The controversial Devon Nunes memo was released. You can read it here.
1 The most important thing to keep in mind is that the information and conclusions in the memo are incomplete. Claims from the Right that it describes a Watergate level scandal are. at best, premature. However, the immediate and furious protests from the Left that it is a “nothingburger”—you know, like Obama IRS scandal that passed another stage today—is pretty damning. What the memo suggests is deeply disturbing, and possibly—too early to tell–frightening. For any American, and certainly for any journalist, to try to brush it off at this point as insignificant is proof of corruption by hyper-partisanship.
2. The resistance to releasing the memo from the FBI as a danger to “national security” appears deliberately misleading, in light of the memo itself. This, in turn, unavoidably makes , or should make, any objective reader suspicious. In retrospect, the warning sure looks like a false characterization as a desperate effort to keep an unethical episode covered up. The furious FBI attacks on the memo have to be regarded in this light: if the memo was fair and accurate, would the FBI react this way? Yes. If it was unfair and inaccurate, would it react the exact same way? Yes.
3. Rep. Trey Gowdy said today that the memo in no way undermines the Mueller investigation. I don’t see how he could say that, or why. Of course it does; the memo gives credence to the accusation that the entire Russian collusion theory was nurtured by anti-Trump figures in the Justice Department and the FBI before and after the election.
4. To reduce the memo to its simplest form: The infamous Steele dossier—the one James Comey described to Congress, under oath, as “salacious and unverified”— was included as l part of the initial and all three renewal FISA applications against Carter Page. Andrew McCabe, the Deputy Director of the Federal Bureau of Investigation who just resigned under fire, testified that no FISA warrant would have been sought from the FISA Court without the Steele dossier information. Yet The initial application and the renewal applications did not disclose the role of the Democratic National Committee and the Clinton campaign in generating the dossier by paying $160,000 to Christopher Steel to compile it, nor did the applications show that Steele was working for Fusion GPS and Glenn Simpson, who was paid by the law firm representing the DNC. In other words, part of the evidence presented to the court to justify surveillance of a member of the Trump campaign, and by extension the campaign itself, was created by someone working on behalf of the DNC and Clinton campaign.
5. The court, says the memo, in order to protect “the rights of Americans” needs to see “information potentially favorable to the target of the FISA application.” I don’t see how anyone can disagree with this, or the fact that the origins of evidence being presented to justify not only surveillance of a citizen but of a Presidential campaign arose from the opposing campaign had to be presented to the court. It wasn’t. That was illegal.
6. Thus the FBI obtained permission from the Foreign Intelligence Surveillance Court to surveil Trump aide Carter Page based in part on information from the Christopher Steele dossier, a document commissioned by the Clinton campaign and the Democratic Party. Whether the dossier was the primary basis the warrant, as the memo alleges, or only used ‘in part, the fact the FBI chose to use it in its application creates a prima facie case that it didn’t have enough other evidence to justify surveillance. I remember enough of my criminal law practice days to know that would be enough to invalidate a warrant and anything it uncovered. It makes the whole Mueller investigation potentially “the fruit of the poisonous tree.”
7. This places in proper perspective some of the anti-Trump spin, like this despicable tweet from Evan McMullen, the supposedly “ethical” Republican who attracted some protest votes for President in 2016:
“The inclusion of the dossier in FISA applications may represent an unprecedented collision of opposition research and national security, but remember: the cause of that was a presidential candidate’s likely collaboration with the very foreign adversary attacking our democracy.”
This is why we have the Fourth Amendment that prohibits unreasonable searches and seizures, and why the exclusionary rule and “the fruit of the poisonous tree” doctrines were created by a liberal Supreme Court—to prevent law enforcement from cutting Constitutional corners and violating civil rights when they decide that a crime was “likely.” McMullen, and all the defenders of what the FBI appears to have done here, are adopting the “ends justifies the means” philosophy that liberals once opposed.
8.Kimberly Strassel at the Wall Street Journal wrote,
“Somewhat lost in this narrative is what role if any the broader Obama administration might have played with regard to the dossier. What actions were taken by former CIA Director John Brennan, or former Director of National Intelligence James Clapper? Also don’t forget Bruce Ohr, the Justice Department official whose wife worked for Fusion GPS, and who himself met with Fusion cofounder Glenn Simpson. Or the Justice Department officials who approved court filings. If there was surveillance abuse, accountability shouldn’t stop with the FBI.”
Yup. I don’t see how any fair and objective citizen can avoid wanting answers to this question.
9. The reaction of the mainstream news media so far is almost as ominous as the matter itself, or would be, if it wasn’t so predictable by now. For example, on CNN today, Wolf Blitzer questioned GOP Congressman Chris Stewart about the memo as if the issue was entirely political maneuvering. This appears to be the media’s tactic: muddy the water, make the episode just more political back-biting and dueling narratives, and assume the public won’t have the attention span to figure it out. When Stewart asked why Blitzer was not discussing the substance of the memo, Blitzer answered that ” the contents of the memo, Congressman, the contents of the memo are being seen as political.” No, the news media and Democrats are trying their damnedest to make the public think it is political. They have not denied that under a Democratic administration, a piece of opposition research paid for by the campaign of the Democratic Presidential candidate counted upon to continue that administration’s policies, was used to acquire a warrant to spy on a member of the opposing party’s Presidential candidate’s campaign, without the court being informed regarding the material’s origins. The news media is taking a bad gamble if it allies itself with a partisan effort to spin this away from discovering the truth, which the public has the right to know.
10. Democrats would be responsible, ethical and wise if they showed appropriate concern about the sequence of events in this matter, rather than trying to deflect criticism of it. The conduct of the Obama Justice Department and the FBI should be a matter of bi-partisan interest. The argument against the memo and the issues it raises, that the public revelations demoralizes our intelligence community and undermines the public’s support and trust is the same invalid logic being used to condemn criticism of the biased news media. If these institutions are not trustworthy and acting against the interests they are pledged to protect, then the public must know. If the conduct of the intelligence community shows that it isn’t trustworthy, there is nothing wrong, and everything right, about exposing it. The Onion’s satirical headline makes the point beautifully: