by Jessica Schulberg · February 2, 2018
WASHINGTON ― In a move intended to undermine special counsel Robert Mueller’s investigation into Russian involvement in the 2016 election, President Donald Trump on Friday approved the declassification of a Republican-authored memo that alleges the Justice Department and FBI inappropriately spied on a member of the Trump campaign.
“The memorandum raises serious concerns about the integrity of decisions made at the highest levels of the Department of Justice and the FBI to use the Government’s most intrusive surveillance tools against American citizens,” White House press secretary Sarah Huckabee Sanders said in a statement on Friday.
Republicans have hyped the memo’s release for weeks, calling it “worse than Watergate,” while Democrats and the FBI have warned that the document omits key context and that making it public could damage national security and further undermine the public’s faith in the nation’s premier law enforcement organizations.
But the four-page document, which was drafted by Republican staffers in the office of House Intelligence Committee chairman and Trump transition team member Devin Nunes (R-Calif.), reveals little new information. Its authors focus on complaints of liberal bias among mostly Republican law enforcement officials, while omitting information that does not fit their narrative. The resulting document is boring and tendentious, and it’s hard to understand why Republicans were so excited to get it out and why the FBI and Democrats were so determined to keep it secret. It’s such a dud that it was probably more valuable to Republicans when it was still a secret document.
We read it so you don’t have to. (Although feel free if you want ― it’s included at the end of this post.)
Republicans’ basic charge
The memo centers on the charge that law enforcement officials misled a secretive court that approves surveillance warrants when they applied for permission to spy on former Trump campaign official Carter Page.
According to the memo, the FBI and DOJ applied for a warrant to spy on Page on Oct. 21, 2016. The application for the warrant, which lasts for 90 days, was approved and renewed three times. Each application has to be signed by a top FBI and DOJ official. Then-FBI Director James Comey, then-deputy director of the FBI Andrew McCabe, then-Deputy Attorney General Sally Yates, then-acting Deputy Attorney General Dana Boente, and Deputy Attorney General Rod Rosenstein each signed one or more of the applications.
The applications to spy on Page were flawed, according to the Republicans’ memo, because they did not do enough to disclose the biases of the sources who provided some of the information included in the requests. The Foreign Intelligence Surveillance Act applications relied, in part, on information gathered by former British intelligence officer Christopher Steele, who compiled allegations about ties between Trump and Russia into a dossier. The FISA applications did not mention that Steele was hired by a research firm that was hired by Democrats who were looking for opposition research on Trump, the authors of the memo wrote. (The memo does not mention that the same research firm, Fusion GPS, was first hired by Republican operatives who had the same goal during the GOP primary race.)
Steele himself was an unreliable source, the authors of the memo allege, because he spoke to reporters at Yahoo News and Mother Jones and because he didn’t want Trump to win the presidential election. In September 2016, Steele told senior DOJ official Bruce Ohr “he was desperate that Donald Trump not get elected,” according to FBI files cited in the memo.
That conversation should have been included in the FISA warrant, the memo’s authors argue. The FISA warrant application also should have disclosed that Ohr’s wife worked at Fusion GPS, the firm that hired Steele, according to the memo.
“While the FISA application relied on Steele’s past record of credible reporting on other unrelated matters, it ignored or concealed his anti-Trump financial and ideological motivations,” the memo says.
Steele’s alleged bias against Trump is legally irrelevant
The memo elides the fact that the FBI was applying for a warrant to surveil Page, not Trump. It provides no evidence that Steele was biased against Page. But even if it had, that wouldn’t necessarily matter.
Although the memo’s suggestions that Steele met with journalists and didn’t like Trump are sure to rile Trump and his supporters, they don’t provide much evidence of legal wrongdoing. Law enforcement officers — which is what FBI agents are — rely on biased informants to obtain warrants every day.
“Informants usually have ulterior motives, and judges don’t need to be told that,” Orin Kerr, a law professor at the University of Southern California, wrote earlier this week.
