‘That’s it?’ The Nunes Memo big reveal is a dud, but the actions of Republicans have damaged our national security and federal law enforcement agencies

If you have not listened to the legal experts discuss the Nunes Memo on The Lawfare Podcast: Special Edition: Memo #Released, here is a post By Quinta Jurecic, Shannon Togawa Mercer, and Benjamin Wittes that summarizes the points made. Thoughts on the Nunes Memo: We Need to Talk About Devin:

After more than two weeks of mounting anticipation and hype, the on alleged surveillance abuses prepared by Rep. Devin Nunes, the chairman of the House Permanent Select Committee on Intelligence, has finally been #released. So does the memo document surveillance abuses “,” as Rep. Steve King tweeted last month? Or is it nothing more than disingenuous spin, as House intelligence committee Vice Chairman Adam Schiff —“a burn-the-house down strategy to protect the president”?

Former FBI director James Comey came down strongly on Schiff’s side Friday afternoon—suggesting as well that the memo didn’t pack much of a punch:

Screen Shot 2018-02-03 at 7.10.55 AM

Note: Zack Beauchamp at Vox.com captures the consensus reaction to the Nunes Memo, The Nunes memo is a dud: After reading it, “there is only one conclusion a fair reader could draw: There is absolutely nothing here.”

In brief, the four-page memo alleges that the FBI and Justice Department relied heavily on the “Steele dossier” to obtain a Foreign Intelligence Surveillance Act (FISA) warrant on former Trump campaign adviser Carter Page in October 2016 and that they failed to adequately explain to the FISA court that the dossier’s author, Christopher Steele, had voiced opposition to Donald Trump and had received funding from the Democratic National Committee and the Hillary Clinton campaign.

There are many reasons to doubt the [Nunes] memo’s factual integrity. The FBI said in a Jan. 31 that it was given only “a limited opportunity to review this memo,” the day before the House committee voted to release the document, and that it has “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”

The intelligence committee minority fiercely to the document’s release, saying that the [Nunes] memo “fails to provide vital context and information contained in DOJ’s FISA application and renewals, and ignores why and how the FBI initiated, and the Special Counsel has continued, its counterintelligence investigation into Russia’s election interference and links to the Trump campaign.”

Even before the memo came out, the ranking Democrat on the House intelligence committee, Schiff, in an interview with Anderson Cooper that Nunes hadn’t read any of the memo’s underlying materials himself. After the memo’s release, Schiff PBS: “And if you could read the entire FISA court application, you would see the body of evidence that they put before the FISA court. There are a number of things that are directly misleading in the Republican memo.”

Dismay over the [Nunes] memo’s release has not been limited to Democrats. Republican Sen. Susan Collins of Maine : “Prior to the release of this memo by the House Intelligence Committee, the Justice Department and the FBI raised serious and genuine concerns about the implications for our national security and stated that the memo omits key facts that ‘fundamentally impact the memo’s accuracy.’ It does not appear that any redactions or revisions were made to satisfy these legitimate concerns.”

Then there is the still-classified response memo drafted by committee Democrats, which they say they will seek a vote to release Monday. The New York Times  that this rebuttal questions some of the Nunes document’s key claims. The Democrats assert that the FBI disclosed more to the FISA court than the Nunes memo suggests, including the fact that the information provided by Steele was politically motivated. Furthermore, the Times reports, while the memo says that Andrew McCabe testified before the House intelligence committee that the Steele dossier was the motivating factor in seeking the FISA warrant, the Democrats note that the memo does not mention that McCabe also testified of other factors in the decision to seek a FISA application: Russian targeting of Trump campaign adviser George Papadopoulos, Carter Page’s July 2016 trip to Moscow and Russian hacking aimed at the Clinton campaign.

The Wall Street Journal, citing a source who has reviewed the FISA application,  that the dossier constituted only part of the application. Contradicting the Nunes document’s claims, the source indicated that the FISA application did, in fact, disclose that Steele was paid by a “law firm working for a major political party.”

There’s actually a lot more. But you get the point. The bottom line is that there are multiple reasons to expect that Nunes has not given a full and fair account of the FBI’s FISA process and that his memo is as factually deficient as it accuses the Carter Page warrant application of being.

