The Nunes Memo: It’s ridiculous and it damages the country, but it might work

It’s hard to parody the right-wing media’s hype of the memo written by House Intelligence Committee Chair Devin Nunes, which was released Friday. Sean Hannity says it constitutes

irrefutable proof of a coordinated conspiracy to abuse power by weaponizing and politicizing the powerful tools of intelligence by top-ranking Obama officials against the Trump campaign, against the Constitution, and against your Fourth Amendment rights. … It proves that the entire basis for the Russia investigation was based on lies that were bought and paid for by Hillary Clinton and her campaign. The Mueller investigation does need to be shut down and the people responsible, who we will name tonight, many need to go to jail.

If that’s what Trump and his defenders need this memo to be, they should never have released it, because as soon as people read it (at 1300 words, it’s about half the length of this article) they’ll see that it doesn’t do any of that. The idea of a shocking memo the Deep State won’t let you see is far more effective than the weak document they actually have.

Why the memo’s argument is weak. In brief, here are the problems with it:

  • The memo insinuates more than it actually says.
  • It is based on classified documents that can’t be checked by the press or the public.
  • A parallel memo written by Democrats who have seen the documents has not been released, and may never be.
  • The facts in the document have been cherry-picked from a larger collection of facts that may not support the memo’s claims.
  • Even if everything claimed in the memo is true, it’s not clear what difference it makes to the Mueller investigation. Nothing in the memo indicates that the Mueller investigation is fundamentally flawed or that its conclusions will not be valid, and certainly nothing justifies Hannity’s claim that “many need to go to jail”.

The fundamental argument of the memo — every point of which is suspect — is that in October, 2016, a FISA warrant to wiretap Carter Page, a foreign policy adviser who had already left the Trump campaign — was obtained under false pretenses. Here are the main points:

  • The Steele dossier, which was partially paid for by the Clinton campaign and the DNC, “formed an essential part” of the FBI’s application to a FISA court. You’d have to see the (still classified) application to know whether this is true. Democrats who have seen the application say it isn’t. People with experience in the FISA system say it’s unlikely: FISA-warrant applications are seldom based on a single source, and standard procedure would be for the FBI to try to verify Steele’s claims themselves rather than simply accept his report. (A piece of the memo that appears to be damning actually is not: “Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.” If that information was independently verified by the FBI rather than simply trusted, the source is irrelevant. For example, police may not trust an anonymous tip, but if the details check out it may lead to action.) Cato Institute’s Julian Sanchez raises an interesting point: Precisely the falseness of Nunes’ claim might make it hard to refute in public. The application itself might have to stay classified because the other sources might be spies or wiretaps that the Russians don’t know about yet.
  • Neither the original judge, nor any of the three judges who approved 90-day renewals of the warrant, was told who paid Steele. However, they (or s/he; we don’t know whether the renewals went back to the same judge) were told that somebody paid Steele. Given what’s in the dossier, I doubt the judge was shocked to discover later that the somebody was one of Trump’s political opponents. (The Wall Street Journal reports that “the FISA application disclosed that Steele was paid by a law firm working for a major political party.” According to Glenn Simpson’s testimony to two congressional committees, Steele himself might not have known who commissioned his work. He could probably guess, but if so, so could the judge.)  Also, FISA judges can ask questions; they don’t have to accept what is handed to them. So if a judge thought the identity of Steele’s ultimate client mattered, s/he could have asked.
  • Steele was a “less than reliable source”. Until he retired to form a private research firm, he headed the Russia desk at MI-6, the British equivalent of the CIA. Again, Steele’s reliability is only relevant if the FBI, and then the FISA court, simply took Steele’s word at face value, with no other probable cause to be suspicious of Page. We have no reason to believe that they did.
  • Steele was biased against Trump. The memo quotes (in bold type) a Justice Department official who talked to Steele weeks before the election, saying that Steele “was desperate that Donald Trump not get elected and was passionate about him not being president.” The Republican narrative claims that this bias caused him to fabricate evidence that Trump had been compromised by the Russians. However, as a UK citizen, it’s not clear why Steele would start his investigation with a passionate partisan bias against any American politician. The story makes much more sense if the cause-and-effect runs the other way: Steele (whose MI-6 career had centered on battling Russian intelligence) was desperate that Trump not become president because he had seen evidence that Trump was compromised by the Russians.
  • The existence of a parallel investigation of another Trump campaign person, George Papadopoulos, was used to justify the warrant, even though the FBI had no evidence that Page and Papadopoulos were working together. They don’t have to have been working together to make Papadopoulos relevant, because the connection could be on the Russian side. (Josh Marshall: “This strikes me as really obvious.”) The fact that Russian operatives were in touch with one Trump campaign adviser makes it more credible that they’d be in touch with another.

