Early Musings on the Nunes Memo

Note: This post originated as private correspondence which I subsequently decided to post here. Keep that in mind as you decide how to weigh my analysis. I've gone back and added a number of links that weren't in the original correspondence, but more could and should be done, and some claims I make here aren't currently substantiated by links to outside sources. I was writing from memory.

Donald Trump said the Nunes memo "totally vindicates" him, but even a reader who takes the memo completely at face value would have to ask: How? The memo fixates on the surveillance of Carter Page, but says almost nothing about other matters involving the larger investigation of Russian interference in the U.S. election, Trump's possible involvement, and any other potential criminal activity (such as obstruction of justice or money laundering) by Trump or his associates.

Despite the harm to national security, to law enforcement institutions, and to prospects for congressional oversight, there may at least be this silver lining in the memo's release. The memo badly damages the releaser too, in ways that are already coming out, and will continue to come out. Republicans come across as incompetent bunglers, and their story will continue to fall apart.

For example, the memo alleges that the FISA court judge was not aware of the partisan origins of the Steele dossier, but The Washington Post reported shortly after the memo's release that the judge was told of the dossier's beginnings as a political document commissioned by an entity hostile to Trump. That itself is completely unsurprising in light the rigor of the FISA warrant process, and the demanding relationship of judges to petitioners.

Because persons and institutions in a position to know have said the memo is incorrect, incomplete, and misleading, we can expect specific examples of how that is so to continue to come out. The release of the Democratic memo rebutting the Nunes memo could be a huge and necessary corrective. (I had originally written that release of the Democrats' memo had been approved by the House Intelligence Committee after having initially been voted down on Monday, but that now seems to not be the case. Some Republicans have recently said the Democrats' memo should be released, which is not the same thing.) You can expect that rebuttal to be specific and unambiguous in ways the Nunes memo isn't. Except for one big problem.

Even if approved for release by the House committee, the Democrats' memo has to clear the same procedural process as the Republicans' memo did. Which is to say the president would have five days to review it and ultimately approve or block its release. What are the odds that memo will come out unimpeded? I am looking for a mark an individual, to take the other side of a modest bet with me, in which I will wager that Trump will severely alter, interminably delay, or completely block the Democratic rebuttal. Because the Nunes memo is a baldly political document produced with the blessing and possibly cooperation of the White House, over the objection of the administration's own DOJ and FBI, to advance the president's personal interests, the Democrats' rebuttal will be viewed as a politically hostile response necessitating suppression. The argument that the Nunes memo was subject to review and check by the executive was always a laughable canard because the reviewer and originator were in cahoots, but the White House will certainly treat the Democratic rebuttal as a threat to be opposed. We will shortly see that this was never about transparency.

Complicating our discussion of dueling memos, Rep. Jerry Nadler, Democrat from New York, produced a six-page rebuttal addressed to fellow Democrats that was released by NBC News, but this is not the Democratic memo containing classified information refuting the Nunes memo.

Still, the Nunes memo has its uses. It now confirms, for example, that the FBI's counterintelligence investigation was opened in July 2016 upon revelations that Trump campaign adviser George Papadopoulos in May told an Australian diplomat in London that the Russians had dirt on Hillary Clinton. When Clinton's emails began leaking out two months later, the Australian government contacted the FBI. This was first reported by the New York Times; we now have confirmation that report is correct, specifically in regard to the genesis and timing of the FBI's investigation. Why the Republican bunglers included that useful nugget in the final paragraph of their memo is unclear, because it works at cross-purposes to their attempts to pile aspersions on the Steele dossier. The FBI's investigation, we now know with certainty, was not a result of the dossier.

Thanks to the Nunes memo we now also know—as do our country's enemies—the exact timing of the FISA warrant against Carter Page, and that it was renewed three times. By law warrants must be renewed every 90 days or they expire. This is highly significant information. As the Nunes memo states, "each renewal requires a separate finding of cause." (!) And not just. The prosecutors need to demonstrate that the warrant being renewed has been productive. So the three successful renewals are themselves an indication of the warrant's legitimacy and efficacy. And as this analysis points out, "public reports say that there were four separate judges who did the reviewing—suggesting that four independent reviews validated the FBI’s investigation." The same analysis notes the memo "meant to leave the impression that Steele was the central, critical basis for the probable cause submission to the FISA court. But that isn’t what the memo says."

The Nunes memo makes other factual errors, exactly as the FBI said it did. The memo states that "Steele was suspended and then terminated as an FBI source for what the FBI defines as the most serious of violations—an unauthorized disclosure to the media of his relationship with the FBI...." Claims of "unauthorized disclosure," and of "suspension" and "termination," completely misrepresent the relationship between Steele and the FBI. To begin with, Steele was in no sense working for the FBI. As seventeen hours of testimony by Fusion GPS's Glenn Simpson (who contracted Steele) before Senate and House committees makes clear, it was Steele who initially contacted the FBI over grave concerns about what his investigations had been turning up. Namely, Steele feared that Trump might in fact be an agent of, or at least compromised (and subject to blackmail) by the Russian government. The seriousness with which Steele and Simpson took this threat to the the United States is described in great and fascinating detail in the transcript of Simpson's testimony before the Senate Judiciary Committee.