But let’s briefly put aside the reality that the memo is probably neither a complete nor a fair account of the FBI’s handling of the Page matter. For a moment, let’s assume that every fact in the memo is true and that the memo contains all relevant facts on the matter—in other words, that it is entirely accurate and not selective. What would that mean?

As the document tells the story, on Oct. 21, 2016, the Justice Department and FBI successfully applied for a FISA warrant against Carter Page from the FISA court. Presumably, though the memo does not state this explicitly, it did so under Title I of FISA, as Page is a U.S. citizen and the warrant seems to have been an individualized one directed at him. The initial warrant was renewed three times, once every 90 days, each time requiring renewed showing of probable cause that Page was acting as the agent of a foreign power.

FISA warrants must be approved by both the FBI and the Justice Department. On behalf of the FBI, then-Director James Comey signed three warrants and Deputy Director Andrew McCabe signed one. Deputy Attorney General Sally Yates, Acting Deputy Attorney General Dana Boente and Deputy Attorney General Rod Rosenstein eached signed at least one warrant on behalf of the Justice Department. (Based on the 90-day clock, the renewals took place in January, April and July of 2017. Given who was in office at the relevant times, it seems likely that Comey and Yates signed off on the initial warrant in October 2016; that Comey and Yates signed off on the first renewal in January 2017; that Comey and Boente signed off on the second renewal in April 2017; and that McCabe and Rosenstein signed off on the third renewal in July 2017. Note that by the time of second and third renewals, and perhaps even by the time of the first renewal, the dossier—which —was a matter of intense public controversy. What’s more, incoming President Trump had been  on the dossier on Jan. 6, 2017, by FBI Director Comey. So to the extent that the FBI relied on Steele material in the renewals, it did so knowing it was invoking material that was already publicly controversial.

The post then cites the individual complaints set forth in the Nunes Memo.

To all of which, a reasonable person must ask: Huh? Indeed, if the above makes for difficult reading from which no particularly strong, let alone scandalous, narrative thread emerges, that’s because the points recounted (assuming they are true) don’t make out a coherent complaint.

To the extent that the complaint is that Page’s civil liberties have been violated, the outraged are crying crocodile tears. For one thing, it is not at all clear that Page’s civil liberties were, in fact, violated by the surveillance; the memo does not even purport to argue that the Justice Department lacked probable cause to support its warrant application. It does not suggest that Page was not, after all, an agent of a foreign power. What’s more, the only clear violation of Page’s civil liberties apparent here lies in the disclosure of the [Nunes] memo itself, which named him formally as a surveillance target and announced to the world at large that probable cause had been found to support his surveillance no fewer than four times by the court. Violating Page’s civil liberties is a particularly strange way to complain about conduct that probably did not violate his civil liberties.

To the extent the complaint is that the FBI relied on a biased source in Steele, the FBI relies every day on information from far more dubious characters than former intelligence officers working for political parties. The FBI gets information from narco-traffickers, mobsters and terrorists. Surely it’s not scandalous for it to get information from a Democrat—much less from a former British intelligence officer working for Democrats, even if he expresses dislike of a presidential candidate.

To the extent the complaint is that the bureau was insufficiently candid with the tribunal, that is a potentially more serious matter. But as Orin Kerr , it is far from clear that the allegation—even if true—would create any kind of legal defect in the warrant. And in any event, the court itself has the power to demand accountability to the extent judges feel misled. In Friday’s Lawfare Podcast, David Kris suggests that the government is likely considering how best to officially advise the FISA court of the Nunes memo and so provide the court with an opportunity to respond to the memo’s allegations. If the court chooses to issue a public response—which, as Kris points out, it may well not—it will be interesting to see whether the judges sound more like the hyperventilating House Republicans or more like Comey’s tweet.

Then there is the suggestion that the memo somehow taints the entire Robert Mueller investigation. House Speaker Paul Ryan that the memo has nothing to do with the Mueller probe. But that is not the way others talk about it. Indeed, it seems that the only reason anyone—particularly the president—cares about the Page warrant is that its supposed birth in the original sin of the Steele dossier somehow renders the entire investigation illegitimate or politically motivated.