The FBI probably could have gotten a warrant to spy on Page without Steele’s dossier.
The memo’s argument relies heavily on the idea that Steele was integral to the FBI and DOJ’s efforts to get approval to spy on Page. McCabe, the deputy director of the FBI during the warrant applications, “testified before the [House Intelligence] Committee in December 2017 that no surveillance warrant would have been sought from the [Foreign Intelligence Surveillance Court] without the Steele dossier information,” the memo claims, referring to McCabe’s closed-door testimony.
Republicans have “mischaracterized” that testimony, a senior Democratic official on the intelligence committee told HuffPost. But because the testimony was private, there’s no way — at least for now — to know who’s telling the truth. And even if McCabe said what Republicans claim he did, it’s impossible, without the underlying warrant application, to determine whether he was right — that is, to know for sure how much law enforcement relied on the Steele dossier to obtain the warrant to spy on Page.
The FBI had suspected that Page was a target of Russian intelligence for years before he became a Trump campaign adviser. In 2013, Page met with a Russian spy who was later charged by the Justice Department for acting as an unregistered agent of a foreign government. That spy had tried to recruit Page, BuzzFeed reported last year. Law enforcement officials probably didn’t need the Steele dossier to get approval from a FISA court — which have notoriously high approval rates — to spy on him.
The final paragraph of the memo offers as good an example as any of the document’s unreliability. It focuses on text messages exchanged by two FBI employees who were having an affair: agent Peter Strzok and lawyer Lisa Page. The memo says their texts illustrate “a clear bias against Trump and in favor of [Hillary] Clinton, whom Strzok had also investigated.” However, there’s nothing wrong with FBI officials holding political opinions, or privately discussing those political opinions. And while it’s clear from their texts that neither Strzok nor Page had a favorable opinion of Trump, the Nunes memo fails to mention that the two FBI employees also disparaged Democratic politicians and figures.
The memo’s omissions get even more damning when it raises the idea that Page and Strzok may have been talking to reporters. “The Strzok/Lisa Page texts also reflect extensive discussions about the investigation, orchestrating leaks to the media, and include a meeting with Deputy Director McCabe to discuss an ‘insurance’ policy against President Trump’s election,” the memo claims.
That’s an inaccurate statement full of mischaracterizations and key omissions. First of all, it leaves readers with the impression that biased FBI employees were “orchestrating leaks to the media” to hurt Trump. As HuffPost has reported, that’s just not what the texts show. Page — whose chief loyalty seems to be to the bureau — actually spoke to a reporter for a story about the Clinton Foundation investigation that reflected poorly on Democratic political appointees in the Justice Department and certainly wasn’t good for the Clinton campaign.
And although Strzok’s reference to “insurance” in case Trump was elected comes across as sinister in the GOP-authored memo, the reality is much more mundane. Strzok was actually suggesting that the bureau couldn’t slow-walk its investigation into ties between Russia and the Trump campaign simply because FBI officials — like many Americans — believed “there’s no way [Trump] gets elected.” Delaying the investigation would create a “risk” in that Trump could take office and the FBI could be caught flat-footed, unaware of the full extent of the links between Russia and some Trump associates, who meanwhile might be seeking crucial jobs in the administration that could pose a national security risk.
The FBI and Democrats are fighting back
The FBI issued a rare public statement on Wednesday, expressing “grave concerns” that the Nunes memo had “material omissions of fact that fundamentally impact the memo’s accuracy.” FBI Director Christopher Wray personally appealed to the White House keep the memo private. Asked on Friday whether the FBI’s earlier statement still stood, a spokesman replied, “It does.”
The bureau’s rank and file are perplexed by attacks coming from the GOP, a party that bills itself as the supporters of “law and order,” an FBI source told HuffPost earlier this week.
