What's Actually in the Nunes Memo

In my previous post on the Nunes memo[1], I looked at the extensive run-up to its actual publication, which occurred about six weeks after the press caught wind of it.  During that six weeks—despite the absence public access to the memo—there was extensive and highly politicized debate about it.  This post concerns the contents of the memo itself, which was published on February 2, 2018, and some of its aftermath.

What’s in the Memo?

To review: the four-page Nunes memo was created by the Republican staff of House Intelligence Committee Chairman Devin Nunes without Democratic input; it is partially based on classified information obtained by the committee in its months-long effort to investigate the FBI and Justice Department and their ongoing probe into whether the Trump campaign coordinated with Russia.  The memo alleges the FBI abused its surveillance authority, particularly when it sought a secret court order to monitor a former Trump campaign adviser, Carter Page.  

 The memo describes how research funded by the Hillary Clinton campaign and the Democratic National Committee played a role in the FBI's obtaining a Foreign Intelligence Surveillance Court (FISA) warrant to surveil former Trump campaign adviser Carter Page.

The research effort was that of former British intelligence officer Christopher Steele, who produced a now infamous dossier of lurid allegations against Trump. Steele had been hired for his work by Fusion GPS, an opposition research firm who had themselves been hired by Hillary Clinton's campaign and the Democratic National Committee. (Washington Post)

The entire memo, then, consists of charges that the FBI mishandled its application to the FISA court by omitting the fact that Steele’s information was politically biased and, therefore, the FBI is guilty of misconduct that the FISA warrant was tainted politically. 

Problems with the Memo

There are the two principle accusations in the memo.  It asserts that

1. the FBI kept Steele’s potential political bias hidden from the court. 
2. the FISA court depended on Steele’s potentially biased information to issue the warrant.

To understand the glaring weakness in these accusations, it’s helpful to understand the FISA court process.  The court was established in 1978 by a Senate committee after revelations that intelligence services were putting citizens under surveillance without adequate oversight.  It is a formal court presided over by a federal judge who, with her staff, examines applications with legal rigor.  The government agency (in the Nunes case, the FBI) applies for the warrant, which is carefully examined.  Application for new surveillance warrants are required every 90 days and the judge renews the warrant only after fresh documentation is presented.  Court proceedings are classified.  

The first assertion of unreported political bias in the memo is just false, as Nunes later acknowledged.  Confronted with the fact that potential political bias was included in a footnote, Nunes then suggested that the small footnote could easily have been overlooked.  But that is highly unlikely.  The application review

process involves at least a dozen people, including federal judges whose job it is to scrutinize whether the warrant is yielding relevant and legitimate information to the FBI’s case.  (Washington Post)

In addition, potentially biased information (such as, for instance, that an accomplice had beenpromised dismissal of his charges in exchange for his testimony) is routinely included in court applications, which the judge then takes into account.  Nunes faulted the FBI for not mentioning that the political bias was specifically from the facts that the Clinton campaign and the Democratic National Committee, but the judge could certainly have asked for that information if she thought it was relevant.

The second charge that the court relied too much on this single piece of information, is also just false.  The FBI had been interested in Carter Page (the subject of the warrant) since 2013 because of his contacts with the Russians.  Knowledge of other reasons for the application are conveniently confidential, but experts report that it’s inconceivable that the court relied solely on the Steele dossier: The processes for applying for and obtaining a warrant is just too complex.  Furthermore, as Dianne Feinstein, Democratic member of the committee has noted,

“Not a single revelation in the Steele dossier has been refuted.”  [In addition,]

[n]ot only is the memo alleging federal law enforcement misused his dossier, but it’s suggesting the source behind the dossier was a dishonest and untrustworthy partner.

This is attacking Steele’s credibility. He is generally regarded as a boy scout and a high-quality intelligence officer, and he had worked with American authorities before. Washington Post comments by Aaron Blake

The Memo: A “Nothingburger”?

The Nunes memo is hardly the “bombshell” it has been purported to be.  There is no new information.  Even without our access to the confidential information available to Nunes, it’s clear that the memo’s arguments are virtually baseless.  So why was the memo published?