But this notion has at least three big problems. First, it’s not remotely clear that anything in the contemporary Mueller investigation is the fruit of surveillance of Carter Page. For all we know, the surveillance of Page produced material of counterintelligence value that is utterly extraneous to anything related to the Mueller investigation. What’s more, if the complaint is that the surveillance of Page somehow amounts to surveillance of the Trump campaign (as Donald Trump Jr.  Friday), the dates don’t add up: The FISA court granted the initial warrant against Page in October 2016, almost a month after he at the end of September. Moreover, as Paul Rosenzweig in Politico, a FISA warrant granted only weeks before the election would not have been able to produce any evidence until well after votes had been cast.

Second, as to taint, there is no legal basis on which to assert that a defective warrant against one person systematically delegitimizes an entire investigation. Page has not been indicted. Were he to be, he would surely be able to file a suppression motion arguing that there was some legal defect in the surveillance against him. But nobody else gets to assert that for him. And it simply isn’t the case that a defective warrant against one person renders all derivative fruits of that surveillance untouchable against all other people.

Third, the [Nunes] memo itself falsifies the premise that the probe was the illegitimate offspring of Christopher Steele. Its final page notes that information provided by Trump campaign adviser George Papadopoulos “triggered the opening of an FBI counterintelligence investigation in late July 2016”—essentially confirming the New York Times’s earlier on the subject. In other words, the document acknowledges that the FBI had already begun a counterintelligence investigation involving the Trump campaign three months before the FBI and the Justice Department applied for the initial FISA warrant against Page. And the FBI opened that counterintelligence investigation not on the basis of the Steele dossier but information from Papadopoulos (who is now cooperating with the special counsel’s office in the Russia probe). So even if the Steele dossier is a poisonous tree, the Russia investigation is not its fruit.

Ironically, the clearest analytical takeaway from the facts recounted in the memo is that repeated combinations of FBI and Justice Department officials sought and received FISA court approval for surveillance of Carter Page. What this means, we do not purport to know. But it seems most unlikely, in our judgment, to suggest a sustained misleading of the court by the department and the FBI on a matter of high political sensitivity and extreme publicity.

At the end of the day, the most important aspect of the #memo is probably not its contents but the fact that it was written and released at all. Its preparation and public dissemination represent a profound betrayal of the central premise of the intelligence oversight system. That system subjects the intelligence community to detailed congressional oversight, in which the agencies turn over their most sensitive secrets to their overseers in exchange for both a secure environment in which oversight can take place and a promise that overseers will not abuse their access for partisan political purposes. In other words, they receive legitimation when they act in accordance with law and policy. Nunes, the Republican congressional leadership and Trump violated the core of that bargain over the course of the past few weeks. They revealed highly sensitive secrets by way of scoring partisan political points and delegitimizing what appears to have been lawful and appropriate intelligence community activity.

It was a heavy blow to a system that has served this country well for decades, and it is one that will not be forgotten any time soon.

UPDATE: Orin Kerr, in the podcast above, follows up with an op-ed in the New York Times. The Nunes Memo Is All Smoke, No Fire:

The #Memo has been released. This document from House Republicans promises to detail government abuses surrounding 2016 election surveillance. But the memo is more confusing than illuminating. It doesn’t so much provide evidence about abuses as make arguments that can’t be evaluated based on the facts it discloses.

Even assuming the memo’s claims are true — which we can’t determine from the document itself — it still does not establish an “abuse” of the foreign intelligence laws.

34 thoughts on “‘That’s it?’ The Nunes Memo big reveal is a dud, but the actions of Republicans have damaged our national security and federal law enforcement agencies”

  1. The Washington Post’s fact checker Glenn Kessler fact checks “Does the GOP memo show the FBI spied on the Trump campaign?” https://www.washingtonpost.com/news/fact-checker/wp/2018/02/03/does-the-gop-memo-show-the-fbi-spied-on-the-trump-campaign/?utm_term=.57fc9eb98c96

    The Pinocchio Test

    The GOP memo provides no evidence that the FBI spied on the Trump campaign. Instead, it shows that the court order for surveillance of Page was obtained weeks after Page and the Trump campaign had said Page was no longer part of the campaign. Trump has asserted that he never even met or spoke to Page.

