The Ugly Truth in the Nunes Memo
On Oct. 21, 2016, attorneys from the FBI and the Department of Justice sought and received a probable-cause order from the United States Foreign Intelligence Surveillance Court targeting an American citizen named Carter Page. This information was revealed in a recently declassified four-page memo prepared by the majority staff (i.e., Republicans) of the House Permanent Select Committee on Intelligence on behalf of the majority (i.e., Republican) members of the same committee. This memo has been at the heart of a political firestorm pitting the Republican chair of the House intelligence committee, Devin Nunes, against his Democratic co-chair, Adam Schiff, and the administration of President Donald Trump against the FBI, the DOJ and the U.S. intelligence community.
At stake is the credibility of the ongoing investigations by various congressional committees—including that of the House intelligence committee, as well as the criminal investigation by special prosecutor Robert Mueller—that arose from allegations that people associated with the campaign of then-candidate Trump colluded with the Russian government to interfere with the 2016 presidential election to tip it in favor of now-President Trump.
Page, a onetime volunteer foreign policy adviser to then-candidate Trump, was one of the people suspected of working with the Russians to undermine American democracy. The Foreign Intelligence Surveillance Act (FISA) warrant sought and executed by the FBI targeting Page has emerged as the focal point of the politicized issue surrounding allegations of Russian interference in the election and whether opponents of the Trump candidacy used the FBI investigation to spy on and undermine Trump’s presidency.
The release of the memo was a drawn-out piece of political theater, in which the committee voted along party lines to implement an obscure rule, allowing it to declassify information that had come into its possession as part of its oversight responsibilities. The memo was forwarded to the president, who had five days to decide either to block publication or send it back to the committee for action. This rule played out for the public to see, replete with objections from the Democratic minority, which sought to publish a dissenting memo, and the FBI and DOJ, which decried publication of the memo as a frontal assault on the American system of justice.
In the end, the memo was published with great fanfare, with both sides claiming that their respective positions were sustained.
The Republican case set forth in the memo is centered on its assertion that the FBI and DOJ made extensive use of a dossier containing derogatory information prepared by former British intelligence officer Christopher Steele, under contract to Fusion GPS, a research company contracted by the Democratic National Committee and Hillary for America to conduct opposition research into Trump’s candidacy. The Steele dossier, the conservative narrative goes, was then used to mislead the FISA court into granting the initial probable-cause order and three further extensions.
Democrats, backed up by the FBI and DOJ, counter that the memo is a meaningless collection of cherry-picked information that has been taken out of context and/or exaggerated to manufacture a case that cannot be sustained by the totality of the facts, most of which were omitted from the memo by its drafters. The Steele dossier, the Democrats contend, was but a small part of a larger collection of information that underpinned the justification for the FISA warrant targeting Page.
A plain read of the House intelligence committee majority memo appears to back up the Democratic stance that the case put forward by the Republicans was much ado about nothing. However, an investigation of the information suggested by the memo, but not spelled out in its text, sustains the Republican contention that either the FBI and DOJ engaged in a deliberate effort to deceive the FISA court, the FISA court is little more than a rubber-stamp entity that fails in its mission of protecting the civil rights of Americans targeted by the FBI, or both.
Any responsible examination of the issues surrounding the use of the Steele dossier in sustaining the successive FBI/DOJ applications for a FISA warrant targeting Page must start with an acknowledgement that, at the time of the publication of the House intelligence committee majority memo, Page has not been identified as a target of interest for the special prosecutor’s investigation into the issues he was accused of in the first place—namely, colluding with the Russian government to interfere in the 2016 presidential election. Page is, as of this writing, uncharged in the face of a FISA court warrant application process that is supposed to establish probable cause that a crime has been committed. This simple fact serves as a signal that something is wrong with the information the FBI and DOJ relied on in sustaining the case for a warrant. That three successive applications for extension of the FISA warrant were approved, even though each application was required to demonstrate that the previous warrant had produced intelligence that furthered the original case sustaining a finding of probable cause, is extremely problematic.
The House intelligence committee majority memo highlights how Steele researched the links between Trump and the Russian government. In the parlance of political campaigns, this kind of work is known as “opposition research.” Steele performed his tasks diligently, preparing some 16 memos under contract between June and October 2016. When added to a 17th memo prepared in December 2016, after his contract with Fusion GPS had expired, Steele’s work comprised 35 pages of material that collectively became known as the “ Steele dossier.” Much has been written about the contents of the dossier and their relationship to the investigation into possible collusion between people affiliated with Trump’s candidacy and the Russians. But the House intelligence committee majority memo sheds new light on the dossier, allowing for a more detailed examination of its contents and usage.
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