Blog No. 169. The Nunes Memo: An Outrage Produces a Damp Squib

The release of the Nunes memo was an outrage perpetrated by the Chairman of the House Intelligence Committee, Devin Nunes, and President Trump, with the other Republican members of the Intelligence Committee and even Speaker Paul Ryan acting as their aiders and abettors. The focus of the memo was the conduct of the FBI in obtaining a warrant from the FISA Court for surveillance of a Trump campaign aide, Carter Page. The real target of the memo, however, lies elsewhere: the Mueller investigation.

Indeed, the memo was a naked partisan attempt not only to distract from the Mueller investigation but to undermine it. The motives for releasing it were not only obvious but confirmed by Trump himself. As reported in the Washington Post before the release of the memo, Trump had “told close advisers that the memo is starting to make people realize how the FBI and the Mueller probe are biased against him, and that it could provide him with grounds for either firing or forcing Rosenstein to leave.” Rod Rosenstein, Trump’s appointed Deputy Attorney General, is Mueller’s supervisor and his protection against arbitrary dismissal or the crippling of his investigation. Although Rosenstein became Deputy Attorney General long after the original FISA application had been granted and renewed, he was cited in the Nunes memo as having signed off on a later renewal application. When Trump was asked after the release of the memo if he still had confidence in Rosenstein, he replied ominously “You figure that one out.”

Apart from the blatantly political attempt to provide a line of defense for the President, the memo is an outrage for the partisan and unprofessional manner in which it was produced.The slapdash product was drafted by majority staff members without the knowledge and participation of committee members and even Nunes, in whose name the memo was issued, never paused to read the underlying documents which it purported to analyze. Nor were the memo or its allegations the subject of hearings in either open or closed sessions. Neither the FBI or the Justice Department were permitted to review the document except for a brief and last minute viewing by FBI Director Chris Wray.

At the January 29 meeting, at which the Intelligence Committee voted to release the memo, the Ranking Member, Democrat Adam Schiff, moved to permit the FBI and Justice Department to review the memo, brief the Committee and respond to its concerns. The Department had warned the Committee that it “would be extraordinarily reckless” for the House Intelligence Committee to release a classified memo publicly “without giving the Department and the FBI the opportunity to review the memorandum,” and to “advise” on possible harm to national security and ongoing investigations from its public release. Nevertheless, Nunes rejected the proposal with a stunning assertion:

The Department of Justice and the FBI have been under investigation by this committee for many, many months for FISA abuse and other matters … I would urge my colleagues to vote no, we are not going to be briefed by people that are under investigation by this committee.

Schiff’s motion was then denied by a vote on strict party lines.

Although the rules of the Committee provide that investigations should be initiated only after consultation with the minority, that meeting was the first time anyone in the minority had any indication that the FBI and Justice Department had been under investigation for “many, many months.” As a final show of indifference to rules and procedure, Nunes then changed the wording of the memo after it had been voted on and before submitting it to the White House to seek approval for its release.

The procedural nightmare hardly improved when the memo reached the White House. For his part, Trump paused on his departure from the State of the Union message to assure a Congressman that he was “100% sure” to release the memo that he had not yet read. The following day, his Chief of Staff, General John Kelly, assured listeners to Fox Radio that the memo would be released quickly. And so it was, disregarding a personal plea by Deputy Attorney General Rosenstein and FBI Director Wray and an unprecedented public statement by the FBI expressing its grave concerns over the release of the memo.

As a matter of substance, the Nunes memo proved nothing whatever. As most readers must know by now, the FBI’s initial application for a FISA warrant relied in part on information from the so-called “Steele dossier.” It appears that the application did not fully explain to the court how the dossier had come about and its source of funding, and that is the essence of the complaint made in the Nunes memo. What the memo conspicuously fails to do is give any recognition to the array of other information submitted to the FISA Court in support of the application. The memo attempts to paper over that failure with a bold assertion: “McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.” Democrats on the Committee, however, insist that the statement is a gross distortion of McCabe’s testimony and that McCabe made it clear that information from Steele was “part of a constellation of compelling evidence that raised serious suspicions about Mr. Page.” (Page had been of interest to the FBI as far back as 2013 when his contact with a Russian intelligence operative was picked up by an FBI wiretap). One hopes that the McCabe testimony will be declassified to permit a resolution of this factual issue.

Another curious omission from the Nunes memo is any mention of information that was obtained after authorization of the initial FISA warrant and that must have been submitted to the Court to justify the subsequent renewals. In any case, the most fundamental weakness of the memo is a failure to identify a single item of information submitted to the FISA Court that was incorrect. And, from all that has since appeared, it is reasonably clear that Page was indeed deserving of surveillance.

Finally, the memo acknowledges that, contrary to much hype from conservatives, the FBI counterintelligence investigation was triggered not by the Steele dossier but by the activities of another campaign aide, George Papadopoulos. Any perceived infirmities in the Page warrant application have no bearing on the ongoing Mueller investigation. Although, to his discredit, Speaker Ryan failed to put a stop to Nunes‘s antics, he did recognize this crucial point and expressed it clearly. CNN reported Ryan’s comments on the memo and the Mueller investigation made while he was attending a Republican conference last week.

“I think because of all the loose political rhetoric floating around here, we need to make sure we explain that there is a separation between these things,” the Wisconsin Republican said. Asked if he was delivering that message to his conference, some of whom have pointed to the memo as reason to disband the special counsel probe altogether, Ryan answered: “Yes.”

But Ryan made a point to defend the special prosecutor, saying, “this is a completely separate matter from Bob Mueller’s investigation and his investigation should be allowed to take its course.”

He also praised the deputy attorney, who some say should be fired, “I think Rod Rosenstein is doing a fine job.”

It remains to be seen whether Ryan has the spine to insist on that separation to Trump’s eager defenders in the House and to Trump himself. Even a damp squib can be incendiary in the hands of a pyromaniac. If Trump uses the memo to force the departure of any or all of Chris Wray, Rod Rosenstein and Bob Mueller, the resulting public firestorm should be at least as fierce as that produced by the Saturday Night Massacre of 1973.

NBC: Washington FIreworks, 2016.