    Moreover, the GOP memo confirms that the separate investigation into Russian contacts with the Trump campaign was prompted by information that was not contained in the Steele dossier.

    One wonders if Republicans making claims of FBI spying on the Trump campaign have even read the memo. Such statements earn Four Pinocchios.

    Four Pinocchios

    • Martha’s spin…”transparency” (we deserve it).

      Martha McSally
      ‏Verified account
      Feb 2

      I read this troubling memo weeks ago & fully support its release. The American people deserve transparency. The intel committee went through the proper process to release it w/out jeopardizing national security–other memos undergo the same process. ➡️ https://goo.gl/uh9t7Q

  2. Conservative columnist Brett Stephens writes, “Devin Nunes’s Nothingburger”: Gertrude Stein once said of her hometown of Oakland, Calif., “There is no there there.” That about says it for Devin Nunes’s notorious memo, too. https://www.nytimes.com/2018/02/02/opinion/devin-nunes-memo.html?rref=collection%2Fsectioncollection%2Fopinion-columnists

    Conservative columnist Jennifer Rubin writes, “Nunes drops his cherry-picked memo: This is it?!”: In short, other than the memo confirming that Nunes and Trump are collectively out to discredit the intelligence community and to thereby impede the investigation into the president’s alleged wrongdoing, I cannot for the life of me figure out what this proves. https://www.washingtonpost.com/blogs/right-turn/wp/2018/02/02/nunes-drops-his-cherry-picked-memo-this-is-it/?utm_term=.e1c22177c091

  3. That vote was before the memo and even if it was not, maybe they don’t believe in throwing out the baby with the bath water. That was a really weak argument.

    I want to see the minority report and have a special counsel appointed to boot. So I see your minority report and raise you a special counsel. Are you in????

      • Oh spare me your nonsense. The Nunes memo was being leaked by congressional Republicans to conservative media for weeks, including before the FISA renewal vote. There is little in the memo that had not long before been tested as a trial balloon on FAUX News.

        If the House Intelligence Committee truly believed the FBI and DOJ were engaged in abuses of FISA, its oversight function imposed a duty and obligation to make it an issue as part of the FISA renewal before the full House. They did not. In fact they voted for the FISA renewal.

        And there already is a special counsel fully empowered to look into all matters related to the Russia investigation. What you are suggesting is a parallel investigation to investigate the investigators to provide a distraction from the Russia investigation. That is unwarranted by the facts.

        • Mueller has a conflict of interest here but I suppose because Trump is the Target, you will not care.

          • Conflict of interest? Please show your work that backs up your conclusion. And citing Faux Noise/Breitbart/Infowars or any other right wing hack outlets won’t cut it.

  4. The memo raises serious questions about FISA abuse and the politicization of the FBI, or at least its upper echelon – questions that civil liberties-minded democrats and the ACLU once gave high priority to before the potential abuses targeted Trump. What hypocrisy!

    Some key points from yesterday’s Wall Street Journal editorial:

    1. The memo says an “essential” part of the FISA application was the “dossier” assembled by former British spy Christopher Steele and the research firm Fusion GPS that was hired by a law firm attached to the Clinton campaign. The memo adds that former FBI Deputy Director Andrew McCabe told the committee in December 2017 that “no surveillance warrant would have been sought” without the dossier.

    2. …the memo also discloses that the FBI failed to inform the FISA court that the Clinton campaign had funded the dossier. The memo says the FBI supported its FISA application by “extensively” citing a September 2016 article in Yahoo News that contained allegations against Mr. Page. But the FBI failed to tell the court that Mr. Steele and Fusion were the main sources for that Yahoo article. In essence the FBI was citing Mr. Steele to corroborate Mr. Steele.

