The Robert Mueller investigation into Russian collusion with the Trump campaign will continue unimpeded. National security was not undermined or threatened. There were no omissions of fact in the memo drafted by Representative Devin Nunes. In one simple declassification, the House Permanent Select Intelligence Committee (HPSCI) and the Trump Administration dealt a deathblow to three narratives cutting across the entire spectrum of spin on the Nunes memo hysteria.
The concerns and hopes of each group — Republicans, Democrats and the FBI — were undercut by a memo that, in its brevity, still manages to raise numerous concerns for Americans.
First, let’s dispense with the initial claims by each party involved prior to declassification. Individuals such as Tom Fitton hoped that this memo would undermine the Mueller probe’s legitimacy by exposing the probe as “fruit of the poisonous tree” — borrowed from legal evidentiary standards wherein evidence acquired from an unlawful warrant is not admissible in court. The memo rejects this premise by citing the George Papadopolous investigation as the catalyst for the Mueller probe.
Democrats, ironically now concerned about national security (the party of Chelsea Manning and the party that released Bowe Bergdahl), alleged that the memo would expose intelligence gathering sources and methods. The memo simply corroborates public record knowledge. The FBI’s claim that the memo contains grave omissions of fact failed to stand up to scrutiny when FBI officials reviewed the memo and found no such fault.
Despite all this posturing when the memo’s content was still unknown to the public, there actually are legitimate concerns and questions raised from the memo. Americans interested in civil liberties, governmental transparency and the politicization of the FBI should be outraged over the substance found in the four-page document. However, the spin in the aftermath should leave citizens with more questions than answers. While the information presented by Nunes is not a nuclear warhead, it is a bombshell.
The first violation of note involves 4th Amendment concerns for American citizens. Briefly, the 4th Amendment protects against unlawful search and seizure requiring probable cause and increased scrutiny before violating an individual’s right to privacy. The Constitutional provision also prevents unlawful government surveillance.
The memo plainly states that the Christopher Steele dossier was only “minimally corroborated,” yet it formed the foundation for the Foreign Intelligence Surveillance Act (“FISA”) warrant against former Trump advisor Carter Page. The dossier itself was known to the FBI at the time of procurement to have been political opposition research. The FBI’s decision to withhold information such as Steele’s bias, the political nature of the dossier and the lack of verification of the dossier’s information raises sincere questions as to the permissibility of the subsequent warrant against Page. Such withholding of information creates serious problems for the administrative court as well.
The Foreign Intelligence Surveillance Court (“FISC”) judge was not presented the opportunity to weigh potential bias or review material evidence as gathered and verified by the FBI. Administrative courts receive broad discretion in the United States, and their review is generally not overturned. This leeway, in turn, is supposedly met with a higher burden of scrutiny for administrative judges. The Nunes memo, as explained above, reveals that the FBI obscured the process in pursuit of a warrant.
The FISA requires re-certification of a warrant every 90 days with an independent determination of probable cause to issue the warrant. The minimal corroboration of the dossier casts serious doubt on the validity of a probable cause finding, specifically when part of the corroboration was proven to be invalid for at least the initial grant of the warrant and one renewal.
The final issue raised in the memo is collusion within the FBI and Democratic circles. The ties between Associate Deputy Attorney General Bruce Ohr (ADAG Ohr), his wife, Fusion GPS, Steele, Sally Yates and Rod Rosenstein taints the Russian investigation. After Steele’s separation from the FBI as a source, Steele’s work-product continued to flow into the FBI through ADAG Ohr’s wife, who worked for Fusion GPS — a Democratic opposition research firm.
ADAG Ohr, although not assigned to the case specifically, held close working relationships with Yates and Rosenstein, which provides reasonable grounds to assume some level of comity and cooperation. Rosenstein and Yates subsequently signed off on FISA warrants against Page based, in part, on the information provided by the Steel dossier and whatever other information was collected between warrant certifications. (Investigation Update Part 2). Such information may have included work-product from Fusion GPS based on ADAG Ohr’s actions in providing the FBI with material from the company obtained through his wife.
