I’m going to do something that should only be done with much humility and trepidation. I’m going to disagree with my colleague Andy McCarthy. Yesterday he wrote a sharp and detailed analysis of the newly released Adam Schiff memo. Schiff’s memo purports to rebut key claims in the four-page memo that Devin Nunes released last month. Andy argues that the Schiff memo hurts Democrats more than it helps, that it actually exposes problems with the FBI’s approach.
While I share many of Andy’s concerns, my bottom-line takeaway is the opposite. To the extent that the memo has any bearing on the public debate, it undermines Republican claims. Specifically, it indicates that parts of the infamous “Steele dossier” may now be verified, asserts that Carter Page’s lies may have helped trigger the FISA application, and provides an exact quote from the FISA application that undermines GOP claims of deception.
Before I begin my own analysis, it’s worth stating that both the Nunes and the Schiff memos are poorly drafted documents. They’re both primarily political instruments. This is not how responsible congressional oversight is done.
If a congressional committee majority is going to make substantial charges of Department of Justice wrongdoing, it should do so through a carefully researched majority report that provides supporting evidence for each and every inflammatory charge. If the Democrats wish to rebut those charges, then they should do so through a minority report that also shows its work. Instead, we have dueling memos that seem mainly designed to trigger competing, outraged cable news hits.
But the memos are not entirely useless. They’re just mostly useless. And to the extent they’re not entirely useless, they do seem to collectively establish the following basic facts:
1)The so-called Steele dossier formed at least part of the Carter Page FISA application;
2) The DOJ informed the court that the Steele dossier was commissioned by a person “likely looking for information that could be used to discredit” Donald Trump’s campaign;
3) The DOJ ultimately terminated Steele as a source and disclosed that termination to the FISA court;
4) Four GOP-nominated judges approved or renewed the FISA warrant; and
5) The investigation of the Trump campaign’s ties to Russia began months before the Page FISA application.
The uncontested facts, read together, don’t show the existence of a scandal. There’s a scandal if the DOJ used the Steele dossier in bad faith, if it materially misled the court, or if it otherwise violated the governing statutes. At its most effective, the Schiff memo contradicts Republican claims with actual evidence. At its least effective, it contests unsupported Republican conclusions with its own, unsupported Democratic contradictions — leaving the American people completely in the dark.
No one should think that opposition research is always inaccurate. Sometimes even partisan investigations can reveal real wrongdoing.
Does the Schiff memo help us understand whether the DOJ used the Steele memo in bad faith? Maybe. There are a lot of Republicans laboring under the impression that use of the Steele memo in any capacity is scandalous. The words “salacious and unverified,” used by James Comey, in his congressional testimony, to describe parts of the Steele dossier, are seared into their brains. So is the phrase “Hillary Clinton opposition research.” No doubt the Steele dossier is salacious, but never forget that “unverified” is not the same thing as “false.” Moreover, no one should think that opposition research is always inaccurate. Sometimes even partisan investigations can reveal real wrongdoing.
Thus, the question is whether it was reasonable for the DOJ to rely in part on the Steele dossier in its FISA application. Without reading the FISA applications, it’s extraordinarily difficult to know whether the DOJ adequately made its case, and the Schiff memo, with its selective, heavily redacted history of Page’s Russia contacts, fails to illuminate. There is, however, a tantalizing section highlighted by former CIA intelligence officer (and current host of America Now) Buck Sexton:
Unless lives are at stake, those redactions should be removed. If material parts of the Steele dossier are confirmed, then, quite frankly, it changes the debate. Much of the basis for this entire scandal is the presumption that the dossier was fake news from start to finish. If material portions of Steele’s reporting are corroborated, then the DOJ’s actions look much more reasonable and defensible. If, however, the “corroboration” was immaterial, then we’re right back to asking whether the DOJ acted in good faith when it put an inaccurate document before the court.
As Julian Sanchez notes, there are also indications that Page may have lied publicly about meetings the FBI had reason to believe actually occurred. And Schiff claims that Page kept lying. He alleges (again, in heavily redacted sections) that available evidence “contradicts [Page’s] sworn testimony” before the committee. Part of the defense of Page has rested on his prior cooperation with the FBI, when he worked with the FBI against Russian interests. If Page, however, was engaged in deceptive behavior both before and after the initial FISA application, then it bolsters the DOJ’s argument that surveillance was necessary, lawful, and prudent.
While the Schiff memo only hints at important evidence about the dossier, it does do something important that the Nunes memo does not. It provides the exact quote of the footnote in which the DOJ disclosed the source of Steele’s funding. According to the Schiff memo, the footnote disclosed that Steele
was approached by an identified U.S. Person [Fusion GPS founder Glenn Simpson], indicated to Source #1 [Steele] that a U.S.-based law firm had hired the identified U.S. Person to conduct research regarding Candidate #1’s [i.e., Trump’s] ties to Russia. (The identified U.S. Person and Source #1 have a longstanding business relationship.) The identified U.S. Person hired Source #1 to conduct this research. The identified U.S. Person never advised Source #1 as to the motivation behind the research into Candidate #1’s ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1’s campaign. [Emphasis in Schiff memo, p. 5]
There are those who argue that this disclosure is insufficient. I disagree. “Information that could be used to discredit” a campaign is basically the very definition of opposition research. It clearly communicates bias.
Moreover, as Orin Kerr aptly pointed out in a piece last month, there are quite a few reported cases exploring the question of informant bias, and the outcomes are generally favorable to the government. Judges are well aware that informants are often biased, judges are capable of probing the government for additional information, and even if there is a material omission of information about bias, a warrant is still valid if the evidence otherwise contains additional supporting evidence that provides probable cause for the search.
While the Schiff memo is at its most persuasive when it cites actual evidence, it’s at its least persuasive when it does what the Nunes so often did — make conclusory assertions rather than quote the available disclosures. For example, Schiff declares that the FBI “properly notified the FISC” after it terminated Steele, but it does not quote that notification. Why quote the disclosure about Steele’s bias but not the disclosure about Steele’s termination? Perhaps the disclosure about the termination is more problematic. We don’t know.
Schiff asserts that in addition to George Papadopoulos, multiple other Trump campaign officials were already under investigation by the date of the Page FISA application.
The Schiff memo suggests that the initial Carter Page FISA application was at least 56 pages long. Moreover, Schiff asserts that in addition to George Papadopoulos, multiple other Trump-campaign officials were already under investigation by the date of the Page FISA application. The key takeaway is that while there is sufficient evidence in the public record to make educated guesses about the propriety of FBI actions, there is still nowhere near sufficient evidence to draw conclusions.
We still don’t know the important facts. Is the “salacious and unverified” memo now meaningfully verified? Have any of the four FISA judges indicated that they felt misled by the DOJ submissions? Was the FBI justified in seeking a FISA warrant rather than simply interviewing Carter Page once again?
Republicans have made serious claims of scandal and abuse. They have not yet adequately supported those claims. The Democratic rebuttal undermines important Republican assertions without decisively refuting the key allegations. The only thing we know for certain is that the show will go on, and we now suspect that we can’t look to the House to provide sober and competent assessments of the evidence. The Senate, however, is still doing its work. We can only hope that it will continue to resist the urge to dominate the news cycle and instead provide the carefully researched and comprehensive reports that Americans need to see.