Next: Why was the memo published and what harm has it done to our democracy?

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[1] which you’ll probably need to read if this post is to make sense.

Before the Nunes Memo

The controversy over the Nunes memo that has dominated political news over the past weeks may seem like just one more element in the increasing polarization¹ and dysfunction of partisan politics.  But it is much more.  The Republican Party’s broad embrace of the memo marks the Republican entrance into the war on democracy that has characterized the Trump administration.

What’s the fuss?  Devin Nunes is the Republican chair of the House Intelligence Committee investigating possible Russian meddling in the 2016 election.  His (Republican) staff prepared the memo, a document that accuses the FBI of partisan “misconduct” and “abuse of power” in its Russian investigation especially in getting a secret surveillance warrant from the FISA (Federal Intelligence Surveillance Act) court.

This will be a series of three posts.  This first post considers the action before the actual publication of the memo.  It’s a complicated story:

In May of 2017, President Trump fired FBI Director James Comey for his alleged partisanship in the FBI’s Russia investigation.  In part to counter the accusations of partisanship, Deputy Attorney General Rod Rosenstein immediately appointed Robert Mueller as special counsel to investigate.  Mueller is a former FBI Director, appointed by Republican George W Bush and (was) deeply respected by both political parties.

In the course of his investigation, Mueller obtained from the secret court established under the Foreign Intelligence Surveillance Act (FISA) an order to surveil Carter Page, a former advisor to Trump.  Republicans attacking the Mueller probe have claimed that the evidence submitted to the court was based on information provided by a Hillary Clinton supporter, Christopher Steele.  Because the information was partisan, maintained the Republicans, the Mueller probe is guilty of misconduct and should be disbanded.  One House member even said that the “FBI malfeasance showed ‘clear and convincing evidence of treason.’"

In mid-December 2017, Politico published a story that Nunes and Republican members of the House Intelligence Committee were secretly working on what would be called the “Nunes memo” that would, they claimed, reveal malfeasance by the Mueller probe.  The memo would be based, however, on classified information.  Democrats had no role in preparing the memo.  The memo was not actually made public until February 2.  During that time Republicans, however, leaked some information about the contents of the memo and claimed that the memo itself would be a “bombshell” and destroy the legitimacy of the Mueller probe.  During those six weeks, however, Nunes:

• refused to publish the memo to back up his claims,
• refused to allow Democrats—even Democratic members of the Intelligence committee—to see the memo until weeks after news of it became public,
• refused to allow the Democrat members of the committee to use the same classified information to rebut the memo, and
• talked publicly and repeatedly about the information that would be in the memo, how earthshaking it would be, and how it would destroy the credibility of the Mueller investigation 

… all without any public evidence.Without knowing exactly what the memo contained or permission to use the same classified material, Democrats were unable to amount a convincing defense against Nunes’s unsubstantiated accusations.

Before publication of the memo, it was reviewed by the FBI, whose ability to respond publicly was hampered by its inability to use the classified information in rebuttal.  The FBI rarely makes public statements but this time responded with unprecedented bluntness:

“[W]e have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.” 

Both FBI Director Christopher Wray and Assistant Attorney General Rod Rosenstein argued strongly against the release of the memo.  The Justice Department called it a “reckless act,” placing itself at odds not only with Nunes and the Republican majority in the committee but also with President Trump who wanted the memo released.

By the time the memo was finally released on February 2, the six-weeks of speculation, charges and counter-charges had had a profound public impact.  Conservatives, including especially Fox News, used the unsubstantiated claims to hammer the FBI as a partisan tool of the “deep state.”  Fox News host Jesse Watters told viewers that

the scary part is we may now have proof the investigation was weaponized to destroy [Trump’s] presidency for partisan political purposes and to disenfranchise millions of American voters. …  Now, if that’s true, we have a coup on our hands in America.

Like the attacks on the press, the judiciary, science, academics, his own government offices, national intelligence agencies, the military, and the notion of objective truth itself, Trump, through the Nunes memo, is leaving himself as the only source of objective truth.
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¹I'll examine the implications of this partisanship for democracy in a future post.

Next: What’s actually in the memo?