um, but I can tell you, if- if- if- if an investigation shows that it was not just sort of a sloppy, but it was deliberate omissions, uh, uh, there is, uh, certainly, an opportunity to prosecute individuals involved, uh, under, you know, uh, using, the, you know, the- the perjury as a cause of action, or at the very least, uh, you know, failure to provide, uh, accurate information to a government, which is 18 USC 1001.

David Huber:                      Thank you.

Dean Reuter:                     Once again, if you have a call ... a question rather, push the star button, then the pound button on your telephone. Take another question now.

Ken Cuccinelli:                   Hey David, this is Ken Cuccinelli, thanks for your run down.

David Rivkin:                      Thanks again.

Ken Cuccinelli:                   It's good to hear from you.

David Rivkin:                      [crosstalk 00:34:11].

Ken Cuccinelli:                   So, um, one of the things in the memo, at the very bottom of the first page, lapping on to the second, and we've had a little discussion here about it, is the stated expectation, but Congressman Nunes, that, um, information that may have been helpful to Page's side of the consideration of the FISC, as to whether or not to grant or reject the, uh, the requested warrant, was not shared. And he seems surprised by that.

                                                Now, I've litigated, I've at least file motion, in- in the FISC, but I haven't been on the government side. My impression, and I'm happy to be corrected, or, uh, or- or validated, as you see fit, (laughs). Is that, the, I'll call them prosecutors, but the prosecutors who go into this process do not feel obligated to share everything with a Judge, in much the same way a prosecutor in a fairly traditional criminal case would not feel obligated to share information that is anything other than supportive of his or her request for a warrant. Um, is that somehow different in the FISC than it is in ordinary criminal process?

                                                And I would just note, for everybody else on the call, that what I view as the big difference is that in an ordinary criminal case, at some point, the defendant gets to address these questions, but not in the FISC. So, I'm curious for your perspective.

David Rivkin:                      Again, you- you and I are in- in- in wild agreement. Uh, let me explain, a little bit, and apologize if I'm technical for the non-lawyers, here. So, what Ken is referring to, of course, there's- there's Brady obligation under a famous Supreme Court case to provide exculpatory evidence, uh, in the context of criminal prosecution, sometimes it doesn't work that well, but, prosecutor's get in trouble for that, and justifiably so, and- and Ken is absolutely right, that, uh, one, de- despite all of our rigors and unpleasantness to recuse through a criminal process. In the criminal process they do have an opportunity to get through Brady and in- in- in discovery, uh, to get at- at the truth and be able to be exonerated. That is not the case with FISC.

                                                I would also say that in my opinion, of all, I- I certainly wouldn't use the Brady standard, or, you know, it's an elegant intellectual question, since the information obtained through FISC granted Orders can actually be used for criminal prosecution. I mean, maybe one can infer some kind of a Brady obligation at that stage, but, 99% of the time, it doesn't get so used. But, I would say this, both to, maintain the legitimacy of this process, and to reassure the American people that everything is- is- is proper, I would expect a high level of, uh, of compliance, with- with fullest disclosure requirement, Ken, in this context. Why?

                                                Well, you have an adversarial context in criminal prosecution, you're prosecuting somebody, or, you know, hardworking AUSA, you think you got a bad guy in your sights, and you kinda balance your obligations under Brady to being able to win, because you think this bad guy's a bank robber, he's a Ponzi schemer, he's a rapist, he's this, he's that. There's nothing like this here, all you're doing here, basically, is you're trying to get information in the context of, uh, of- of telling FISC everything you know. There's nobody you're sparring with. The only, you're only interlocutor is FISC itself, so, I would, I would say, if anything, more disclosure is needed here. So, the fact that it hasn't occurred, uh, that it, at- at best, it was incomplete, uh, is- is- is more troubling to me thank less than fulsome compliance with, uh, with Brady requirements. Does that make sense?

Ken Cuccinelli:                   Well, oh, it absolutely does, and I would agree we are in vehement agreement, but I- I, what struck me, um, is first of all, I don't assume that these prosecutors do turn everything over to FISC, and I never have. Um, but it's surprising to me that the Congressman, the head of the Intelligence Committee, seems to presume that happens, and he's just wrong about that. And he's the head of the House Intelligence Committee.

                                                It- it hearkens back to, um, when Snowden's revelations came out, Congressman Sensenbrenner, who played such a significant role in drafting that part of the Patriot Act, was shocked to learn the extensiveness of the, of the, uh, of the snooping on all of us, and including on this call, that our government was doing for years and years and years, gathering up all of our cell phone data, everything except the words that we were saying to each other. Um, and the guy who wrote the law was shocked to learn that. And so, here we again, have a Congressman, who, who seems surprised that the ... that there isn't more disclosure that they never have required when they've reauthorized FISA and the FISC.

