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.
 ___________
¹I'll examine the implications of this partisanship for democracy in a future post.

Next: What’s actually in the memo?

Free and Open Debate

Our democracy depends upon such formal protections as our Constitution, the separation of powers, fair elections, and so on.  It also depends, however, upon responsibilities that are more amorphous, harder to define or slippery to protect, such as free and open debate among people who disagree with one another.

In our large and diverse American culture, disagreements about core issues are inevitable.  Democracy depends on our willingness to voice those differences and actually listen to those with whom we disagree.  And it depends upon our confidence that our leaders will hear, pay attention to our arguments, and lead us to the compromises required.

EJ Dionne, a columnist for the Washington Post has written an insightful commentary on the importance of these debates and on the President’s role in them:

Given my social democratic leanings I would assert, for example, that equal opportunity—including the opportunity to participate fully in self-government—demands a far greater degree of economic security and equality than we currently enjoy. This is particularly true when it comes to access to health care, education, family time away from paid labor, and the chance to accumulate wealth.

You might push back and say that my proposals toward these ends impinge more than they should on individual freedom and require higher levels of taxation than you are willing to put up with. Or you might insist that I am focusing too much on economics and that promoting better personal values society-wide is more conducive to the nation's well-being than any of my programs for greater equity.

And, yes, we might quarrel about who has a right to join our political community and become part of our nation. …

Such debates can be bitter, but democracy's health depends on our ability to hold our passions against each other in check and to offer each other at least some benefits of the doubt.

In our disagreements, I must accept you as a “legitimate rival.”  I must listen to you with respect.  I must argue against what you are saying and not attack you personally.  I must be willing at least to search for tolerable compromise.  Without such debate our country succumbs to acrimony and distrust, subverting our democracy.

There can be no question that our capacity to debate freely and openly has taken a profound hit over the last thirty-five years.  Our increasing polarization has made it very difficult to listen to one another.  We have shut down debate, either literally (shouting down speakers) or figuratively (listening to and reading only those who agree with us).  Compromise has too often become betrayal.  We have poisoned our democracy.

Dionne again:

Which, alas, brings us yet again to President Trump, who (no matter how much we want to) cannot be avoided at this moment because he threatens the conditions under which democracy can flourish.

Our current debate is frustrating and not only because Trump doesn't understand what "mutual toleration" and "forbearance" even mean. By persistently making himself, his personality, his needs, his prejudices and his stability the central topics of our political conversation, Trump is blocking the public conversation we ought to be having about how to move forward.

[T]here should now be no doubt (even if this was clear long ago) that we have a blatant racist as our president. His reference to immigrants from "sh--hole countries" and his expressed preference for Norwegians over Haitians, Salvadorans and new arrivals from Africa makes this abundantly clear. Racist leaders do not help us reach mutual toleration. …

But notice also what Trump's outburst did to our capacity to govern ourselves and make progress. Democrats and Republicans sympathetic to the plight of the Dreamers [had] worked out an immigration compromise designed carefully to give Trump what he had said he needed.

There were many concessions by Democrats on border security, "chain migration" based on family re-unification, and the diversity visa lottery that Trump had criticized. GOP senators such as Lindsey Graham, R-S.C., and Jeff Flake, R-Ariz., bargained in good faith and were given ample reason by Trump to think they had hit his sweet spot.

Trump blew them away with a torrent of bigotry.

The President broke no laws.  He attacked no specific constitutional protections and suggested no outright muzzling of the free press (though he has done each before).

But his complete domination of the news cycle with self-aggrandizement, bigotry, disrespect, lies and so on poisons the possibilities for us to talk to each other and preserve at least a thread which we can follow back to a truly democratic society.

A Washington Post Editorial: Undermining Democratic Values

Since beginning this blog, I have been concentrating primarily on the danger that Donald Trump and his presidency present to our democracy.  It has seemed to me that amidst the ongoing tidal wave of the President’s coarse, demeaning and outrageous comments, commentators have been distracted from adequately exploring his deeper danger to the democratic process.  

That seems to be changing.  In the past several days an editorial (which I’ll examine today) and an opinion column (which I’ll review in the next post) have appeared in the Washington Post focusing on this specific threat.    

The Post editorial suggests that Trump’s “toxic influence” goes well beyond the “awful things” he says and does; more importantly, the danger “lies in how he undermines democratic values in less spectacular ways that go relatively unchallenged.”  The editorial deserves to be extensively quoted:

● Following the publication of an unflattering book, Mr. Trump insisted that the country should have tougher libel laws that would make it easier for powerful public figures such as himself to sue writers who say things that are “false” — that is, to gag critics the president does not like.

● The president continued his paranoid smear campaign against the Federal Bureau of Investigation, suggesting that the FBI influenced the 2016 presidential election to his detriment and accusing a senior FBI investigator of committing treason for privately sending anti-Trump texts. He also implied that law enforcement scrutiny should focus on a political opponent, Hillary Clinton. The president’s assault on a nonpartisan law enforcement agency and his insistence on prosecuting political opponents suggest he does not understand the differences between advanced democracies and authoritarian states. So, too, did his contention that the “Court System” is “broken and unfair,” following a ruling he did not like.

● With similar contempt for facts and fairness, the president called the Russia probes “the single greatest Witch Hunt in American history.” The inquiries include a formal law enforcement investigation based on ample evidence of Russian involvement in the 2016 election … [that] is is compelling. Nevertheless, Mr. Trump suggested that Republicans should “take control,” presumably to end the probes before they have fully accounted for the actions of a hostile foreign power and any Americans who may have helped. Congressional inquiries and special counsel Robert S. Mueller III’s investigation into the hostile acts of an unfriendly foreign foe should be insulated from political pressure; instead, the president is demanding the pressure be ramped up.

