Since Donald Trump became the GOP’s leader, there seems to be no limits to how far the Republicans will go to protect and defend him. Even if it means discrediting longstanding institutions trying to do their job. On Monday, January 29, 2018, Republicans on the House Intelligence Committee to release a memo painting the FBI and the Justice Department as being biased against Trump so much that people in both agencies have conjured up an investigation into his ties with Russia to take him down. Not surprisingly California Rep. Devin Nunes wrote the memo that reportedly frames Robert Mueller’s investigation as an FBI to hurt Trump as well as uses both Hillary Clinton and the infamous Steele dossier in establishing connections. Trump has until February 2, to declassify the report. But in the meantime, the hashtag #Release the Memo has started spreading on Twitter.
We should all know Devin Nunes is the last guy you’d want to lead any investigation into Trump’s Russian connections. And that any memo coming from him stating that the Trump-Russia investigation is a mere conspiracy by law enforcement to hurt Trump is a baseless narrative. He’s a longtime Trump ally and was on his transition team. He’s defended Michael Flynn when he was credibly accused of lying about his Russian contacts last February. As head of the House committee investigating the Trump-Russia connections, Nunes “seemed to go out his way to defend Trump.” The most noteworthy example was after Trump tweeted in March that President Barack Obama had “wiretapped” Trump Tower during the 2016 presidential campaign. The heads of both the FBI and the NSA categorically denied such wiretapping took place. But Nunes quickly stood by Trump and held a press conference to proclaim that “the intelligence community incidentally collected information about US citizens involved in the Trump transition.” What this means is that some Trump personnel had been in contact with foreigners legally under surveillance, and their conversations were intercepted and collected as part of it. Unsurprisingly, this didn’t vindicate Trump’s claim of the Obama administration’s spying on his campaign headquarters. But the timing of Nunes’s press conference and the confusing way he presented made it seem he was trying to cover Trump’s ass. Then it turned out that the California congressman got his information from the Trump White House itself. National Security Council senior intelligence director Ezra Cohen-Watnick uncovered the info. White House attorney Michael Ellis who worked for Nunes prior to the Trump administration, personally delivered the information to him.
In sum, Devin Nunes released information in a way to make it seem like Trump’s claims of being persecuted by law enforcement were true and did so after secretly getting the details from the Trump White House. However, the situation became such an embarrassment that Nunes was forced to recuse himself from the intelligence committee’s investigation into Russia for 8 months during a House ethics investigation into his conduct. Apparently, these measures didn’t stick. Because when news broke out in mid-January that Nunes had been working on a secret memo on FBI surveillance of the Trump campaign, intelligence experts initially sensed a repeat of the wiretapping debacle where he misrepresented intelligence to support Trump’s political position. And in a way, it is.
But many of Nunes’s colleagues in the House saw the memo as damning proof of anti-Trump bias in the FBI. So they started the publicity campaign backed by conservative media to #ReleasetheMemo. This culminated in Monday intelligence committee vote to release it along party lines. That the Republicans would even speculate the FBI and the Justice Department being so against Donald Trump they’d set up an investigation into his Russian ties to specifically hurt him is ridiculous conspiracy nonsense. There are a lot of moving parts to what Nunes reports claiming versus what we already know.
1. A FISA court judge reviewed evidence and approved a warrant to wiretap a Trump associate.– In fall 2016, FBI investigators applied for a warrant with the Foreign Intelligence Surveillance Court (FISA) to wiretap former Trump adviser Carter Page who has business ties to Russia and open sympathies with the Kremlin’s foreign policy. They presented evidence that he may be acting as a Russian agent and the judge approved the warrant.
2. The Core of the Nunes Argument.– Those familiar with the Nunes memo, Devin Nunes believes that the case was primarily built on the Steele dossier which was funded partially funded on behalf of the Hillary Clinton campaign and the Democratic National Committee. He then reportedly said that the investigators misled the judge by not saying they were relying on the Steele dossier. Therefore, the surveillance on Page was improperly authorized and potentially politically motivated.
In reality, the FBI got its evidence from several sources and FISA warrants generally require corroboration. Carter Page was known to have business ties to Russia and open sympathies with the Kremlin’s foreign policy. While advising the Trump campaign in July 2016, Page flew to Moscow and met with Russian officials, which raises suspicions among intelligence officials. Besides, Senator Diane Feinstein’s release of the Simpson testimony reveals that the FBI investigation into Trump’s Russia ties most likely began when a drunk George Papadopoulos bragged to an Australian diplomat that Russia had dirt on Hillary Clinton. Not to mention, the DNC email hacking right before the Democratic National Convention. Thus, the FBI had taken the Trump-Russian collusion question seriously for reasons that had nothing to do with the Steele dossier.
