Even taken on its own terms, the Nunes memo does nothing that Trump claims. But it does show us something—with deep ramifications for the intelligence community, the Russia investigation and maybe even the presidencyby Calder Walton / February 7, 2018 / Leave a comment
Republicans on the US House Intelligence Committee have released their long-awaited memo, which, according to Fox News, contains the greatest constitutional abuse in modern times. Pundits on Fox claimed it would show there was a “Deep State” conspiracy at work, undermining the president and his supporters, and “prove” the Trump-Russia investigation is a fraud.
When the four-page memo was finally released last Friday after much fanfare, it was predictably a let-down—a “nothing burger,” to use Washington’s current vernacular. But on closer inspection, it is a nothing burger with a large amount of Russian dressing.
Far from undermining the validity of the Russia investigation into president Trump, as the White House hoped, the memo actually reveals the Russia investigation is wider, and independent, than the memo’s narrow claims. It is a spectacular own-goal for Republicans trying to undermine the Trump-Russia investigation.
The memo was driven through by the Republican Chairman of the House Intelligence Committee, Devin Nunes, and declassified on the authorization of the president himself.
The Nunes memo, as it was known even before its release, attacks the “legitimacy and legality” of the FBI and Department of Justice (DOJ) during the 2016 presidential campaign and suggests a “troubling breakdown” of US legal order to protect abuses of spying on US citizens.
At its core, the memo alleges that the FBI and DOJ used politically-biased information in an application for an electronic interception warrant, known as a FISA warrant, on a US citizen advising the Trump campaign, Carter Page. The information in question derived from the now-infamous dossier on Trump’s connections with Russia compiled by a former British intelligence officer, Christopher Steele.
The Nunes memo asserts that, when seeking the FISA warrant, the FBI and DOJ failed to disclose that the now-infamous Steele dossier was paid for by the Democrats and Hillary Clinton and was thus politically-motivated and biased. As a result of their non-disclosure to the court, runs the argument, the FISA warrant was tainted, thereby contaminating its results.
It did not take long for president Trump to go further, tweeting the next morning, Saturday, that the Nunes memo “totally vindicates” him and shows the Russia investigation is a “Witch Hunt.”
There is now a real prospect that, like some kind of tin-pot dictator, Trump will use the Nunes memo as a basis for shutting down the investigation into his election campaign.
The British dossier and the American memo
Even taken on its own terms, the Nunes memo does nothing that Trump claims. In order for the memo’s conspiracy theory to work— for a conspiracy is literally being alleged—one needs to believe several things, all of which have been undermined since its publication on Friday.
First, take the Steele dossier, the poisoned fruit that allegedly infected subsequent investigations into Trump. The hard fact is that, after a year of scrutinizing the Steele dossier, nothing in it has so far been disproved. The Nunes memo does not allege the dosser is wrong— because it cannot do so. Some of the Steele dossier’s allegations remain unverified, especially its more salacious details—readers can discover for themselves why it is called “pee-pee gate”— but that is not unusual in the first-draft of an intelligence report, which is what the dossier is.
The Nunes memo emphasised that Steele himself was politically motivated, “desperate that Donald Trump not get elected and was passionate about him not being president.” How, why, or with what consequences is not explained. Steele is not a US citizen and cannot vote in US elections.
More importantly, the Nunes memo omits a crucial point: the outfit that employed Steele to investigate Trump’s connections with Russia was first funded not by Democrats, but by Republican candidates seeking opposition research on Trump. Steele was apparently so alarmed about what he uncovered from his Russian sources, suggesting that Trump may be susceptible to Russian blackmail, that he reported his findings to the FBI.
It is a perverse situation when a professional who sees what appears to be a serious national security crime being committed, sounds the alarm, but is then publicly vilified for doing so. Contrary to the Republican assault on Steele’s reputation, he has a strong reputation within MI6—he used to head its Russian desk—and within US intelligence. One well-placed source told me that MI6 only ever sends its best officers undercover to Russia, which it did with Steele.
Just a few hours after the Nunes memo was released on Friday, it was reported that the FISA court had indeed been informed that the Steele dossier came from “political” information. The problem is that we do not know what the court was told: the FISA application and warrant are still classified. All we have is a memo summarizing—apparently selectively—one side of the application.
In the absence of evidence to the contrary, we have to assume that the US federal court—with rotating judges appointed by both political parties—did its job and considered the underlying facts when granting the FISA warrant on Carter Page.
An awkward fact for Republicans contained in the Nunes memo is that the FISA court reviewed, and renewed, the warrant on Carter Page on three subsequent separate occasions after its initial authorization. The grounds for doing so are that the warrant is producing intelligence. No matter how the court viewed and used the Steele dossier at the outset, it was irrelevant thereafter as a basis for continuing the FISA warrant, which would have had to be producing intelligence to be renewed. It is also possible there were four separate judges who examined the FISA application and agreed to it on the four times it came before the court. If there is a conspiracy at work, it is elaborate.
Who is Carter Page?
We must also consider Page, the oddly-dressed eccentric, who, within the Republican-spun narrative, is an innocent US citizen whose privacy has been violated by politically-biased FBI, DOJ, and maybe even a Federal court. Page may be innocent, but he was certainly mixing in suspicious circles.