David Rivkin:                      Right, well-

Ken Cuccinelli:                   And, I mean, it screams out for reform. Screams out for it.

David Rivkin:                      Yeah, well, I- I agree with you. You're obviously talking about the metadata collection, the Section 13 of the Patriot Act. I, look again, this is, these are very delicate matters, which is why I am pretty mad. Uh, n- not just at the, a sort of political partisanship, but what it would it lead to. Because, you're right, if there is an investigation, I'm pretty certain, there will be one. And it turns out that, "Hey, look, our defense is, yeah, we didn't provide all the information to FISC, we- we- we hid, uh, the information that would have caused them not to authorize this Order. But, we do it all the time." I mean, that's a hell of a poor defense.

                                                I mean, that is, that is, very unfortunate. It's sort of saying, you know, in- in response to perjury allegation, well, it's nothing unusual, I perjure myself all the time. So, I- I- I- I hope it's not the case, uh, and- and again, look, there th- th- th- th- the nuances matter. The question is, you know, did you not disclose some small tidbits, some, minor detail, or did you not disclose something that was highly probative.

                                                To me, the fact that he was working for, uh, DNC and Hillary Clinton's campaign is enormously consequential, but, back to the point of, uh, the fact that during the- the subsequent application or reauthorization, uh, they never told FISC apparently that he was terminated. You know, terminated, we're not, we're talking about somebody who's an informant for God's sake, we- we're it's a pretty, you know, it's a pretty low bar, uh, 'cause, informants often have done bad things in their previous careers, but at the very least, FBI, or police department, any law enforcement agency would expect them to be straight, uh, with them now, otherwise, what good are they?

Ken Cuccinelli:                   Right.

David Rivkin:                      So, that is just horrible failure on, uh, in- in- in my opinion.

Ken Cuccinelli:                   Yeah, thanks, David.

David Rivkin:                      Sure.

Dean Reuter:                     Once again, if you have a questions push the star button, then the pound button on your telephone, we've got about 20 minutes left, quite a few questions lined up, we'll get to as many as possible. Go right ahead caller.

David:                                   Hi, my name's David from Berkeley California. And I wonder if, uh, you have thought about the possible connection between what's come out in this report and the, uh, widespread unmaskings that took place in the last days of the Obama Administration?

David Rivkin:                      I have, in fact, I mentioned earlier, perhaps, I was, uh, uh, a- a little overly generic that one of the interesting question, questions is, whether or not this flawed application process was part of a broader effort that included unmasking, uh, and leaks, uh, unmasking. You know, uh, both internally, which, of course, is, also quite- quite regulated there, you know, specific statutory criteria for when unmasking is appropriate. But they-

Dean Reuter:                     David, David, it's Dean, I wonder if you could, for our audiences benefit tell- tell us what unmasking is?

David Rivkin:                      Sure, unmasking, re- re- refers to the process where, uh, you are disclosing, uh, two, two things, disclosing the id- i ... it works in two ways. First of all, disclosing the identity of a person whose phone call or, uh, an email has been intercepted. The general rule is, that you're not supposed to disclose .... and then the people who, see if, of course, are, you know, fairly junior career people, of absolutely no, policy axes, or political axes to grind.

                                                So if Dean, Dean Reuter, for example, if you, if- if you were being surveilled, your name would not be disclosed to anybody else in the government, absent, absent a determination. It has to be done in good faith. That knowing who you are, is essential to understanding the cont ... would improve the context, the content of- of a conversation, that happens, uh, uh, that happens r- rarely, and I- I remember vividly, uh, uh, some folks being criticized in the past, during confirmation hearings, because they made, you know, half a dozen, uh, unmasking requests.

                                                I'm particularly thinking about John Bolton's confirmation, uh, where he was not confirmed for the, uh, uh, US Ambassador for the United Nations, because when he was Undersecretary, of- of State, he asked, uh, for, I'm thinking, fewer than half a dozen occasions to- to disclose the names of people who wiretapped, to put the conversations in context.

                                                The second context, the second part of the, um, of unmasking would be exposing the identity of another person who is involved in this conversation. Because, remember, Dean, you never talk to yourself, unless you're, I suppose, mentally ill, so there's always a second party of a conversation. And that party is being captured, incidentally to the collection driven by you, if you're the, if you're the target of surveillance. So, disclosing both, the identities of either the person who is being surveilled, or the name of the person with who, the, uh, target spoke, and- and disclosing then, the content of a conversation by the other side. These are all violate unmasking.

