House Intelligence Committee releases controversial Nunes Memo – and an analysis that destroys it

House Intelligence Committee chairman Rep. Devin Nunes never reviewed the supporting classified intelligence in the FISA Court warrant for Carter Page — a Russian agent the Trump White House has gone to great lengths to distance from the Trump campaign to the point of  erasing him from memory — from which Nunes and his staff members, and several other GOP members of his committee, have concocted the “Nunes Memo” asserting the FBI violated Carter Page’s civil liberties allegedly motivated by partisan bias against the Trump campaign. The New York Times reports:

Mr. Nunes has not read the warrant from which the memo is said to be drawn. The Justice Department considers such warrants extremely sensitive and allowed only one Democrat and one Republican from the committee, plus staff, to view it. Rather than do so himself, Mr. Nunes designated Representative Trey Gowdy of South Carolina to be the Republican reader.

Ranking minority member Adam Schiff of California was the Democratic reader.

President Trump was only vaguely aware of the Nunes Memo until two GOP House Freedom Caucus members brought it to his attention in a Jan. 18 phone call. ‘Never any hesitation’: Trump was quickly persuaded to support memo’s release:

Over the next two weeks, according to interviews with eight senior administration officials and other advisers to the president, he tuned in to [FAUX News aka Trump TV] segments about the memo. He talked to friends and advisers about it. And, before he had even read it, Trump became absolutely convinced of one thing: The memo needed to come out.

Sean Hannity has been flogging this FBI conspiracy theory on his program every night for weeks now, and Donald Trump takes his cues from FAUX & Friends and Sean Hannity.

Sean Hannity denied a Daily Beast report that he personally advised President Trump regarding the Nunes Memo, but this is really beside the point: Trump watches FAUX News and does as he is told (just follow his tweets).

Despite entreatise from the Justice Department and FBI not to release the Nunes Memo over concerns for exposing intelligence sources and methods, the Trump White House ignored these national security concerns in favor of politicizing intelligence for propagandizing this FBI conspiracy theory in the hopes of discrediting the FBI and Justice Department and undermining the Trump-Russia investigations.

It was a foregone conclusion that Donald Trump, who emerged from the fever swamp of right-wing conspiracy theories with the Birther movement, was going to authorize the release of the Nunes Memo in order to attack the investigators who are investigating his campaign’s interactions with the Russians.

The New York Times reports House Republicans Release Nunes Memo Accusing Russia Investigators of Bias:

House Republicans released a disputed memo on Friday compiled by congressional aides that accused the F.B.I. and Justice Department of abusing their surveillance powers to spy on a former Trump campaign adviser, Carter Page.

The memo, which has prompted a political firestorm, also criticizes information used by law enforcement officials in their application for a warrant to wiretap Mr. Page, and names the senior F.B.I. and Justice Department officials who approved the highly classified warrant.

But the memo falls well short of providing the material promised by some Republicans: namely, that the evidence it contained would cast doubt on the origins of the Russia investigation and possibly undermine the inquiry, which has been taken over by the special counsel, Robert S. Mueller III.

Instead, the document confirms that actions taken by another former Trump foreign policy adviser, George Papadopoulos, were a factor in the opening of the investigation.

The F.B.I. and House Democrats have both said the memo is misleading because it contains both omissions and inaccuracies. The memo does not provide the full scope of [classified] evidence the F.B.I. and Justice Department used to obtain the warrant to surveil Mr. Page.

The outlines of the memo were widely detailed in news reports in recent days. Several details from the complete memo show that it reflects a line of attack circulating for weeks in conservative media outlets (i.e., Sean Hannity and FAUX News), which have been amplifying a narrative that the Russia investigation is the illegitimate handiwork of a cabal of senior Justice Department and F.B.I. officials who were biased against President Trump and set out to sabotage him.

One of its chief accusations centers on investigators’ inclusion in the FISA warrant application of material from a former British spy, Christopher Steele. Mr. Steele was researching possible ties between Russia’s election interference and Trump associates, but the application did not explain that he was financed by the Democratic National Committee and lawyers for Hillary Clinton’s campaign.

It is not clear to what extent the FISA application hinges on the material provided by Mr. Steele, though in December 2017, the memo said, Andrew G. McCabe, then the deputy director of the F.B.I., told the House Intelligence Committee that no surveillance would have been sought without Mr. Steele’s information.

“Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the D.N.C., Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior D.O.J. and F.B.I. officials,” said the memo, which was written by committee staffers.