Questions remain after the release of the Nunes memo. What specifically was ADAG Ohr’s role vis a vis the Russian investigation, Rosenstein, Yates and former director James Comey? What information did ADAG Ohr’s wife provide to ADAG Ohr for further investigation? What weight and reliance did the FBI place on information garnered from Fusion GPS (and by extension the Democratic National Committee)? Were there independent grounds to renew the FISA warrants aside from the dossier material?
Unfortunately, answers to these questions can only be speculative, barring further declassification of other materials. Much of the lingering questions can only really be inferred or extrapolated from public comments from all the parties involved. Representative Adam Schiff of the HPSCI issued a statement challenging the validity of the memo and calling for declassification of the Democratic critique of the Nunes memo. Christopher Wray, the FBI director, has denounced the memo. President Trump believes that the memo shows clear bias against him, which undermines the Mueller investigation. The coming weeks will no doubt see more information and more calls for declassification come forward. That information will shed critical light on the remaining questions.
In the interim, it’s important to weed out spin and attempts to downplay the facts alleged in the memo. While Page was on the FBI’s radar in 2013, there are no facts in the public sphere that link that surveillance to the 2016 FISA warrant, nor are there any conclusions from the 2013 surveillance. Steele himself has admitted, under oath in British courts, that he was directed by Fusion GPS to leak information to the press from the dossier to lend credibility to the claims; these articles wound up being part of the corroboration of the dossier itself.
Representative Adam Schiff has attacked Representative Nunes by claiming that the memo writer did not read the underlying documents; the only problem being that only Representative Trey Gowdy did read the documents due to the Department of Justice’s restrictions. The New York Times has even entered the fray to attack the memo by playing semantics in downplaying Steele’s role with the FBI (claiming Steele could not be terminated or suspended, as he was not employed by the FBI, despite such terms also denoting active informant status, not just employment). Former director Comey’s attack on the memo targets the HPSCI’s credibility and reputation, rather than the memo’s content; which is telling, considering that high-level FBI officials reviewed the memo for omissions and errors and found none.
Perhaps the greatest contribution the Nunes memo has made to public discourse is managing to place on full display the disconnect between manufactured outrage and reality. While the memo was a secret, it was claimed to be either a national security threat that would either expose the intelligence community to untold damning risk, or a smoking gun that would expose FBI and Democratic corruption.
The memo itself, while not any of those things, does expose major civil liberties concerns, potential abuse of the administrative court system (an already alarmingly powerful insular body) and a tangled web of partisan infiltration into the daily operations of the FBI. The media scrum after the release of the memo highlights the hilarity of the hysteria. Republicans and civil libertarians come out fairly clean; the memo details actual abuses and some reasonable degree of corruption.
Democrats, who cast aspersions on the memo as a dire threat to national security, now have to walk back such claims, as the memo plainly fails to fit the bill. The FBI, whose credibility had already taken a hit in the wake of the Hillary Clinton investigation, and the Peter Strzok/Lisa Page texts, has taken yet another black eye to its credibility by utilizing the dossier and the implied use of Fusion GPS for intelligence gathering.
Ultimately, the Nunes memo is critical in advancing calls for clarity and transparency within governance. Where American citizens’ rights and liberties are violated, even on nominally political grounds, such abuses should be dragged to light. Administrative courts and executive agencies are not insular from accountability and should be held to higher standards due to their broad discretion and relative flexibility in operation.
The Nunes memo itself has served to expose the tangled relationships of the FBI, the Democratic Party apparatus, and potential obstruction and manipulation of the administrative court system. If, for no other reason than that which is stated above, the Nunes memo is a crippling blow to institutions already lacking in public trust. Democrats and the FBI would be wise to call for reform rather than attack the memo and its authors. The substantive accusations contained in the memo detail abuses that rise above partisan politics. Democrats, in particular, must confront the fact that their party and constituents are front and center in this scandal. Rather than attempting to diminish the issue, the party must call for reform and denounce the alleged behavior.