● Mr. Trump’s obsession with the Russian probes also was manifested in his suggestion that a U.S. senator, Dianne Feinstein (D-Calif.), broke the law by releasing non-classified testimony at the request of the witness who delivered it to lawmakers. Mr. Trump’s real objection was that the testimony undermined a conspiratorial narrative he had been building about the FBI’s Russia investigation.

While I have previously written in this blog about these issues (with the exception of the last), it is, of course, much more important that the mainstream press is, on the one-year anniversary of Trump’s inauguration, highlighting them and their implications for our democracy.

Prosecute Comey?

In most circumstances, expressing a political opinion or making a political suggestion is healthy for democracy. But it’s different for a president of the United State, as evidenced by the international reaction to President Trump’s “shithole” remark last week. While that comment was a crude expression of the President’s racism that further demeaned both his reputation and America’s place in the world community, other remarks and tweets have been much more dangerous to the fragile web that supports our democracy. The President’s tweets and his spokesperson’s comments encouraging the investigation and prosecution of former FBI Director James Comey are important examples.

In September of 2017, President Trump’s press secretary Sarah Sanders suggested that the US Department of Justice should “should certainly look at” prosecuting James Comey, the former director of the FBI, for (unsubstantiated) false testimony to Congress. Trump himself hinted that he had tapes implicating Comey. Then last week, the President tweeted that the Justice Department must “finally act … on Comey.”

While acknowledging that it wasn’t up to the President to decide, his press secretary nevertheless detailed a list of Comey’s violations that should warrant investigation. Although we have become accustomed to the President’s intervening in other legal cases (see my post here), it’s important to reiterate how inappropriate these interventions are and their risk to democracy.

The comments about Comey, however, go even deeper.

The role of the FBI is to investigate crime within the country. Because some crimes have political implications, it’s crucial that the FBI remain above even a hint of partisanship. Trump’s response to the FBI’s (appropriate) investigation of Hillary Clinton’s emails and then its (appropriate) investigation of Russian interference in the election, however, has politicized both the FBIs and Comey’s role. (Trump has called behavior by a senior FBI investigator “treason.”)

The President has, to say the least, a personal interest in the outcome, making his intervention even more unacceptable. This politicization has spread to other parts of the Republican Party, threatening to derail both Senate and House investigations of Russian interference in the 2016 election.

The President fired Comey because of Comey’s initial investigation of the Trump campaign’s possible collusion in Russian interference in the election. Special Prosecutor Robert Mueller’s appointment to continue the probe has led to concerns about Trump’s alleged use of his office to obstruct justice by firing Comey. Comey’s testimony will be essential in Mueller’s investigation, making the President’s push for Comey’s prosecution even more treacherous.

For the President to suggest legal action in a matter in which he is so intimately involved, crosses the line over his appropriate constitutional power.

A Washington Post editorial:

The president’s assault on a nonpartisan law enforcement agency and his insistence on prosecuting political opponents suggest he does not understand the differences between advanced democracies and authoritarian states.

In the United States, the government does not punish political adversaries through the legal system unless there is overwhelming evidence of criminal behavior. And even in these cases (eg Richard Nixon’s role in Watergate), politicians must be scrupulous in maintaining their non-partisanship.

President Trump’s impact on our democracy has been destructive. When he threatens political enemies with legal punishment or when he seeks to impact the behavior of law enforcement or the courts, he threatens the fragile web of tradition, law, and expectation that sustain our democracy.

Truth and Democracy

In many of my posts so far, I’ve written about President Trump’s disdain for truth.  From his insistence that the crowds at his inauguration were bigger than Obama’s to his claim that the recent tax bill contained “huge” breaks for the working and middle class, the President repeatedly offers lies in the face of documented truth.  The New York Times recently listed 108 unequivocal lies in the President’s first eight months

These lies are each bad enough individually.  They create misunderstandings, enforce the prejudices of his base, deny inconvenient science, and so on.  It’s hard to know whether Trump is completely divorced from reality, incapable of determining the truth even for himself, simply pursuing agendas that would make no sense if one knew the truth, or, more likely, some shifting combination of all three.  The larger question, however, is: What happens to a country when there is no-agreed upon truth?  As William Raspberry has asked, “Can a democracy function without a commonly accepted chronicle of events and encyclopedia of knowledge?” 

Our democracy depends on our collective decision making in the face of multiple competing values and opinions. For instance, even if there were general recognition of the truth of climate change, there would still be irreconcilable differences in opinion about what should be done:

• Do nothing and assume humanity will acclimate to the new reality?  
• Do nothing and assume that future technology will solve the problem?  
• Invest heavily in renewable sources of energy without government regulation of carbon emissions?  
• Enforce government-mandated carbon pricing or emission limits?

In a pluralistic democracy these decisions require political wisdom, the ability to compromise, a modicum if trust in the wisdom of the whole and a willingness ultimately to accept even decisions you oppose. But what happens if there are no agreed-upon facts? What happens if there is no agreed-upon way to prove that global climate change is not just a liberal conspiracy perpetrated by a cabal of dishonest, self-interested scientists?

No, a democracy cannot function if we can’t agree on what constitutes truth or even on the possibility of determining the truth. Democracy cannot ultimately survive if the President can convince one-third of voters of “alternative facts” and hold democracy hostage to his version of the truth

So then the question becomes: Is American democracy strong enough to withstand a President with no regard for the truth, especially when no one from the ruling party is willing to hold him accountable, to insist on bringing the truth into debates about the most important topics confronting the government?

While the answer yet hangs in the balance, the recent elections in Virginia, Alabama, and New Jersey are hopeful signs. There is good reason for hope that this one man will not be allowed to destroy our most important national treasure.