Law & the Courts

The Memo Doesn’t Make Its Case

Rep. Devin Nunes speaks to reporters on Capitol Hill in March 2017. (Reuters photo: Aaron P. Bernstein)
The truth requires greater transparency.

It’s a fact of human nature that our experience colors our perception. In this instance, my experience dealing with classified information and my experience making and evaluating highly contested arguments tells me to hold the outrage in response to the Nunes memo. Hold the outrage and wait for more evidence. Why? Because the memo simply doesn’t provide sufficient evidence to support its quite explosive claims.

While I hardly claim to having the most extensive military experience, I have reviewed countless summaries of classified information. Every day, in Iraq, for example, multiple times a day.

And I hardly claim to have the most extensive legal experience, but I’ve drafted, analyzed, and reviewed countless briefs, memoranda, and other written work that presumes to make an argument based on evidence.

That experience teaches me that the memo simply doesn’t make its case. Indeed, it gets less persuasive — and the material omissions more glaring — with each successive read. It might disclose the existence of troubling FBI misconduct, but the fair-minded reader has no way of knowing whether it does.

Let’s back up for a moment and describe what a good memo would look like. There is nothing wrong with summarizing classified information. In fact, given the enormous volume of classified intelligence that crowds the federal system, good summaries are a necessity.

A good summary always supports assertions with evidence. A good summary provides context. A good summary even includes relevant information that contradicts its thesis so that the reader can evaluate the best counter-arguments.

For example, when I was in Iraq, we expended enormous energy attempting to determine whether any given local official or tribal leader was “bad.” Given the high stakes attached to the answer (literally life or death), no competent commander would be satisfied by a briefing that declared a sheik to be an enemy without copious citations of evidence. We’d compile communications intercepts, drone feeds, and informant testimony and cite and quote that evidence when communicating the conclusion.

Similarly, legal arguments typically depend on lawyers taking thousands (sometimes tens of thousands) of pages of depositions and documents, crafting a concise narrative, and communicating that narrative to a judge — with citations referring to the relevant evidence and quotations of it as well. If there is no citation or quotation, a judge will typically ask the lawyer, “Counselor, what record evidence supports that assertion?”

The point, to put it bluntly, is to remove — as much as possible — the element of trust. You should persuade me without asking me to take any single statement on faith.

Now, with this common-sense standard in mind, let’s turn to the memo, and see how it holds up.

One of the first and most vital assertions in the entire memo is the claim that “the ‘dossier’ compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application.” This statement is initially offered without proof. One has to read down to the next page to see any reference to evidence:

Furthermore, Deputy Director [Andrew] McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.

When I read this, I had two immediate thoughts. First, what did he actually say? And second, why the subtle change in language from the argument that the “dossier” was an “essential part” of the FISA application to the statement that the warrant wouldn’t have been sought without the dossier “information”? The “dossier” and the “information” are not the same thing.

Sure enough, this hazy language contributed to an immediate public fight over McCabe’s testimony. The New York Times reported Friday that the Democrats have a competing narrative:

People familiar with the Democratic memo said that Republicans had distorted what Mr. McCabe told the Intelligence Committee about the importance of the information from Mr. Steele. Mr. McCabe presented the material as part of a constellation of compelling evidence that raised serious suspicions about Mr. Page, the two people said. The evidence included contacts Mr. Page had in 2013 with a Russian intelligence operative.

An effective memo would do more to end the debate. How? By quoting the relevant portions of McCabe’s testimony. Better yet, it could quote the testimony and attach an appropriately redacted copy of the testimony as an appendix.

The characterization that the dossier was ‘essential’ is a judgment call based on evidence unavailable to the public.

Even the characterization that the dossier was “essential” is a judgment call based on evidence unavailable to the public. Even worse, it was a judgment call based in part on evidence unavailable even to the rest of the committee. As Devin Nunes told Brett Baier on Friday, the intelligence committee and the DOJ agreed that one member of the committee and “two investigators” would view the FISA application itself, in a secure reading room. Nunes chose Trey Gowdy, who “shared his notes and observations with the rest of the members.”