Unsupported assumptions. Now let’s look at the gap between these claims and Hannity’s. The memo doesn’t even claim to prove anything,  it just “raises concerns”. (That’s a wiggle-phrase that will allow Nunes to back away later when this all amounts to nothing.) And to get from these “concerns” to an invalidation of the whole investigation, you have to make a further set of assumptions that the memo doesn’t support at all:

  • The Carter Page FISA warrant is at the root of the whole Mueller investigation. The Nunes memo itself says this isn’t true: “The Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016”. In other words, the FBI had already been investigating possible collusion between the Russians and the Trump campaign for five months when it applied for the Page FISA warrant.
  • The information in the Steele dossier is false. The Nunes memo does not contain any evidence that undermines Steele’s claims. Much of what’s in the dossier remains unverified, but much of it has turned out to be true, and very little has been proven false.
  • If there is bias at the FBI then the Mueller investigation’s findings will be false. Ultimately, the output of the investigation will be a collection of evidence, expressed in indictments and/or a report to Congress. Whether the investigators were happy or sad as they found facts that were good or bad for Trump won’t matter. Referring to the Trump-criticizing texts that the FBI’s  Peter Strzok and Lisa Page sent back and forth during the course of their office affair (cited by Nunes as demonstrating “a clear bias against Trump and in favor of Clinton”), former federal prosecutor Patrick Cotter commented: “I guess I’d ask how the existence or content of emails between two people at the FBI could possibly change any of the facts. What [former national security adviser Michael Flynn] said matters; the circumstances of his resignation matter; [attorney general Jeff] Sessions’ actions, the facts surrounding Comey’s firing and Mueller’s appointment; all those facts matter. What two people at the FBI not directly involved in any of these events said to each other does not matter.”

On that final point, flash back to the Starr investigation into President Clinton. Kenneth Starr was clearly a political enemy of Clinton; there was not even an appearance of impartiality. And yet, in the end the facts were the facts: The evidence showed that Clinton had an affair with Monica Lewinsky, and it didn’t show any wrongdoing regarding the original subject, the Whitewater deal.

The price of the memo. The Nunes memo gave Trump’s supporters a few days’ worth of talking points, but it damaged the long-term relationship between the intelligence services and Congress. To understand how, you need to appreciate a little history.

After Watergate, Congress began searching for ways to reassert its own power and limit the executive branch, which was seen to have been running out of control even before Nixon. One result was a report issued by the Church Committee into decades of CIA covert actions, which included coups and assassinations. The public outrage that followed led to an increased oversight process involving the House and Senate Intelligence Committees, which get far more information from the CIA, FBI, and other intelligence agencies than Congress previously had access to.

To make that system work, Congress had to overcome the deep skepticism that the intelligence services have about politicians, especially the belief that it is dangerous to share secrets with them, because they will leak those secrets for political advantage. So there are elaborate processes for protecting the secret information the intelligence committees receive.

As always in democratic governance, rules only work if they are surrounded by a penumbra of unwritten norms embodying the spirit behind the rules. In other words, there are things that “just aren’t done”, even if the rules would technically allow them.

The writing and release of the Nunes memo violated these norms. The technical rules were followed: The House Intelligence Committee voted (on party lines) to release the memo.

Under an obscure committee rule to make the classified memo public, which has never been invoked in the panel’s 40-plus-year history, the President now has five days following the vote to decide whether to allow the public release to move forward or object to it.

Trump then OK’d the release, ignoring the pleas of his own appointees, like FBI Director Christopher Wray and Assistant Attorney General Stephen Boyd.