                                                The one thing, I would say, I don't have a precise number, but I've seen newspaper stories indicating that literally dozens of unmasking requests have been made, uh, in the final months, uh, and weeks of the 2016 Presidential Campaign, which is highly troubling. And if I were investigating this, my question would be why? Why, oh why, are you doing this?

                                                And the second of all, typically, unmasking, uh, is being sought by let's say, mid level or senior analysts, who are trying to come up with some analysis, some report of what's really going on. And they would say to more junior people, look I'm the world's greatest expert on Persia, so, I kinda of want to know, which person was talking to, Ahmadinejad, on the US side, gives me some extra, uh, analytical umph, but why, oh, why, would a National Security Advisor, who is not an intelligence analyst, and does not write reports and is sort of a big picture person, why would a National Security Advisor be involved in unmasking, uh, unmasking people? Uh, I- I- I frankly cannot think of very good reasons.

Dean Reuter:                     Looks like we've got three questions pending, so let's continue on our way.

Speaker 9:                           Hi David, uh, building off of the last question a little bit, the memo does not tell us exactly who the FBI surveilled, with it's now authorized surveillance, so, for example, was the surveillance limited to Carter Page, or did it extend to, uh, President Trump, his family, his campaign team, and then later, his transition team? Um, and, uh, are we likely to ever find that out, because if, if they got to surveil the entire apparatus of the campaign, solely on the basis of Carter Page, and this dossier, that would truly be an enormity.

David Rivkin:                      Well no, okay, good- good question. To clarify, I probably should have done them by now. The way things work, if you are the target, okay, they surveil you and they surveil various communication devices you use. But, inevitably, it, uh, captures, con ... your conversations with everybody, your family members, your colleagues, and if you're involved in a campaign, a campaign officials, and it's highly predictable that, that would happen. Which is, I don't think that they sought to obtain an independent targeting order on, you know, President Trump and various other people, but they certainly knew, that, by surveilling Carter Page, they would obtain a- a wealth, or capture a wealth of conversations involving other campaign officials.

                                                And that's what gives me considerable pause, particularly given, the- the- the date, which this application was sought. So, I mean, look, uh, President Trump was much maligned and criticized for saying, you know, "They, they wiretapped the towers," as a technical matter, he- he is wrong, but as a piratical matter, he is not, because if you have, uh, uh, FISA orders and a couple, like Carter Page, like Papadopoulos, uh, you pretty much capture everybody they talk to. And then, if you read all of this, uh, and then if you leak a bunch of things, it produces basically the same results. Does that make sense?

Speaker 9:                           It does, thank you. What, one more question, and I defer to you and Ken on practices of prosecutors, but it also seems to me, every FISA Court is a Federal Court, and every Federal Court has a Bar, uh, which the lawyers appearing before that court have to be a member to, and every Federal Court in the coun- country has adopted, uh, Model Rule 3.3, Absolute Candor Towards the Tribunal.

                                                And that rule covers, not just, uh, positive misrepresentations, but omissions of material facts, uh, and it even ex- explains that, that duty, uh, extends to the end of the proceeding. Uh, and that if you, com- come- come into information, uh, that the court should have to fill out the picture that you have a duty to do that. And so, might any of these applicants or affiants, uh, be subject to some sort of disbarment as a result of this?

David Rivkin:                      Well, two things, again, I don't frankly know, uh, it's been a long time since I've been in the government. Uh, I don't know if there is a, I doubt very much there's a "bar", here, because, to explain this, uh, is a highly classified process and the people who can apply to FISC and they have to run it for the gauntlet of the National Security Division, uh, of the Justice Department, there is a- a very small number of people. What I said before, and the 911 Commission Report describes it, and FISC Judges felt that somebody was lying to them, they would basically say, "We never want to see this person." 

                                                Uh, I don't kn- know if it, it's not really a formal debarment, in a sense, where you- you- you- you send some, you know, complaint to the person's, you know, bar association, if you were from, you know, Maryland, or Virginia, or whatever. But, look, I- I agree with you, I- I think, and by the way, it's an interesting que- question, I- if I were, a- a- a- FISC Judge who approved this application, and I'm reading over stuff now, I would pretty hopping mad, and I may say, "Well, all right, let me see, which way it unfolds," but, uh, uh, I- I- I would want kick the tires and lose myself, because, you're right, the- they- they have absolute obligation to, uh, full- full- full disclosure to- to a court.