I respect Gowdy a great deal, and his perspective is valuable, but the memo should have plainly stated the agreement between the DOJ and the committee, along with the reasons for this agreement. (On Face the Nation yesterday, Gowdy said: “There are three Republicans that have seen every bit of information. Three of us: Bob Goodlatte, the chairman of the Judiciary; Johnny Ratcliffe, who’s a former terrorism prosecutor and U.S. attorney in Texas, and me.”)

Moreover, as noted above, good summaries don’t just support conclusions with evidence, they provide vital and necessary context. On this point, the memo fails utterly. For example, it fails to answer the following questions:

1) How did the FISA application actually describe Steele? The memo claims that the FBI did not disclose his role in the DNC or the Clinton campaign. Democrats are arguing that the political nature of his work was appropriately disclosed. Don’t we need the actual words used to properly evaluate whether the FBI materially misled the court?

2) In addition to the information from the Steele dossier, what other information did the FISA application include? The memo mentions that the FISA application also referred to a Yahoo News story that the court did not (then) know was based on information leaked by Steele. The memo also mentions the existence of the open counterintelligence investigation triggered by “information regarding fellow Trump campaign advisor George Papadopoulos.” Was anything else in the application?

3) To what extent did the multiple renewal applications depend on the information in the dossier? The memo notes that a FISA order must be renewed every 90 days, and each renewal must be supported by an “independent” probable-cause finding. A Trump appointee, Deputy Attorney General Rod Rosenstein, signed at least one of these FISA applications. He apparently believed that the request was supported by probable cause. Why?

4) What is the “information” regarding Papadopoulos that triggered the opening of the investigation in July 2016 — a full three months before the Page FISA application? The memo provides information obviously designed to impair the credibility of that investigation — by referring to FBI agent Peter Strzok’s well-known political leanings — but it provides no information about any facts supporting the opening of the probe, leaving the reader with the impression that it was opened solely because Strzok dislikes Trump.

I also wrote above that a good summary “even includes relevant information that contradicts its thesis.” The memo omits any such information, but a Democratic rebuttal exists.

The intelligence committee is expected to vote today on releasing the Democratic rebuttal. If it votes to release, then the request will once again go the White House. It’s imperative that the public see the Democratic response.

But even if the public reviews the Democratic rebuttal, the process is still flawed. The proper way to resolve explosive claims of political bias at the highest levels of government isn’t by dribbling out short memoranda but by issuing comprehensively researched and comprehensively supported majority and minority committee reports.

I could elaborate more on all these points, but after reading the memorandum, I’m struck by the fact that I literally cannot objectively discern whether there’s a scandal here. After all, it’s not by itself scandalous to review political opposition research — a politically motivated person is no more suspect than the terrorists and criminals who routinely provide information used to support even the most intrusive warrants. When I was in Iraq, we were constantly aware that our sources had their own axes to grind. They didn’t want to defeat their opponents in an election. They wanted them to die in a hail of gunfire.

Biased sources are an inherent part of intelligence-gathering. Good investigators take that bias into account.

Biased sources are an inherent part of intelligence-gathering. Good investigators take that bias into account when evaluating evidence and make material disclosures to the court to help the court make its probable-cause determination. After reading this memo, I simply don’t know whether that happened. I only know that the GOP claims that it didn’t.

It is entirely possible that a thorough review of the evidence will reveal that politically motivated senior leaders in the Department of Justice intentionally and willfully misled the court and knowingly used bad information to launch its surveillance of Carter Page. It’s also possible that senior leaders in the Department of Justice acted on good faith in response to information from a person who’d done valuable work in the past — information that supplemented other evidence raising suspicions about Page’s activity. Or the real story could lie somewhere in between.

But the bottom line is clear. The truth awaits greater transparency. The ball is in your court, Mr. President. Spare us the memos. Let’s see the evidence.


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