Furthermore, while Robert Mueller’s investigation hasn’t yet proven like the vast conspiracy the Steele dossier alleges, it certainly revealed real evidence of wrongdoing. George Papadopoulos has pleaded guilty. Charges have been filed against former Trump campaign chair Paul Manafort and former National Security Advisor Michael Flynn. We’ve also learned that Donald Trump Jr. and Jared Kushner were at least eager to possibly collaborate with the Russian government into revealing Clinton’s dirty laundry, instead of reporting the existence of an active Russian intelligence effort aimed at the United States. Then there’s the fact the Steele dossier’s less explosive allegations have so far proven to be true. The FBI might’ve relied on the former British agent’s findings since he’s a respected investigator. But if it’s true, it doesn’t necessarily discredit the application.
In addition, the memo’s claims are impossible to without seeing the underlying intelligence it was based on. Nunes could’ve highlighted the FBI’s Steele citation without mentioning other, more concrete sources the agency listed. As University of Texas professor Steve Vladeck said, “The memo won’t actually answer the underlying question, which is whether there was sufficient independent evidence to support the underlying FISA application. Only the application materials can conclusively shed a light on that.”
Then there’s the idea that FBI agents would act in such a way and a FISA judge would let them strikes plenty of legal experts as absurd. As civil libertarians have warned about for a long time, the FISA process can and has been abused. But this particular method of abuse requires an implausibly vast conspiracy. As former FBI agent and current Yale Law professor Asha Rangappa writes:
“The Nunes Memo reportedly alleges that at least a dozen FBI agents and DOJ prosecutors fabricated evidence, engaged in a criminal conspiracy to commit perjury, lucked out on being randomly assigned Judge Low Blood Sugar who looked the other way, and — coincidentally — ended up obtaining evidence that justified extending the initial FISA surveillance. …
“If Nunes has in fact singlehandedly uncovered this vast criminal enterprise, it’s hard to know what’s more astonishing: That a government bureaucracy managed to pull it off — or that Nunes has exposed it all in a scant four-page memo.”
3. Deputy Attorney General Rod Rosenstein is dragged into this as well.– The Nunes memo reportedly says that Rosenstein knew and approved the application for the warrant knowing they were relying on the DNC-funded Steele dossier. Thus, it would imply that the deputy attorney general has an anti-Trump bias.
In late spring 2017, the FBI petitioned to renew its surveillance warrant on Carter Page. The New York Times claims that Rosenstein personally signed off on the renewal application. As the Times writes, the reason this matters is that, “Republicans could potentially use Mr. Rosenstein’s decision to approve the renewal to suggest that he failed to properly vet a highly sensitive application for a warrant to spy on Mr. Page.” But it’s deeper than that.
The memo apparently implies that the Russian investigation is a corrupt partisan hatchet job. Bring Rosenstein into it, it also indicts the guy currently in charge of it, suggesting he’s incompetent at best and corrupt at worst. Theoretically, this can lead Trump to dismiss Rosenstein. Because he can’t fire Mueller without the deputy attorney general’s say-so. Rosenstein had already said in December that there’s no “good cause” to fire him. If he were to fire the deputy attorney general, he probably could get to Mueller. And we all know Trump wanted to fire Mueller as early as June.
In reality, we forget that the firm behind the dossier was originally hired by the conservative Washington Free Beacon in 2015. Hillary Clinton and the DNC didn’t enlist the firm until Trump’s Republican nomination became more imminent. Besides, by the time Christopher Steele turned his dossier to the FBI, the bureau had already been getting reports that there was something shady going on in the Trump campaign. Not to mention, if the Steele dossier was a purely political document, then Steele wouldn’t have turned it in to the FBI out of his British allegiance.
4. The conspiracy comes together.– So why is the Rosenstein angle important? Because if he, as a proxy for the Justice Department, can be seen as anti-Trump, then it means his hiring special counsel Robert Mueller had ulterior anti-Trump motives. Thus, meaning that the entire Trump-Russia investigation is happening because some “deep state” officials want to undermine Trump and take him down. So it’s not being conducted on its own merits.
However, if you think that Nunes’s theory relies on lots of incredible assumptions (some of which having already been disproven), you’re not alone. Assuming the New York Times’s description of the memo is accurate, there are good reasons to be skeptical. Even beyond Nunes’s personal history of misusing intelligence.
Apparently, Republicans in the House have pushed to release the Nunes memo because they believe it outlines surveillance abuses Americans need to know about. As Florida Rep. Matt Gaetz said on the House floor, “Let’s have a great debate about its consequences and the opportunity it presents to make things better, so these things never happen again.” However, FISA system experts and even civil libertarians critical of how law enforcement uses it, are skeptical. They clarify that Republicans aren’t proposing any changes to how FISA works or even suggesting that the system in general needs to reform to stop any future abuses. Cato Institute’s Julian Sanchez noted, “There’s a conspicuous lack of interest in drawing any policy conclusions from what they purportedly consider a major institutional scandal.”