Thomas O’Connor, an FBI agent, issued a statement Friday in his capacity as president of the FBI Agents Association, saying that Americans “continue to be well-served by the world’s preeminent law enforcement agency” and that FBI special agents “have not, and will not, allow partisan politics to distract us from our solemn commitment to our mission.”
Attorney General Jeff Sessions’ statement on Friday seemed written to appease Republicans on Capitol Hill. He called the issue “of great importance for the country,” and said that while he had “great confidence in the men and women of this Department… no Department is perfect.”
Sessions said he was “determined that we will fully and fairly ascertain the truth” about what happened. “We work for the American people and are accountable to them and those they have elected,” he wrote. “We will meet that responsibility.”
Trump ran as a law-and-order candidate, and the Republican Party has closely aligned itself with law enforcement, so the GOP’s broadside attack on the nation’s premier law enforcement agency in recent days has been shocking to many.
And after all that, the memo didn’t live up to the hype. “That’s it?” wrote Comey, the former FBI director, on Friday, calling the memo “dishonest and misleading” and saying it “destroyed trust with Intelligence Community, damaged relationship with FISA court, and inexcusably exposed classified investigation of an American citizen.”
Rep. Adam Schiff (Calif.), the ranking Democrat on the House Intelligence Committee, slammed the memo on Friday as an inaccurate and politically motivated attempt to make the Trump-Russia investigation go away.
“The investigation did not begin with, or arise from Christopher Steele or the dossier,” Schiff wrote. “The investigation would persist on the basis of wholly independent evidence had Christopher Steele never entered the picture.”
The Republicans’ memo cherry-picks and mischaracterizes classified intelligence that Nunes himself has not reviewed, continued Schiff, who has read the underlying intelligence.
House Speaker Paul Ryan (R-Wis.) insisted this week that the issues raised in the memo are separate from the Mueller probe, and encouraged members of his party not to overhype the memo and its contents. They didn’t listen. Rep. Paul Gosar (R-Ariz.) issued a statement Friday calling Comey, McCabe, Yates and Rosenstein “traitors to our nation” and calling for them to be prosecuted.
My full statement on the declassified memo: pic.twitter.com/eRo6ugpWQ9
— Rep. Paul Gosar, DDS (@RepGosar) February 2, 2018
Republicans on the intelligence panel voted last month to allow all members of the House to read the memo, and later voted to send it to Trump to approve for public release. At the same time, the committee’s Republicans blocked Democrats from simultaneously releasing a rebuttal memo.
The Democrats’ memo provides information about how the FBI’s investigation began, what additional information the bureau had about Russian election interference, and what the FBI knew about Page, wrote Schiff, who is pushing for a committee vote to make the minority memo public.
Here’s what real transparency would look like
Nunes and the White House have portrayed the memo gambit as a bid at transparency.
“The Committee has discovered serious violations of the public trust, and the American people have a right to know when officials in crucial institutions are abusing their authority for political purposes,” Nunes said in a statement on Friday. He added that he hopes his memo leads to reforms so the American people can have faith in their government.
If Nunes’ real goal is to bring more transparency to government, he has a curious way of showing it. Just weeks ago, he voted to extend and expand the National Security Agency’s warrantless surveillance program, rejecting a push by some lawmakers to restrict the agency’s ability to spy on Americans. He also blocked the Democrats from releasing their own memo on the FBI and DOJ’s surveillance of Page. The White House said on Friday that it is ready to work with Congress on releasing the Democratic document, “consistent with applicable standards, including the need to protect intelligence sources and methods.”
Without the warrant application underlying the Republican memo, it remains impossible to fully assess the memo’s veracity. There’s an easy solution to that problem: Release the original application. Michael Morell, a former deputy director of the CIA, proposed as much on Friday. “Release the original affidavit to the FISA court, along with any reauthorization(s), redacted for classification and privacy,” he tweeted. “This would allow the public to see how much material, in addition to the ‘dossier,’ was used with the court.”
Nunes didn’t respond to an email asking if he was open to the idea.