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That assertion is “potentially problematic,” said David Kris, a FISA expert and former head of the Justice Department’s National Security Division in the first term of the Obama administration.

If the warrant applications did disclose that Mr. Steele’s research was funded by people who were opposed to Mr. Trump’s campaign, even if it did not name the D.N.C. or the Clinton campaign, then the applications “would be fine,” he said, and the author of the memo and those who backed its release are trying to mislead the American people.

“To me, that appears to be the lens through which we should evaluate the honesty, decency, and integrity of the two sides here,” Mr. Kris said. “Not having seen the FISA applications, my money is on D.O.J. and the F.B.I., but presumably time will tell.”

Among the handful of details revealed by the publication of the memo was that the application also cited a September 2016 article published by Yahoo News. Written by the veteran investigative reporter Michael Isikoff, it cited unnamed sources saying that government investigators were scrutinizing Mr. Page’s ties to Russia.

Mr. Steele was later revealed to be a source for the article, and the memo suggests that law enforcement officials’ inclusion of it in their warrant application means they were using the same source twice but presenting it as separate sources.

“This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself to Yahoo News,” the memo said, underlining the assertion.

But it is unlikely that such an article would have been submitted to the court for the purpose of corroborating that a suspect was an agent of a foreign power, said Mr. Kris.

“The idea that they would cite a newspaper article as affirmative evidence of information contained in the article strikes me as very far-fetched,” he said. “It is much more likely that they would include an article to show that the investigation had become public, and that the target therefore might take steps to destroy evidence or cover his tracks.”

In an extraordinary move, the president declassified the identities of the people who had authorized the warrant. Republican committee staff members said the initial FISA warrant for surveillance of Mr. Page was approved by James B. Comey, the former F.B.I. director, and Sally Q. Yates, then the deputy attorney general. The date of the original application was Oct. 21, 2016.

The warrant was renewed three times, meaning Mr. Page was under surveillance for about a year. At various points in renewals of the warrant, required every 90 days, other law enforcement officials who signed off included Rod J. Rosenstein, the deputy attorney general; Dana Boente, now the general counsel of the F.B.I.; and Andrew G. McCabe, the former F.B.I. deputy director who resigned under pressure this week.

Mr. McCabe has been a frequent target of Republicans and of the president. Mr. Trump is also said to be unhappy with Mr. Rosenstein, who appointed Mr. Mueller as special counsel to oversee the Russia investigation.

Asked at the White House on Friday whether he would fire Mr. Rosenstein, the president cocked his head suggestively and said: “You figure that one out.”

Pressed on whether he had confidence in Mr. Rosenstein, Mr. Trump would not answer.

So Trump is now using the Nunes Memo as a pretext to fire Rod Rosenstein in the same way that the memo prepared by Rod Rosenstein was used as a pretext to fire James Comey. Karma’s a bitch, baby.

It is still an open question whether FBI Director Christopher Wray will resign over the release of the Nunes Memo over his objections. White House worried FBI director could quit over Nunes memo release:

Wray has made clear he is frustrated that President Donald Trump picked him to lead the FBI after he fired FBI Director James Comey in May, yet his advice on the Nunes memo is being disregarded and cast as part of the purported partisan leadership of the FBI, according to a senior law enforcement official.

Wray’s stance is “raising hell,” one source familiar with the matter said.

Wray has not directly threatened to resign after clashing with Trump over the possible release of the memo, the source added, because that is not his style of dealing with conflict.

* * *

A person familiar with discussions about the memo said Wray didn’t threaten to quit when he met with Kelly earlier this week and in numerous conversations since, but White House chief of staff John Kelly believes that is a real possibility and has been working on a way to avoid another departure from an already turbulent Trump administration.

As for Special Counsel Robert Mueller: NBC News reports firing him simply isn’t enough:

Instead, as is now becoming plain, the Trump strategy is to discredit the investigation and the FBI without officially removing the leadership. Trump is even talking to friends about the possibility of asking Attorney General Jeff Sessions to consider prosecuting Mueller and his team.

“Here’s how it would work: ‘We’re sorry, Mr. Mueller, you won’t be able to run the federal grand jury today because he has to go testify to another federal grand jury,'” said one Trump adviser.

