The Nunes memo is a giant, damaging distraction
EVEN TAKEN at face value, the infamous Nunes memo does nothing to discredit the Russia investigation, which was President Trump’s transparent aim in authorizing its release on Friday. It also does little to show abuse of surveillance law, which was the pretext on which House leaders justified its disclosure.
The memo argues that the FBI may have abused special spying authority under the Foreign Intelligence Surveillance Act (FISA), obtaining a warrant to surveil former Trump adviser Carter Page using information from the controversial Steele dossier, a collection of allegations about Mr. Trump and his circle assembled by a former British intelligence agent with funding from Democrats.
The memo claims that the FBI did not disclose the dossier’s full provenance in its application for a FISA warrant, suggesting that the warrant against Mr. Page — and, therefore, perhaps, the early stages of the Russia investigation — was tainted.
Law enforcement officials have warned that the memo offers a slanted and inaccurate picture. Sen. Mark R. Warner (D-Va.), the vice chairman on the Senate Intelligence Committee with high-level access and far more credibility than those behind the memo, insisted Friday that the “underlying documents” on which the memo is based “simply do not support its conclusions.”
But even on its own terms, the memo does more to refute than to support the FBI corruption narrative that the president is spinning. Consider these four damning admissions:
First, the memo states that separate information on a different Trump adviser, George Papadopoulos, “triggered the opening of an FBI counterintelligence operation.” In other words, it was not the Democratic-funded dossier or the warrant against Mr. Page that led to the Russia probe. Instead, the memo reveals that there were preexisting grounds to investigate, based on information about a different Trump associate. So the president cannot construe this memo as offering evidence that the Russia probe began corruptly.
Second, the memo indicates that the Justice Department sought its warrant against Mr. Page in October 2016 — after Mr. Page had left the Trump campaign. So the president’s campaign was not the intended target.
Third, the memo notes that “the FBI and DOJ obtained one initial FISA warrant targeting Carter Page and three FISA renewals,” and that “each renewal requires a separate finding of probable cause.” The court would not have made those separate findings or granted renewals without evidence that the surveillance was producing valuable information that Mr. Page may have been acting as an agent of a foreign power.
Fourth, the memo states that among those who signed renewal applications were Dana Boente, whom Mr. Trump tapped to temporarily lead the Justice Department after firing acting attorney general Sally Yates, and Rod J. Rosenstein, whom Mr. Trump chose to be the deputy attorney general.
For the conspiracy narrative to hold any water, one would have to believe that officials appointed by a Republican president, including one confirmed by a Republican Senate, were part of a plot to bring down that same Republican president, and that they successfully hoodwinked FISA judges selected by the Republican-appointed chief justice of the United States. This hoodwinking would have continued after the nature of the dossier had been widely publicized and Mr. Page’s Russian connections publicly scrutinized. This is beyond improbable.
The memo offers no evidence that the dossier’s allegations about Mr. Page were wrong. In fact, Mr. Page himself confirmed a great deal of the dossier’s material about himself in testimony before the House Intelligence Committee, admitting to extensive contact with Russian officials during a July 2016 trip to Moscow.
The memo also omits a great deal of the other information that bolstered the case against Mr. Page. He has been on the government’s radar screen since at least 2013, when investigators scrutinized a Russian spy’s apparent attempt to recruit him.
Did the FISA court fail to receive all relevant information about the dossier? That’s a legitimate question, but it’s impossible to know the answer, especially because House Speaker Paul D. Ryan (R-Wis.) and other Republican leaders let the Nunes document go public without the simultaneous disclosure of a Democratic memo that is still restricted from public view. The New York Times reported Friday that the Democratic memo claims the FBI in fact informed the court that the dossier was politically motivated. And it’s worth noting that the Nunes memo contains no serious discussion of whether failing to disclose the dossier’s full provenance — if that is what occurred — should have put the warrant against Mr. Page in legal jeopardy. In fact, as University of Southern California law professor Orin Kerr points out, judges generally assume that informants provide slanted accounts and build that into their review of warrant applications. Consequently, when bias on the part of informants is exposed after a warrant is issued, judges still generally uphold the warrant.
The Nunes memo has turned out to be a giant, damaging distraction.
Shortly after its release, Sen. John McCain (R-Ariz.) reminded the country of what is really at stake. “In 2016, the Russian government engaged in an elaborate plot to interfere in an American election and undermine our democracy,” Mr. McCain said. “ The latest attacks on the FBI and Department of Justice serve no American interests — no party’s, no president’s, only [Russian President Vladimir] 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 [Robert S.] 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.”
How long will Mr. Ryan, Senate Majority Leader Mitch McConnell (R-Ky.) and all the other supposed adults in the GOP watch in complicity as the president and his enablers do “Putin’s job for him”?