Further, it was Steele who cut off contacts with the FBI after he deemed, with some frustration, that they didn't seem to be taking his findings seriously enough.

Update to the previous two paragraphs:  The Washington Post reported about a year ago that the FBI had reached a deal to pay Steele for assistance in its investigation, but that the agreement fell apart before it began, because the dossier began to become the subject of news stories and Steele was publicly identified. See also this version of the Nunes memo with Washington Post annotations. The Atlantic's Natasha Bertrand wrote that "two sources familiar with Steele’s actions vigorously dispute the claim that the former British intelligence officer, who has worked with the FBI and State Department on numerous projects over the last several years, ever lied to the bureau about his media contacts." Bertrand added that "a source familiar with the episode, speaking on condition of anonymity because of the ongoing investigation, told me that Steele’s research belonged to his clients, Fusion GPS and the Democratic National Committee. Steele gave the information to the FBI out of a sense of duty, the source said, but a relationship with the FBI had not been formalized even though the possibility of a commercial contract had been discussed to continue the research into Trump’s Russia ties. Such a contract never materialized, which meant that Steele was under no obligation to avoid reporters. The FBI acknowledged that, the source said."

The committee transcript describing Steele's contacts with the FBI also greatly clarifies implications of strong bias by Steele against Trump in the Nunes memo. The memo said Steele "was desperate that Donald Trump not get elected and was passionate about him not being President," [emphasis in the original] as if Steele somehow had strong political hostility to Trump. (This phrase was the only boldface text in the entire memo.) In fact, as the committee transcripts make clear in extraordinary detail, Steele's desperation and passion derived not from political antipathy but by a strong fear that an agent of the Russian government had been elected president of the United States. As you can see, context—in such short supply in the Nunes memo—truly matters, and demonstrates how easy it is to mislead for political effect when context is omitted.

Steele's fears should not be taken lightly. He had been the top Russia expert in Britain's MI6—its foreign intelligence service—before going into private practice. He was well regarded and had previously worked with the U.S. government on past projects, which is why he personally felt empowered to contact the FBI and/or DOJ over what he was learning about Trump. The narrative that emerges is one of how the game dramatically changed as it became clear to him what he was uncovering: how basic "oppo" research was profoundly transcended by an existential concern for democracy in the United States.

Steele's previous relationships with U.S. intelligence and law enforcement also perhaps explains why his dossier might have been given some justifiable weight in the FISA warrant application process. In that process investigators attempt to persuade a judge that a high threshold of "probable cause" has been cleared. If Steele's past interactions with the the U.S. government demonstrated that he produced reliable, quality work, that would be a point in favor of the dossier. Many legal experts have pointed out that, as a matter of law, arguing that a source for a warrant is "biased" almost always fails in legal challenges. Judges routinely assume that sources are biased; what they're trying to ascertain is whether those sources are likely to be correct. A source can be both biased and correct. Anyway, had the dossier been a basis for the warrant, its relevant claims would have been cross-checked against other sources.

I say the dossier "might have been" important; we just don't know the weight the dossier carried in granting the warrant, and despite its innuendo, the Nunes memo doesn't shed useful light on that question. Some observers have argued that the dossier itself doesn't contain enough information on Carter Page—the target of the warrant—to make the brunt of the case. There must have been other important reasons to surveil Page, and some of those possible reasons are already in the public domain (including his publicly visible ongoing interactions with Russia), giving us at least a taste of the case against Page.

It must surely have been significant that Page had already been involved in FBI investigations going back to at least 2013—well before the election. Back then he'd been talked about by Russian agents in intelligence intercepts, apparently as a recruitment target. That investigation resulted in one of those agents being tried, convicted, and jailed. It's also been hinted that Page had been the subject of a previous FISA warrant: information that is supposed to be a closely kept secret but which is inevitably driven out by irresponsible treatments such as the Nunes memo, which unfortunately puts everything in play. All this is far too deep and detailed for a shoddy, brief tract such as the Nunes memo to properly address, and in any case trying sensitive intelligence in the forum of inflamed American public opinion is exactly the wrong way to deal with it.

I have barely scratched the surface in suggesting how the Nunes memo might be misleading and even just plain wrong across a wide range of its claims and implications. Trump's own DOJ and FBI certainly say that it is. House Democrats say it "cherry picks" some information and omits other to produce an inherently false picture for public political consumption. In that regard it is a travesty of congressional oversight, and a cause of enduring shame for House Republicans. Damage has been done. That this will all blow up in Republicans' faces is at least some consolation and will be the source of at least some useful remediation.

P.S. There are several annotated versions of the Nunes memo. The best I've seen is by The Washington Post.

Copyright (C) 2018 James Michael Brennan, All Rights Reserved

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