Asha Rangappa at the Just Security web site of the New York School of Law wrote before the release of the Nunes Memo, Five Questions the Nunes Memo Better Answer. Her exceptional analysis is in full below. It completely destroys the conspiracy theory being pushed today by Donald Trump, Devin Nunes and FAUX News:

The House Intelligence Committee has voted to release the Nunes Memo, which allegedly outlines widespread abuses by the DOJ and FBI in obtaining a surveillance order against former foreign policy adviser to the Trump Campaign, Carter Page. As a former FBI agent who has been through the process of obtaining these kinds of warrants under the Foreign Surveillance Intelligence Act (FISA), I know that such an allegation, if true, would require a vast number of people – across two branches of government – to be on board and willing to put their careers on the line for a conspiracy. To that end, in advance of the memo being released, I want to highlight five questions that the Nunes Memo must clearly address in order for its allegations of abuse to be substantiated and credible.

1. When did the FBI open an investigation on Carter Page?

It’s important to understand that just because the FBI receives information (like the Steele Dossier), the Bureau cannot immediately run to a FISA court and obtain a warrant. A FISA warrant itself does not make a “case;” rather, it’s an investigative tool used in support of an existing national security case, one that normally would have been opened months, if not years, prior. In fact, FISA warrants can be approved only for what are called Full Investigations. These are the most serious class of investigations within the FBI and require an “articulable factual basis” to open: For counterintelligence cases on U.S. persons (USPERs), these cases involve facts demonstrating that the subject is in contact with and working on behalf of a foreign intelligence service. That means that, at some point prior to obtaining the FISA warrant, the FBI opened an investigation on Carter Page, obtained enough factual evidence to justify making it a Full Investigation, and would have done enough investigative activity to be able to put together a FISA application.

In fact, Page was already on the FBI’s radar as far back as 2013, when they obtained recordings of Russian foreign intelligence officials discussing targeting Page for recruitment. FBI officials at that time interviewed Page and warned him that he was being targeted – Page admitted that he had been in contact with these officers (not knowing they were Russian intelligence operatives) and has said that he shared “immaterial information and publicly available research documents” with the Russian spies. As former CIA officers and I have described, this would be consistent with the early stage of an intelligence recruitment process, and the FBI would have likely kept tabs on Russia’s efforts to see if they persisted and succeeded. There are even reports that Page was under FISA surveillance in 2014, which could have strengthened the basis for a new one in 2016 with renewed Russian interest in him. The Wall Street Journal reported that U.S. intelligence obtained intercepts as early as spring 2015 of Russians discussing “meetings held outside the U.S. involving Russian government officials and Trump business associates or advisers.” By the time Page joined the Trump campaign in 2016, the FBI would have had three years to monitor the recruitment process unfolding (Page continued his contacts with Russia through this time, and his unusual trip to Moscow in summer 2016 was no secret) – and this is the process the FBI would have outlined in its application to the FISA court in 2016 to demonstrate how and why Page was “engaging in clandestine intelligence activity on behalf of a foreign power” to obtain surveillance.

THE TAKEAWAY: If the Nunes Memo does not indicate when the investigation underlying the Page FISA application was opened or how many months/years of investigative activity preceding the dossier is detailed in the Page FISA application, it is not telling a sufficiently complete or accurate story.

2. Who in the DOJ conducted the Woods Procedures on the FISA application?

Here’s where the rubber meets the road in the FISA process. Even if the FBI were inclined to put together a slipshod FISA application, they can’t sneak it into court without going through a bunch of lawyers at DOJ. I’ve outlined the entire process previously, but it’s the careful vetting process conducted by the National Security Division known as Woods Procedures – named after the lawyer who developed this in-depth review, Michael Woods – where every fact contained in the application is verified. And by every fact, I mean every fact. To use a very straightforward example, say the FISA affidavit asserts that the target took a flight on a certain day. During the Woods Procedures, the agent would have to show the NSD lawyer the underlying case file, where the agent would have previously obtained, say, the passenger flight manifest for that flight from TSA and/or entry-exit information from USCIS to corroborate the assertion made in the affidavit (and a very good NSD lawyer would have the agent include that information in the affidavit itself). The same would have to be done with human source reporting, meaning that the FBI would use information gathered through different means to corroborate a source’s assertions. Can’t corroborate it? It doesn’t go in.

The hardcore tinfoil hat set will likely insist that the FBI would have just created a dummy case including fabricated evidence to prop up the FISA application and trick the DOJ. Good luck. The FBI has a case system in which every document that goes into a file is “serialized” based on the date it was added – in other words, you can’t backdate fake documents and insert them. The system is also digitized, and tamper proof, so you can’t go in and delete or fiddle with existing case documents. Finally, a single Full Investigation would be made up of a spiderweb of sub-case files – things like sources, travel, surveillances, or any other theme the case wants to track – all of which are interconnected to the main case and to other cases agents across the Bureau may be working on and might reference. (Fun fact: Hoover’s first job was at the Library of Congress, where he learned the idea of making a numerical cross-reference system that allowed any one detail contained in hundreds of thousands of files to be located immediately).