Instead, the motivation seems purely political as many of the #ReleasetheMemo supporters have also called for Donald Trump to fire Mueller. They may apparently genuinely believe that the Russia investigation is a partisan witch hunt targeting Trump. Or more likely think there is there’s some political advantage gained from championing an anti-FBI crusade near and dear to Trump’s and Fox News’s heart. Either way, experts claim the motivation behind the memo’s release is very clear as a way to wage war on the Russia investigation specifically and the FBI in general. Former Defense Department special counsel Ryan Goodman told Vox, “The release of the memo, and the fabrication of a set of ideas around the memo, empowers Trump to go after the FBI. The ultimate goal is undermining the Mueller investigation. There doesn’t seem to be another reason for the president to be so obsessed with Rod Rosenstein and to be gunning for him.”
Naturally the FBI and the Democrats don’t like the Nunes memo because they think it’s full of lies. The Democrats on the House intelligence committee compiled a 10-page memo of their own. It reportedly asserts two things. First, that the FBI didn’t abuse its FISA power when requesting the Page warrant. Second, that the Nunes memo is simply an effort to help the White House discredit the Mueller probe. On January 29, Rep. Mike Quigley asked Nunes if his staffers worked on this memo with the White House. The California Republican originally answered by saying, “as far as I know,” no one collaborated. But ultimately, he refused to reply, possibly suggesting collusion. Not to mention, the House Intelligence Committee voted not to make the Democratic memo public. On January 31, the FBI released a statement strongly signaling the agency’s worry on the memo’s accuracy:
“The FBI takes seriously its obligations to the FISA Court and its compliance with procedures overseen by career professionals in the Department of Justice and the FBI. We are committed to working with the appropriate oversight entities to ensure the continuing integrity of the FISA process.
“With regard to the House Intelligence Committee’s memorandum, the FBI was provided a limited opportunity to review this memo the day before the committee voted to release it. As expressed during our initial review, we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”
While it’s unclear whether Donald Trump will declassify the Nunes memo, he’s signaling he might. Though he has yet to see the memo, after his State of the Union address, he reportedly told Rep. Jeff Duncan that he’d “100 percent” make the memo public in the coming days. The next day, White House chief of staff John Kelly told Fox News that the memo, “will be released here pretty quick, I think, and the whole world can see it.” Of course, Trump’s reasons for releasing the memo are obvious. Since he’s publicly decried the Trump-Russia probe as a “witch hunt” perpetrated by rouge partisans within the FBI several times. As Cato’s Julian Sanchez told Vox, “Trump is shockingly overt about believing that the problem here is that the FBI is staffed by loyalists to the wrong person. He does, in fact, seem to think that the job of the DOJ, and the FBI, and the rest of the intelligence community is to protect the president and follow his orders — including going after his political enemies based on stuff he saw on Fox News, if that’s what he wants to do.” So Lord Cheetohead could just release the memo as an attempt to prove his suspicions correct. Yet, it can also backfire since it’s possible Nunes’s evidence presented in the memo is thin. Worse, the release fallout could lead to more leaks proving Nunes’s account wrong. That would not only hurt the conservative argument against the Russia probe but prove a self-inflicted wound.
But once the memo’s released, Devin Nunes needs to have a very good case to prove his argument, which he doesn’t. People will want to know his evidence to prove that the Mueller investigation into Trump’s 2016 campaign was entirely based on the controversial Steele dossier. The FBI will have to back up its claims that it obtained the Page warrant based on information from a variety of sources showing a probable cause he may have acted as Russian government agent. This will lead to calls to release the FISA documents, which the FBI might find easy to do if the Trump-picked FBI Director Christopher Wray would approve it. Many conservatives are calling for the memo’s release and the FISA documents’ disclosure to show the information included in the warrant application presented to the federal court judge who approved Page’s surveillance. If it’s what conservatives claim, they can proclaim they’ve uncovered a conspiracy. But if the FBI documents show that the FBI told the truth which they most likely will, the Nunes-led narrative will fall apart.
However, we must understand that the Nunes memo is part of a much larger conservative effort to discredit the Mueller investigation. Once it’s released, it’ll serve as another data point in the growing anti-Mueller movement. But it can also be used as pretext for removing those responsible for the Mueller investigation. According to the Washington Post, Donald Trump told his close advisers that the memo could give the excuse he needs to either fire Rosenstein or force him to resign. He then replace the deputy attorney general with someone friendlier to his administration and more willing to constrain Mueller, which can hurt the probe in the long run. According to Rangappa, the new deputy attorney general can effectively cripple the Mueller investigation by rejecting the special counsel’s requests to investigate more people, obtain new evidence, or pursue charges against more people. Or the new appointee could just fire Mueller. Should the Nunes memo’s allegations prove true in the highly unlikely scenario, then that could potentially delegitimize the Mueller probe and lead to the special counsel’s dismissal. Nevertheless, this is more of a political game than a legal one. So the memo’s release will just take this fight into an all-out war between Republicans and the Trump administration who want Rosenstein fired and the Russia probe shut down, and the Democrats and FBI who don’t.