    3.Unlike a normal court, FISA doesn’t have competing pleaders. The FBI and Justice appear ex parte as applicants, and thus the judges depend on candor from both. Yet the FBI never informed the court that Mr. Steele was in effect working for the Clinton campaign. The FBI retained Mr. Steele as a source, and in October 2016 he talked to Mother Jones magazine without authorization about the FBI investigation and his dossier alleging collusion between Russia and the Trump campaign. The FBI then fired Mr. Steele, but it never told the FISA judges about that either. Nor did it tell the court any of this as it sought three subsequent renewals of the order on Mr. Page.

    4.We also know the FBI wasn’t straight with Congress, as it hid most of these facts from investigators in a briefing on the dossier in January 2017. The FBI did not tell Congress about Mr. Steele’s connection to the Clinton campaign, and the House had to issue subpoenas for Fusion bank records to discover the truth. Nor did the FBI tell investigators that it continued receiving information from Mr. Steele and Fusion even after it had terminated him. The memo says the bureau’s intermediary was Justice Department official Bruce Ohr, whose wife, incredibly, worked for Fusion.

    5. …But note that Democrats aren’t challenging the core facts that the FBI used the dossier to gain a FISA order or the bureau’s lack of disclosure to the FISA judges.

    • 1. The FISA application was based on Carter Page hobnobbing with the Russians, the application was made back in 2013. In normal people’s time that would predate the Steele Dossier.

      2. The dossier was initially funded by the Washington Examiner, which is a conservative organ, to support another Republican primary candidate. True, after that candidate dropped out the Clinton campaign hired Fusion GPS to continue Steele’s work. Regardless, this is known as opposition research which is common to political campaigns. Or did you not know that?

      3 & 4. So ridiculous that it’s not worth commenting.

      Seriously Senator, on which planet do you spend your time? Sure isn’t the reality here on Earth! And yet you whine & wonder why no one here has a modicum of respect for you.

        • The first part of your reply is deliberate projection on your part. If being a patriotic American (as many here are) is partisan then guilty as charged.

          Al Franken put it best: “We love America just as much as they do. But in a different way. You see, they love America like a 4-year-old loves his mommy. Liberals love America like grown-ups. To a 4-year-old, everything Mommy does is wonderful and anyone who criticizes Mommy is bad. Grown-up love means actually understanding what you love, taking the good with the bad and helping your loved one grow. Love takes attention and work and is the best thing in the world. That’s why we liberals want America to do the right thing. We know America is the hope of the world, and we love it and want it to do well.”

          Your president, the Republican party (and by extension, you with your blind support), is doing everything he can to destroy what the United States of America stands for along with our precious Democracy. You must be so proud.

        • Typo on my part. Should have read “3 & 4 & 5.” I can admit to and correct my errors, ’tis a pity you’re incapable of the same.

          Interesting you attack the source of the quote instead of the truth of the quote itself. Anything to deflect & distract, right Senator?

          • Hey, Little Cryin’ Johnny, how about you tell us why Trump won’t enact the Congressionally mandated sanctions against Russia, even though his own CIA director says Russia continues to attack the US and our allies and he expects them to interfere in the next election as well.

            Because that’s the core of what this is all about, Trump’s ties to Russia. They own your boy and you know it.

            Tell us it has nothing to do with Trump enjoying a good spanking with a rolled up Forbes magazine from a porn star or how he likes to watch Russian hookers pee on each other.

            The Trump’s and Kushner’s have long histories of failed businesses and criminal records, and decades of laundering Russia mob money, you know this is true.

            They’re Putin owned, bought and paid for, and you and your party reek of borscht and desperation.

          • “Even when contrite, you are arrogant. That is a character flaw you should work on.”

            Speaking of arrogant character flaws….Senator Pot, meet Senator Kettle.

    • Of course its extremely convenient the classified portions, or the Democratic minority report cannot be revealed. It appears Patel’s “memo” reached a conclusion that cherrypicked portions to support a preetermined outcome. Even then the memo is lots of nothing. So whereever the daily right wing talking point coordination meeting is held every day, John is following his directive. If everyone assumes everything Trump says is a lie, we all will be safe.

      • It’s classic Conservative reverse-engineering. Pick a conclusion and assemble only those facts that support that conclusion. Their M.O. in all facets of their governance. Dangerously scary when applied by the Supreme Court & the military.

