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National Security & Defense

Quick Thoughts on The Nunes Memo

Here’s my quick takes on the “Nunes Memo” that was just released:

1. Like basically everything that has come out of Congressional investigators the past 229 years, this is a partisan document – written by partisans, in the context of partisan controversies, and contested to the extent possible by by the opposing partisans for partisan reasons. (Notably, the Democratic responses so far have suggested that the memo misleadingly omits important facts, but there has – thus far, and this may change – not been a similar effort to claim that the factual assertions in the memo are themselves inaccurate). Readers should view it with appropriate skepticism. That said, the media drumbeat of downplaying the memo in advance on the basis of it being a partisan product is just wildly hypocritical, as reporting on the work of Democratic investigators during the Bush (both), Reagan, and Nixon presidencies was never prefaced with things like this:

 

If Democrats take over one or both Houses of Congress in 2019, expect the media to go back to headlines that focus on the merits of their findings, not how partisan the people presenting them are. Indeed, the entire point of the Nunes Memo is that information derived from a partisan source (the Steele dossier, an opposition research product financed by the DNC and the Clinton campaign) should have been met with more skepticism and labeled as such.

2. The memo notes that a FISA warrant was sought on October 21, 2016 (and renewed three times since then, including by one of Trump’s own appointees) for surveillance of Carter Page. For all the controversy over surveillance of Page (Republicans outraged that a member of the Trump campaign was surveilled by Obama’s DOJ, Democrats upset that the voters weren’t told that Trump’s campaign was, like Hillary, under FBI investigation), it should be recalled that Page was basically a hanger-on and October 21 was just over three weeks before the election. Without more, that means that none of this really amounts to a major investigation of anyone deeply involved in the Trump campaign for any significant portion of the campaign.

3. The key finding of the Nunes Memo is that the Steele dossier “formed an essential part of the Carter Page FISA application,” without informing the FISA court that it originated from a partisan source, and that the “corroboration” for the Steele dossier was a Michael Isikoff article that was itself sourced from the dossier. As law professor Orin Kerr explains, that’s not necessarily a legal defect in the application. Nor, obviously, does it show that Carter Page should not have been a legitimate target for FISA surveillance. But it does suggest that the process of launching the Page investigation by the Obama DOJ and FBI got warped by presidential politics in the heat of campaign season and wasn’t adequately disclosed to the courts, two things that should not happen.

4. The Nunes Memo also cites Congressional testimony from FBI Deputy Director Andrew McCabe to the effect that “no surveillance warrant would have been sought from the FISC without the Steele dossier information,” which doesn’t necessarily mean there was no corroboration of that information – but also cites the head of the FBI’s counterintelligence division describing the corroboration as in its “infancy” and a memo after Steele was fired as a source (for leaking to David Corn of Mother Jones) that assessed the dossier as – in the Nunes Memo’s words – “only minimally corroborated.” In other words, the Nunes Memo appears to reflect the FBI’s own view that the Steele dossier was in fact essential to the obtaining of the original FISA warrant. Notably, however, the Nunes Memo does not address the basis for subsequent extensions of the warrant, which implies that even if the original warrant was ‘fruit of the poisonous tree,’ the surveillance itself and/or independent sources of information may have given investigators more to work with.

5. Did DOJ and/or FBI know that they were relying on partisan opposition research? Certainly the fact that this was a detailed report gathered to collect dirt on a political candidate during an election cannot have been lost on them. The Nunes Memo does not state explicitly who knew what at FBI or DOJ about Steele’s work being funded by the Democrats, but concludes that “the political origins of the Steele dossier were then known to senior DOJ and FBI officials.” It focuses on then-Associate Deputy Attorney General Bruce Ohr, who documented Steele’s statement in September 2016 to the effect that he “was desperate that Donald Trump not get elected and was passionate about him not being president,” and highlights that ever-present feature of incestuous DC operations: while Ohr was holding down a nominally nonpartisan job, his “wife was employed by Fusion GPS to assist in the cultivation of opposition research on Trump,” another fact not told to the FISA court. Left unsaid here is how exactly Steele came to the FBI and whether Ohr’s wife played a role in that, though we know that Steele was trading on credibility built from having been a successful FBI source in the past.

6. The final paragraph of the Nunes Memo, which seems tacked on to score partisan points and is only barely connected to anything else, discusses the investigation of George Papadopoulos and the role of FBI agent Pete Strzok and his anti-Trump texts with his mistress, FBI Attorney Lisa Page. The Nunes Memo asserts, without explaining how its authors can know this, that “there is no evidence of any cooperation or conspiracy between Page and Papadopoulos” – it would probably have been more accurate to say that the FBI cited no such evidence in support of referencing Papadopoulos in the Page FISA application.

7. If you were expecting a bombshell that will discredit either the FBI’s Russia and obstruction investigations or its decision not to recommend the prosecution of Hillary Clinton, then the Nunes Memo is a dud. It focuses on a very narrow subject, the obtaining of a single FISA warrant (subsequently renewed by Trump’s own Administration) on a fringe figure (Carter Page) who by all appearances deserved to be investigated, and surveillance of whom probably didn’t uncover very much about the Trump campaign that you wouldn’t have known from watching TV. On the other hand, within those narrow confines, it does make a persuasive case – pending any detailed rebuttal by its partisan Democratic critics – that flimsily-corroborated Democratic Party campaign opposition research succeeded in influencing law enforcement to spy on a U.S. citizen involved in the political process at the height of a presidential campaign. That may not be an enormous scandal in size, but it is, if true, a scandal.

Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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