There are two broad ways this political war between the Snowflake King and the FBI can go. In the first, the FBI’s brought to a heel. Donald Trump fires Rod Rosenstein and other senior FBI executives and replaces them with more sycophantic appointees. The Mueller investigation is quashed while the bureau serves more like an arm to the Trump administration than a quasi-independent agency. Of course, the implications of this scenario on American democracy are simply terrifying to think about. For who knows what Trump would use the FBI for than to go after his critics and enemies. As Sanchez told Vox, “I shudder to think what the  election looks like when you’ve got a guy who says, ‘I saw Fox & Friends this morning and my opponent is a crook’ … except now you’ve got an FBI and a DOJ that say, ‘Yes, sir.’” Let’s just say, such scenario would be a nightmare if you value American democratic values, particularly free speech. In the second scenario, the memo leads to a lot of FBI-Republican skirmishing but no actual showdown. Donald Trump doesn’t either fire Rosenstein or is somehow stopped from doing so, the Mueller investigation continues unhampered, and the FBI remains untainted by political influence. There are many factors that could make the difference between the two outcomes. Two of the key ones are congressional Republicans, particularly those in the Senate along with Trump’s own staff.
Senate Republicans have been notably quieter and more restrained in attacking the FBI than their peers in the House. They also have to confirm Donald Trump’s nominees to the Justice Department. They can make it clear that if he fires Mueller or Rosenstein and tries to appoint a crony in their place, they won’t confirm his picks. What Republican senators say and do after the memo’s release could indicate to Trump whether he has enough backing to take on the FBI.
But we must not forget that members of Donald Trump’s own White House have also blocked moves to interfere with the Mueller probe. The New York Times recently reported that in Trump ordered White House Counsel Don McGahn to fire Mueller. McGahn threatened to resign than do that and Trump backed off. He was, according to the Times, concerned that firing the special counsel would incite more questions about whether the White House was trying to obstruct the Russia investigation.” If McGahn and other voices of relative restraint in the White House succeed in backing Trump away from the memo fever that will soon play out all over conservative news, or even refuse to carry out his orders, then you might see the same thing again after the memo’s released.
Nonetheless, in regards to the current antagonism between the White House and FBI, there is no good historical precedent. Never has a US president attacked so publicly attacked the FBI. Nor have congressional committees with oversight responsibilities have also never attacked the agency this way. There have been tensions between the White House and the FBI over the years, but not so publicly. Russian President Vladimir Putin rightly thought there was a chance of an ally in the White House. And he sanctioned interference in the presidential election to further that goal. Donald Trump wants to be friends with Russia but suffers from a Putin-like hubris and has been hoist by his own petard in that he can’t be friends with friends with Russia without appearing part of Putin’s conspiracy. Still, the memo scandal is a move on the White House’s behalf to tarnish the FBI’s reputation and call the Mueller investigation’s motives in doubt. Even though the man who hired Mueller was one of Trump’s own appointees.
Framing investigative developments as partisan ploys is nothing new. But here, the charges aren’t simply that Mueller is an overzealous prosecutor. It’s that the FBI tried to help throw an entire election. And the House memo seems like it’ll suggest that the FBI was implicated in an attempted coup. The memo release’s long-term significance is that it may confirm some people’s suspicions of how few in government can be trusted to act independently and honestly. Trump and the GOP’s attack on the FBI puts its independence under siege. Bringing an independent judiciary and investigative branch under the executive’s domination is one of the first moves regimes who don’t respect the rule of law. Pinochet’s Chile. Nazi Germany. The Soviet Union. Putin’s Russia. And looking at Trump’s history, the lack of respect for the rule of law is very clear. Besides the military, the judiciary and law enforcement branches are the most powerful in a state. Control and politicization of that wing allows the ruler to criminalize his opponents, and label them as enemies of the state when the those so-called enemies are really defenders of a more viable, democratic nation. This is why the Nunes memo is a threat and I don’t think Trump is above wanting to use the FBI to go after his opponents, which scares the hell out of me. Now the White House seems pressuring the FBI, but it’s too soon to tell whether that leads to the FBI significantly losing its independence. Nevertheless, if Nixon’s debacle with Watergate has taught us, if a president has secrets he wants to keep, he shouldn’t mess with the FBI.