        These Democracy hating/destroying dirtbags need to be held accountable. If they are allowed to continue then we will wind up in a feudal hellhole.

        • Despite your president’s efforts to obstruct him, Mueller’s getting at the truth.

          Perhaps if you and your party stood for and abided by the rule of law instead of the rule of Trump then the whole truth would more quickly come out. But the Republican leadership, especially Trump, McConnell, and Ryan are too cowardly to let that happen. And apparently you and the rest of the Party over Country crowd stand with them.

          • The Putin/Kim/Gosar school of law enforcement. Any criticism of the great leader is treason.

        • Republicans calling for a Republican Special Counsel to investigate Republican Special Counsel investigating Republicans.

          What does that remind me of? Oh, yeah, matryoshka dolls!

    • If the DOJ and FBI are abusing FISA warrants, then why did the House recently agree to renew Title VII of the Foreign Intelligence Surveillance Act (FISA) for six years, with some reforms, on a vote of 256-164, and the Senate followed suit on a vote of 65-34? This vote included members of the House Intelligence Committee and House GOP Freedom Caucus who are hyping the Nunes Memo.

      Pro Tip: Never rely on Rupert Murdoch’s Wall Street Journal editorial page for legal analysis. They are simply regurgitating the misleading and factually incorrect Nunes Memo.

      I previously posted the analysis of Asha Rangappa, a former FBI agent who has been through the process of obtaining warrants under the Foreign Surveillance Intelligence Act (FISA), at the Just Security web site of the New York School of Law. “Five Questions the Nunes Memo Better Answer,” https://www.justsecurity.org/51630/five-questions-nunes-memo-answer/

      This is addition to the legal experts linked in the Lawfare post above. You really should listen to the legal experts opinion in the Lawfare podcast linked above.

      The Democrats will seek a vote on their minority report rebutting the Nunes Memo on Monday. The Republicans on the committee have already voted against release of the minority report. If you truly believe in transparency, the minority report should also be released. This will require President Trump to declassify the minority report, which I seriously doubt that he will do, because he wants to control the narrative on FAUX News with the misleading and factually inaccurate Nunes Memo to play to his base of Kool-aid drinkers.

      • That vote was before the memo and even if it was not, maybe they don’t believe in throwing out the baby with the bath water. That was a really weak argument.

        I want to see the minority report and have a special counsel appointed to boot. So I see your minority report and raise you a special counsel. Are you in????

    • Uh oh! Your FISA abuse claim has been blown up.


      Nunes cherry picked for his memo, and left out the part about the footnotes.


      “Republican leaders are acknowledging that the FBI disclosed the political origins of a private dossier the bureau cited in an application to surveil former Trump campaign adviser Carter Page, undermining a controversial GOP memo released Friday and fueling Democratic demands to declassify more information about the bureau’s actions.”

      Just admit that Nunes is a stooge and the entire purpose of the memo was to muddy the waters for weak minded Trump supporters.

      Cough, hack… so much smoke…

  5. From the alternate universe of Donald Trump…

    Donald J. Trump
    ‏Verified account
    2h2 hours ago

    This memo totally vindicates “Trump” in probe. But the Russian Witch Hunt goes on and on. Their was no Collusion and there was no Obstruction (the word now used because, after one year of looking endlessly and finding NOTHING, collusion is dead). This is an American disgrace!

    2h2 hours ago

    Rasmussen just announced that my approval rating jumped to 49%, a far better number than I had in winning the Election, and higher than certain “sacred cows.” Other Trump polls are way up also. So why does the media refuse to write this? Oh well, someday!

    • The Banana Republicans are scared that Putin will release the pee-pee tape before they can roll back The New Deal.

      • Yeah, their shelf life is fast approaching the expiration date.

        These people really don’t give a damn about their country.

      • Heard that Bill O’Liely’s mini-me, Jesse Watters, was pontificating that there is no pee-pee tape because who would sleep in a urine soaked bed? Well, if the hookers were truly stunning, Trump would probably delight in wallowing in the squishy mattresses. Yes, that’s gross but consider that all in all Trump is a gross and disgusting excuse for a human being. Or should I say humanoid?

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