                                                And as you heard my exchange with Ken, I think this obligation actually is higher in the- in the FISA context, and particularly high if you are going to the trouble to of asking in October 21, 2016, for a FISA Order targeting a person who you know is going to talk a lot, but with campaign officials, you better really cross every T and dot every I. And I don't know, I don't know of any reason not to. I don't. I mean, I've not heard anybody make the- the ... articulate any good reason.

Speaker 9:                           Well, thanks, David.

Dean Reuter:                     Less than 10 minutes. Uh, still three questions pending, so, let's see if we can get through as many as possible.

David Rivkin:                      Shoot.

Dean Reuter:                     Go right ahead caller.

Speaker 11:                         Hello, David, what are the chances that Dana Boente will be, uh, confirmed as the FBI General Counsel and what are the chances that he remains, as the Acting AAG at the National Security Division?

David Rivkin:                      I have no, I really no idea, and unlike some other folks, I don't want to, impugn anybody's, uh, uh, uh, character, [inaudible 00:51:17] him in a damn good, uh, bit of evidence, so, I've no idea if he's in any way in- in- involved in anything. Now, if you're asking me as a practical judgment, and I'm not a political pundit, whether or not there may be some kind of a hold on a lot of, uh, nominations, uh, confirmations that's heretofore has been slow walked by the Democrats.  If Republicans start slow walking people, uh, it's possible, but, I mean, th- this is an unfortunate in my opinion, because God knows, one of the huge problems for this administration has been, uh, the base of judicial confirmations, which has been quite high, and thank God for that. But the base of- of- of folks to fill Article II positions has been appalling, the worst I think, in- in decades. And, how the hell can an administration function when- when senior national security officials are not confirmed. But, uh, uh, it's I do, as to your, uh, already asked [inaudible 00:52:09] question, I absolutely have no idea.

Speaker 11:                         Would the, would the Bureau even want him to testify, though, in open committee? And, at a confirmation hearing?

David Rivkin:                      Well, that's- that's a fair point, again, again a very practical and pragmatic point, God knows, confirmation hearings have been, uh, known to be used for trying to get out at information that a large agency does not want to, uh, or department does not want to disclose. It's a mess. It is- it is a mess. Uh, uh, not the worst possible thing in the world, but, yeah, it's- it's challenging. (Laughs). It's challenging.

Dean Reuter:                     Just a few minutes left now, and it, uh, looks like three questions pending, so let's continue to work through these. Go right ahead caller.

Speaker 12:                         Thank you for a really good presentation. Uh, like Kurt Levy, I came in a little bit late, so, uh, forgive me if I, if you've already covered this, but, uh, if- if you were to look at what's in the, uh, the memo, that was released, as, uh, uh, let's call it a movie, uh, Abuse of phys ... of Official Position, isn't that already the sequel to the whole previous one, where they let, uh, Clinton off the hook on the emails. And what I wonder is, what's the, uh, is the, conduct described in the memo, uh, more aggravated because of the, of the, the first, uh, edition, that is the abuse of official position with respect to the Clinton email investigation?

David Rivkin:                      Well, look, I- I understand the question, let me just say, and I'll choose my words carefully here, um, 'cause I- I want to focus on- on what we do know for sure. Which is what, in- in this memo? Uh, uh, and your point is, that it may well have been a part of a broader conspiracy if you will, by I mean, I- I think, Senator Johnson, if I'm not mistaken used the word cabal and was much pilloried for this.

                                                But, let's use the term provisionally, by cabal, with folks within the FBI and DOJ, who first, uh, somehow, squelched investigation into the Clinton Foundation, and there are certainly stories that, a- a number of FBI agents felt that this investigation was being stymied, and was not being allowed to proceed. And then, did the same thing investigation to Hillary's server, and what happened then is that they were trying to ensure that, uh, Trump would lose, and Hillary Clinton were to win, not necessarily because of some ideological field, they were just in the theory that their misdeeds would not come out, however, their misdeeds directed to help Hillary Clinton would not come out, quite with as much gusto, as much vigor if she was the president.

                                                I've heard those, a- allegations, they're not implausible, but, I mean, if, uh, a- a, you know, I don't want to sort of go out, and- and- and start saying this is what- what- what has happened, or appears what has happened, because, these are, at this point in time, uh, not, put- put this way, the- the- the broader theory is nowhere close to being well substantiate, as well substantiated as the problem with the FISC application for surveillance order on- on Carter Page, so, that's why I'm kind of emphasizing this, but again, I mean, there are lots of stories out there, about- about how one misdeed, one corrupt egg, begets another and how it's all tied up.

