Thoughts on the Nunes Memo: We Need to Talk About Devin

After more than two weeks of mounting anticipation and hype, the memo 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 “worse than Watergate,” as Rep. Steve King tweeted last month? Or is it nothing more than disingenuous spin, as House intelligence committee Vice Chairman Adam Schiff argues—“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:

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 memo’s factual integrity. The FBI said in a statement 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 responded fiercely to the document’s release, saying that the 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, alleged 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 told 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 memo’s release has not been limited to Democrats. Republican Sen. Susan Collins of Maine said in a statement: “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 reports 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, reports 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?

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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 Buzzfeed published on Jan. 10, 2017—was a matter of intense public controversy. What’s more, incoming President Trump had been briefed 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.

Individual complaints listed in the Nunes memo include:

• The memo reports that the Steele dossier was an “essential” part of at least the initial FISA application. Although the initial FISA application does include the fact that Steele was working for a “named U.S. person,” the memo claims that neither the initial application nor any of the applications for renewal mentioned his connections to the Democratic National Committee and the Hillary Clinton campaign, which were indirectly funding his efforts through the law firm Perkins Coie. That law firm had hired the firm Fusion GPS to conduct opposition research on Trump, and Fusion GPS then retained Steele.
• The memo also asserts that the FBI “authorized payment” to Steele for his information on the Trump campaign. This fact was also not included in any of the FISA applications.
• The memo also claims that the initial FISA application “cite[s] extensively” a Yahoo News article by Michael Isikoff on Carter Page’s July 2017 trip to Moscow but “inaccurately assesses” that Steele did not provide information on his work to Isikoff. Also on the subject of Steele’s media contacts, the memo states that the FBI cut ties with Steele after discovering that he had discussed his relationship with the FBI with journalist David Corn, the Washington bureau chief of Mother Jones.
• According to the memo, Steele maintained contact with then-Associate Deputy Attorney General Bruce Ohr before and after he was terminated as a source. The FBI reportedly failed to include in the FISA warrant renewals that Steele had told Ohr that he “was desperate that Donald Trump not get elected and was passionate about him not being president.” Furthermore, Ohr’s wife was an employee of Fusion GPS, cultivating opposition research on the Trump campaign. The memo reports that Ohr’s relationship with Steele and Fusion GPS was not disclosed to the FISC.
• The memo quotes FBI Assistant Director Bill Priestap, head of the bureau’s counterintelligence division, as saying that the Steele dossier was in its “infancy” when the first FISA warrant application was submitted. A later source validation report conducted by the FBI assessed Steele’s report as “minimally corroborated.” In January 2017, Comey briefed President-Elect Trump on a summary of the Steele dossier even though it was “salacious and unverified.” The memo asserts that Deputy Director Andrew McCabe testified before the House intelligence committee that no surveillance warrant from the FISA court would have been sought without the Steele dossier information.
• The FISA warrant application reportedly mentions George Papadopoulos, and the memo says that while there was no established “cooperation or conspiracy” between Carter Page and Papadopoulos, the Papadopoulos intelligence triggered the FBI counterintelligence investigation run by Peter Strozk. Strzok was then reassigned by the special counsel’s office for text messages exchanged with FBI lawyer Lisa Page; text messages that demonstrate extensive discussions about the Mueller investigation, orchestrating leaks to the media and discussing a meeting with Deputy Director Andrew McCabe to discuss an “insurance” policy against Trump’s election.

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 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 argued on Lawfare this week, 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 insists 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. suggested Friday), the dates don’t add up: The FISA court granted the initial warrant against Page in October 2016, almost a month after he left the Trump campaign at the end of September. Moreover, as Paul Rosenzweig notes 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 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 reporting 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.