What if the FBI convinced the NSD to just skip the Woods Procedures? This would be a pretty huge risk for the NSD lawyers, since it is they, not they FBI, who have to present the FISA application to the FISA court. Without doing any kind of Woods Procedures, the NSD lawyers would be walking into a federal court without a solid basis to answer the questions a judge might ask about the underlying investigation or the target. Pro tip: This is not a good set up for getting a FISA order to be approved.

THE TAKEAWAY: If the Nunes Memo doesn’t address who conducted the Woods Procedures for the Page FISA application, any material deficiencies in those procedures, or address this part of the DOJ review process at all, it is skipping over a critical part of the vetting process.

3. Who was the federal judge who approved the FISA?

Here’s where the Nunes conspiracy theory gets really dicey: For it to be true, it necessarily involves members of the federal judiciary. This is because when all is said and done, the FISA judge – one of 11 district court judges who sit on the FISA court in rotation (and who were appointed by Republicans and Democrats) – makes the ultimate call. The current talking points from GOP House members who have seen them memo and buy its contents suggest that Nunes has attempted to get around directly implicating a federal judge in a conspiracy by suggesting that s/he got “tricked” by the wily FBI/DOJ.  In other words, the FBI and DOJ just happened to be assigned a judge who skipped breakfast and was running on such low blood sugar that they just didn’t pay attention to the details of a FISA application asking to surveil a USPER who just happened to be a former national security adviser to a current U.S. presidential campaign. Right.

Let’s start with a quick fact: Judges aren’t dummies (recent judicial nominees notwithstanding). Anyone who has worked with or appeared in front of a federal judge knows this, and no lawyer that I know would count on being able to hoodwink one. But even one running on low blood sugar on the day the DOJ came in with the Page FISA application would have had reason to perk up for two reasons. First, the FISA statute expressly prohibits approving electronic surveillance for “solely First Amendment activity.” Legally speaking, political activity is afforded the highest protection under the First Amendment, and Carter’s former role in the political campaign would have triggered extra scrutiny and questioning by the court regarding the probable cause stated in the application. Second, any sane judge would recognize the potential volatility of this FISA application, and understand that given Congress’ oversight role with FISA, the application could (and likely would) come under close scrutiny at some point. No judge in his or her right mind would have signed their name to a FISA order of this level without carefully reviewing the underlying facts.

THE TAKEAWAY: Alleging a concerted conspiracy by the FBI/DOJ in obtaining the Page FISA necessarily implicates the judge who approved it, and suggests they are incompetent (at best) or corrupt (at worst). If Nunes is alleging serious crimes on the part of the FBI and DOJ, he must put his money where his mouth is and identify the judge who approved the FISA application. If he doesn’t, it’s likely because even he knows that this would be taking his accusations too far.

4. Was the FISA warrant ever extended?

This is a critical question, because even if the FBI managed to “dress up” the dossier without any other supporting evidence, bypassed the vetting procedure, and got past a federal judge, the most they would get for all of this work is three months of surveillance. This is because when a FISA order is obtained on an USPER, the FBI must go back to the FISA court (perhaps before a different judge than the first time) within 90 days and demonstrate that the surveillance has, in fact yielded foreign intelligence substantiating the original probable cause alleging that the target is engaging in clandestine intelligence activity on behalf of a foreign power. If the FBI cannot show this evidence, the surveillance is terminated.

According to news reports, at least one other FISA warrant – the first one on former Trump campaign manager Paul Manafort – ceased. (Another one was subsequently obtained.) This shows that the FISA court takes this requirement seriously. More importantly, by the time Rod Rosenstein was appointed as Deputy Attorney General by President Trump, a FISA order on Carter Page, if it was still running, would have been in effect for close to six months. This means that the surveillance would have already been extended at least once by a FISA court based on new communications collected after the order, thereby validating the basis for the original order itself.