So the rules were followed. But the larger truth is that secrets shared with the House Intelligence Committee were revealed to the public in order for one party to gain a political advantage over the other. The FBI was made to look bad, and can’t defend itself without breaking the law and releasing even more classified information.

Not just the FBI but all the intelligence services saw this happen, and are drawing the appropriate lesson: The House Intelligence Committee is no longer trustworthy. If there’s some secret that really shouldn’t get out, it needs to be hidden from them.

The country will pay a price for this, maybe not this week or next, but down the road.

Will it work? The point of the memo wasn’t to convince reasonable people, because it clearly won’t do that. The memo is not intended to be read, it’s intended to exist, so that claims (like Hannity’s) can be made about it. Trump immediately asserted that the memo “vindicated” him and his often repeated contention that the Mueller investigation is a “witch hunt”. “The FBI,” he tweeted, “became a tool of anti-Trump political actors.” Don Jr. called it “sweet revenge”.

But that’s such obvious BS that even Rep. Trey Gowdy, who led the eighth investigation into Benghazi and so should know a witch hunt when he sees one, isn’t buying it.

There is a Russia investigation without a dossier. So to the extent the memo deals with the dossier and the FISA process, the dossier has nothing to do with the meeting at Trump Tower. The dossier has nothing to do with an email sent by Cambridge Analytica. The dossier really has nothing to do with George Papadopoulos’ meeting in Great Britain. It also doesn’t have anything to do with obstruction of justice.

Another Republican, Senator John McCain issued this statement:

The latest attacks on the FBI and Department of Justice serve no American interests – no party’s, no president’s, only Putin’s. The American people deserve to know all of the facts surrounding Russia’s ongoing efforts to subvert our democracy, which is why Special Counsel Mueller’s investigation must proceed unimpeded. Our nation’s elected officials, including the president, must stop looking at this investigation through the warped lens of politics and manufacturing partisan sideshows. If we continue to undermine our own rule of law, we are doing Putin’s job for him.

The point of the memo is that Trump supporters can say, “The Nunes memo proved …” If you’re not the kind of American who is willing or able to read the memo and assess its claims, that assertion is as convincing as anybody else’s assertion.

In the parallel political universe Dave Neiwert calls “alt America”, Trump is trying to take the government back for the American people, and so is being persecuted by the Deep State. The FBI, the Department of Justice, and even the people Trump himself has appointed to run those institutions, can’t be trusted. The Nunes memo fits right into that world, and will become one of the building blocks of its case.

Rosenstein. The Trump appointee the memo seems to be pointed at is Deputy Attorney General Rod Rosenstein, who appointed Mueller after Attorney General Jeff Sessions recused himself from matters having to do with Russia and the Trump campaign. Rosenstein is overseeing the Mueller investigation, and has whole-heartedly supported the integrity of the investigation in testimony to Congress. If Trump wants to fire Mueller, the order has to pass through Rosenstein.

The Nunes memo doesn’t really accuse Rosenstein of anything, but his name comes up twice: He signed off on one of the FISA warrant applications against Carter Page, and he is mentioned as having worked closely with Bruce Ohr, who was Steele’s contact in the Justice Department. That, apparently, is enough to make him part of the Deep State cabal that needs to be purged. Right-wing media is full of demands that Rosenstein be fired.

Firing Rosenstein, of course, would put Trump one step closer to firing Mueller, or possibly just reining in his investigation or hamstringing it. Three authors at Politico described this plan as “a Saturday Night Massacre in slow motion“. Firing Mueller at this point would invite a response: Republicans in Congress have said it would “be the end of the Trump presidency“, and legions of demonstrators are poised to take to the streets within hours of an announcement of Mueller’s firing.

But what about Rod Rosenstein? What if Rosenstein is replaced by someone who gradually turns the screws until a legitimate investigation is impossible? Where is the tripwire on that path?

If the Trump base is convinced that Rosenstein (in spite of being chosen by Trump) is part of the anti-Trump Deep State cabal, and if Trump can be seen to be giving into their demands by firing Rosenstein, maybe Republicans in Congress make tut-tutting noises, but do nothing. Maybe demonstrators will be harder to galvanize behind a Trump appointee like Rosenstein.