He was an economic adviser to the Trump campaign, who caught US media’s attention last year in a series of tongue-tied media appearances in which he made his own case about secret meetings with Russian officials more suspicious, not less. The Nunes memo omits another important fact about Page: that he was under FBI investigation as far back as 2013 for having connections with Russian intelligence—three years before the Steele dossier or the Trump campaign. The FBI reportedly identified Page in a Russian spy ring it busted in New York, when FBI officers monitored Russian’s foreign intelligence service, SVR, attempting to recruit Page. Even if this is not true, it emerged this weekend that in 2013 Page had remarkably bragged that he was an advisor to the Kremlin. Another plank in the Nunes memo fell away.
If one looks at all this another way—given Page’s self-proclaimed 2013 advisory connections with the Russian government, and with his name caught up in a Russian spy ring in New York in which Russian intelligence attempted to recruit him as an agent, and with Page then acting as an economic adviser to the Trump campaign—it would have been a dereliction of duty if the FBI had not investigated him.
Awkwardly for Republicans, the Nunes memo shows that the FISA warrant on Page was not obtained until October 2016, after Page left the Trump campaign (under a cloud of Russian suspicion). One is left scratching one’s head about how any of this helps exonerate the Trump campaign.
Memogate: the politicization of US intelligence
If the Nunes memo were really about correcting abuses of a FISA warrant, these could have been addressed by appealing the FISA warrant to a higher court, as the legislation provides— not blowing up the entire process by declassifying it. There is a strong stench surrounding the Nunes memo of a political hit-job on the FBI, aimed at undermining the Russia investigation, all of which seems confirmed by Trump’s triumphant tweet that he was exonerated.
The Nunes memo is certainly a one-sided account. Democrats say it cherry-picks facts while omitting material contrary facts. Democrats on the House Intelligence Committee, led by Adam Schiff—who Trump mocks as “little Adam Schiff”—have written their own memo, giving the other side. For it to see the light of day, president Trump will need to agree to its declassification this week.
It is anyone’s guess if he will do so, given that it will inevitably undermine his claims that the Russia investigation is illegitimate. However, the White House will find it difficult to block its release, given that “transparency” was the basis for releasing the Nunes memo.
But then what? The Democrat memo will probably produce another Republican counter-memo; Nunes has already suggested that he has further memos up his sleeve. (Staggeringly, he also admitted that he has not actually read all the underlying classified material in the FISA application, which amounts of 50-70 pages.) At present, the US public therefore has something akin to a book report written by someone who has not even read the book.
Behind all the US political acrobatics surrounding the Nunes memo, it is worth appreciating how far from normal US intelligence oversight is at this point. The Nunes memo is the greatest breakdown of bi-partisan US intelligence oversight in modern times. Ever since modern oversight of the US intelligence community was established in the 1970s, following revelations of domestic spying on US citizens, oversight committees have always managed to issue their findings on a contemporaneous bipartisan basis.
Even when Democrats and Republicans on intelligence oversight bodies sharply disagreed—as during investigations into CIA torture—they always released their findings together, at the same time, in reports containing two separate views, so the American public could make an informed decision.
This is the first time in US history when a chairman of the House Intelligence committee has unilaterally pushed through declassification of a sensitive report, not only against the wishes of others on his committee, but also against the express advice of the DOJ and the FBI, which warned of their “grave concerns” about the memo. Nunes, the head of one of America’s most important intelligence oversight bodies, whose portfolio contains matters ranging from counter-terrorism to counter-espionage, seems more determined to do Trump’s bidding than his oversight job.
But that is not all: for the first time in US history, details about a FISA warrant and a FISA target—hitherto some of the most sensitive subjects in US intelligence—have been publicly disclosed. Long-established principles of intelligence oversight and intelligence collection are being obliterated by the Trump administration, with US national security being politically kicked around like the Super Bowl.
It seems inevitable that the Nunes memo will undermine confidence between the White House and the FBI, DOJ, and FISA courts, needed to enact electronic surveillance on a US citizen— one of the most legally sensitive operations for US intelligence. It will also likely undermine the confidence of international allies in US intelligence, who will legitimately question whether information they provide US agencies will be safe from political interference and disclosure.
Russian roulette continues in the White House
Of all the claims in, and omissions from, the Nunes memo, there is a statement on its final page that stands out: it states that the FBI’s counter-intelligence investigation into the Trump campaign was triggered by information from another Trump adviser, George Papadopoulos. In other words, the Nunes memo admits that the FBI’s Russia investigation into Trump campaign is separate from Carter Page.
This admission does not just remove yet another central plank in Trump’s claim that the Nunes memo exonerates him, but destroys the whole edifice on which the claim rests.
If the FBI Russia investigation is separate to the FISA warrant on Carter Page, then any wrongs done under that FISA warrant cannot contaminate the Russia investigation. Even the House Speaker, Paul Ryan, has stated that the Nunes Memo does not impact the Russia investigation into Trump. At this stage, the Russia investigation is like a Russian doll, with layer upon layer of people in Trump’s campaign and administration being revealed with undisclosed connections with the Russian government. Meanwhile, Trump dismisses the entire investigation as fake news.
The question seems not if, but when, he will try to shut it down, in a modern-day re-enactment of what president Nixon tried to do during Watergate. Maybe, just maybe, Trump will read some history about Watergate to understand the constitutional crisis he would create if he tries to do so. But then again, maybe he doesn’t care.