                                                And, uh, but- but, I mean, uh, let me just finish this question by saying it- I- I do wonder, why, this misconduct occurred, because, as I said, the- the allegation that they just had a bunch of people there, who were naturally hostile to, uh, uh, to Donald J. Trump is just kind of hard to credit. Um, so, the notion that they did it for some other and decedent reasons is certainly not implausible, but we- we- we don't know that. We don't know it for- for sure, or even close to being for sure.

Speaker 12:                         Thank you.

Dean Reuter:                     Still have a few questions pending, we'll get to as many of you as possible. Go right ahead caller.

Speaker 13:                         Hi David, I was hoping you could, uh, poke holes in this analogy.  [inaudible 00:56:26] what people think of, uh, a prosecutor who is going to the Justice Department to get warrants, having to do with terrorism. Would an observant Jew or Christian, that did the investigation have to have his religious affiliations and commitment, uh, revealed to the FISC Court by, uh, prosecutors, or investigators looking to obtain a warrant? Again, say, say Muslim suspect.

David Rivkin:                      Well, uh, I would say, certainly, any government action cannot be tainted by- by constitutionally prescribed animus. Uh, the point number one. Point number two, to the extent that, uh, you- you're- you're going up to a person because of his or her personal [inaudible 00:57:09] activities, the- the statute language itself requires you to assure FISC that, that is not the case. So, but I, I'm a little confused, uh, is- is there, uh, some notion that Carter Page was targeted because of his religion? Uh ...

Speaker 13:                         No, and- and like I said, this was a analogy, rather than, uh, anything having to do with this case. I think the, uh, complaint is generally that, uh, you know, there was a partisan affiliation, with some of the folks, uh, that provided evidence that was used to obtain the FISC warrant. And I'm wondering if there's a difference between partisanship and religiosity?

David Rivkin:                      Well, there is. I mean, look, I know, you can have a long conversation about, uh, uh, you know, uh, or look, everything the government does should be driven by fairness and due process and no bias of any kind, but obviously, uh, we all lawyers know, that there is a difference between certain types of biases that, uh, uh, deal with so called protected classes, or protected categories. Uh, talking about race, gender, ethnicity, and [inaudible 00:58:17] that's national origin, uh, you know, and things that typically trigger strict scrutiny or, you know, things like, uh, sexual orientation, that, who knows these days, maybe strict scrutiny, used to be intermediate scrutiny?

                                                Uh, the political, political bias is certainly have not, uh, are not quite in the same basket, but, I, but I mean, it doesn't they're- they're [inaudible 00:58:40], uh, as you know, probably in the 1980 free context, which is a part of a 1964, uh, uh, or '65 Civil Rights Act, uh, not 19, excuse me, 1865 Civil Rights Act, post Civil War. Uh, you can bring a- a cause of action, uh, uh, a lawsuit against state officials and actually litigate it in the space alleging that they were targeting you because, uh, for ideological reason, in effect, uh, therefore discriminating based on the content of your speech, so you can, you know, you jump through for the hoops about abstention, and immunities in various other issues, you can get yourself a handsome recover, but, anyway. That's probably too much information. (Laughs).

Speaker 13:                         Thanks, I just wanted to point out that we have to be careful about how broad, uh, how wide the net we cast is, when we complain about, uh, prosecutorial bias.

David Rivkin:                      Yes, I- I- I understand, not- not all biases are created the same, but, the, this a very dangerous, uh, this is a very, uh, uh, again, we're not talking about a Title III warrant, bringing somebody who burgled an apartment, and, uh, you know, the prosecutorial bias, maybe I'm just so tired of all the damned, you know, criminals that I have to deal with, you know, to hell with due process, it's troubling enough. We're talking about, uh, something that touches upon, you know, the elections that are at the very heart of our Democracy.

Dean Reuter:                     Well, uh, Mr. Rivkin, we are out of time, um, we still have a couple of questions pending, uh, that probably argues in favor of another call when we have uh, another, uh, big development in this matter, so, uh, I- I certainly appreciate and I want to thank you on behalf of the Federalist Society and our members, uh, you're joining us, especially on such a short notice for this, sort of breaking news Teleforum Conference Call, so, thank you so much, uh, this has been very elucidating. Also, thanks to the audience, uh, for dialing in, and for your thoughtful questions. Uh, a reminder to check our website, and the, uh, monitor your emails for the schedule of the next upcoming Teleforum Conference Call, but until that next call, we are adjourned. Thank you very much, everyone.

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