THE TAKEAWAY: Neither the FBI nor the DOJ has the power to extend a FISA surveillance order, they must request it. If a request to extend FISA surveillance that began in September 2016 was made by DAG Rosenstein in or around March 2017, the FBI had shown a federal judge that it had collected additional foreign intelligence information justifying the original order at least once already, around December 2016. The Nunes Memo should address the fact that additional information validating the original FISA order was obtained, and reviewed and approved by a (potentially additional) federal judge, in addition to new administration staff at the DOJ.

5. Has Robert Mueller used anything derived from the FISA in his investigation?

Anything that happened with regard to the original application for the Page FISA order would have occurred months before Mueller was even appointed as Special Counsel for the Russia investigation. Mueller, by all accounts (including my own experience having worked in the FBI under his leadership) does not tolerate nonsense. In taking over the investigation, he would have vetted all the underlying evidence that had been gathered so far, including anything gathered from FISA orders and the underlying basis for obtaining them. Let’s remember: This is someone who booted a highly seasoned counterintelligence investigator, Peter Strzok, based on text messages that surfaced that could create even a perception of bias. We know that Mueller sent FBI agents to interview Carter Page: It’s hard to believe that he would have proceeded in any way on Page if he was aware that the underlying investigation to that point had been based on anything but legal, corroborated information.

THE TAKEAWAY: Anything that discredits the Page FISA application by definition is intended to cast doubt on the Mueller investigation. (This may also be an attempted implication of the Nunes Memo if it tries to tar DAG Rosenstein, since each major step that has been taken by Mueller have been approved by DAG Rosenstein.) If this is the case, then Mueller should be named directly in the memo as someone who has personally engaged in misconduct in reliance on the Page warrant. If he is not, it is because Nunes knows that this is a line he cannot politically cross directly without real evidence – and is trying to do so indirectly.

* * *

In sum, the Nunes Memo reportedly alleges that at least a dozen FBI agents and DOJ prosecutors fabricated evidence, engaged in a criminal conspiracy to commit perjury, lucked out on being randomly assigned Judge Low Blood Sugar who looked the other way, and – coincidentally – ended up obtaining evidence that justified extending the initial FISA surveillance. This conspiracy was presumably signed off on by former FBI Director James “I Cannot Tell a Lie” Comey – who, while conspiring to bring down Trump, actually shifted the election in his favor by informing Congress he had reopened the Hillary Clinton email investigation one month after the Page FISA warrant. The sham FISA was validated by one or more federal judges who either didn’t know better or were in on the whole secret and later accepted and used by Special Counsel Mueller who was not a part of the FBI during this time at all.  And despite this widespread and outrageous conduct, the current Assistant Attorney General, a Trump appointee, wrote Nunes about the memo to say, “we are currently unaware of any wrongdoing relating to the FISA process.”

The answers to the questions above are necessary to substantiate allegations of misconduct in the FISA process. If Nunes has in fact singlehandedly uncovered this vast criminal enterprise, it’s hard to know what’s more astonishing: That a government bureaucracy managed to pull it off – or that Nunes has exposed it all in a scant four-page memo.

The Nunes Memo fails all five of these questions. Everyone involved in this outlandish conspiracy theory needs to be held to account.

3 Responses to House Intelligence Committee releases controversial Nunes Memo – and an analysis that destroys it

  1. Again, than you.

    Joe Bird

  2. To you and Asha: thank you and wonderful work and analysis. I suspect that Trump and his allies will not read this nor would they understand this logical and compelling analysis. I don’t know how we learn if the court was advised as to the history and funding of the Steel dossier, but suspect the court asked the question. Either the answer was “we don’t know” or the answer was revealed. If the court was not properly advised, I suspect the court could claw back a bit and demand an explanation. Silence form the court is equally compelling to me. The judge, his clerks and the lawyers presenting the application all know the truth. I trust it will be provided at some point. The interesting and sad point is that TRUMP and his minions think this is actually meaningful or shows bias in some fashion when it shows nothing other than revealing the process. Please keep up the excellent work.

  3. For Sure Not Tom

    Good work, Mr. Meanie.

    I read the memo earlier and it’s a knee-slapper. I LOL’d more than once. Nunes actually makes the case FOR the Russia investigation.

    If Nunes wasn’t part of Mueller’s obstruction of justice probe before, and I’m sure he was, he most certainly is now.

    And WTF, didn’t Nunes recuse himself months ago? After some, oh, what were they, ethics issues? He was actually colluding, for real colluding, with the White House, jumping out of cars in the middle and disappearing in the night!

    He’s a traitor to America and reeks of borscht.

    Next up – Trump fires Rosenstein, and giggling can be heard coming from Dick Nixon’s grave.