It is a situation that anyone who has studied fascist takeovers in other countries will recognize. Again and again, opponents of the regime are faced with the question: Is this the hill we have to defend? Is the Point of No Return here, or somewhere else?

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Comments

  • Dr. R.  On February 5, 2018 at 12:26 pm

    “As always in democratic governance, rules only work if they are surrounded by a penumbra of unwritten norms embodying the spirit behind the rules.” Yes, yes, yes. I move that you establish a Compendium, going at least back to the days of Gingrich/DeLay/Hastert, of Norm Violations — hereinafter known as the NVC. This would be akin to your conservative-to-English Lexicon. One of my TTNVs (Top Ten Norm Violations) would be the simple and brutal refusal to even consider the nomination of Judge Garland thus enabling Judge Gorsuch to gain a seat on the Supreme Court.

    You could also initiate the ‘Double Standard’ Listing (DSL), also known as the Chutzpah Hypocrisy Inventory (CHI). An example might be the concern, if not outrage, over Mueller’s bias against Trump while glossing over, if not forgetting, Starr’s motivations and actions. Another might be giving Trump a “mulligan” while demanding the ouster of the likes of Weiner, Clinton, Spitzer and Frankin for their sexual shenanigans.

  • MAHA  On February 5, 2018 at 2:20 pm

    One of the unsubstantiated claims in the Steele dossier relates to Trump’s use of prostitutes (more than one at a time) while in Russia for his Miss Universe contest. The Stormy Daniels affair (which Trump has not denied) is just one step removed from the multiple prostitutes scenario. Daniels is a porn star, and Trump was trying to get a friend of hers who is also a porn star to make it a threesome.

    Just FWIW.

    Deborah McP

  • Marty  On February 5, 2018 at 5:44 pm

    Then there are the informed implications of the memo given the other information we have, which collectively actually make the opposite point it claims to make:

    * The warrant in question was extended multiple times: If said warrant had not returned what it was seeking, it likely would not have been extended even once, let alone three times. So, the claim that the warrant was improperly obtained is undermined by the fact that the suspicions of the FBI were apparently true: the target of a warrant for communication with Russian spies was, apparently, in fact, actually communicating with Russian spies.

    * The revelation that the Steele Dossier was included in the application for this warrant is unsurprising. After all, such an application is supposed to contain every verifiable line of investigation leading to the suspicion that the warrant is meant to confirm or deny. Moreover, during the Woods procedure, every claim made in the application needs to be verified with some kind of evidence: passenger manifests for flights, receipts, etc. Meaning that Steele’s word would be utterly insufficient to be included without further evidence to back his claim.

    * We also know from other sources that the target of said investigation Carter Page was involved with Russian Spies in 2013. In fact, and earlier FBI investigation of this had resulted in various other arrests.

    * Furthermore, the memo seems to, in fact, confirm that the FBI’s Trump-Russia investigation itself predates the Steele Dossier, thus ultimately making a lie of the claim that the Trump investigation is invalid because it originated from the supposedly unreliable partisan bias of Mr. Steele. The investigation was apparently well underway by the time that the FBI learned anything from Mr. Steele.

    * Last, we must consider the source: Devin Nunes, a man whose earlier Trump toadyism resulted in him supposedly recusing himself from this matter, something which, if he had actually done would have prevented him from writing the memo we are discussing. Devin Nunes, a man who has even admitted that he has not even read the material his memo is apparently summarizing.

    Given these details (as well as those mentioned above) a logical analysis of said memo would indicate that, in fact, the FBI did not behave improperly and that the FBI’s Trump-Russia investigation is, in fact, well founded.

  • JJ  On February 7, 2018 at 9:48 pm

    Thank you, Doug. I had already read the memo, and was underwhelmed, but I didn’t do the kind of analysis that you did. Right now, I feel pretty confident in asking people on the right to actually read the memo if they want to talk about what it means.

    And if I find out who is running against Devin Nunes, I might send his opponent some money.

    • weeklysift  On February 8, 2018 at 6:55 am

      Part of why I wrote this piece was that I wanted that kind of confidence for myself. If someone brings it up, I want to be able to say more than just a vague “I hear there are some problems with that.”

Trackbacks

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