The Devin Nunes memo is, as was widely expected, a dud. It reveals nothing new, and answers none of the crucial questions raised by former law enforcement officials who have said there is nothing in this report that warrants its release. Indeed, in an opening missive that truly puts the “cover” in cover letter, White House counsel Don McGahn doesn’t even bother to respond to the arguments put forth by the Justice Department, which strongly urged that the memo not be released and cautioned that it would be “extraordinarily reckless” to do so without first giving the DOJ and FBI the opportunity to review it. The FBI similarly issued a stunning public warning that it had “grave concerns” about the accuracy of the memo. And yet, McGahn’s letter detailing the reasons for the declassification simply asserts that the president took this “input” into consideration and opted to release the unredacted memo nonetheless, alleging that named officials at the FBI and DOJ were biased against the Trump campaign and conspired to spy on it illegally.
The memo—which centers on the claim that the FBI omitted “material and relevant information” in obtaining a FISA warrant to surveil Trump crony Carter Page was obtained—proves Page was under FISA surveillance for about a year. As David French points out, it’s now clear that the counterintelligence investigation into the Trump campaign, which started in July 2016, “began before the FISA applications against Page.”
The memo also notes the warrant was re-upped three times by an authorizing judge who would have had to determine that each successive warrant provided the government with intelligence that substantiated the original allegation that the target was engaged in clandestine intelligence activity on behalf of a foreign power. It also faults the handlers of the Steele dossier for leaking to the media even as it levels no claims that the substance of the Steele dossier is false. It merely states that the dossier’s purveyors were biased, which is not disqualifying in seeking a warrant.
What is the point of dramatically releasing a document that will prove nothing to anyone, except the handful of people who can—by reading every fourth letter therein, and filtering the rest of it through the decoder ring they retrieved from the Comet Ping Pong basement laboratory—see in all this a nefarious conspiracy by largely Republican leadership to discredit Donald Trump in the months prior to the presidential election?
The memo is so silly, and technical, and logic-defying on its face that it’s easy to miss the fact that its genius lies in precisely that. Unless one ambles comfortably in the murky weeds of the Trump-Russia collusion investigation, this will all be just arcane and confusing enough to mean nothing. For the vast majority of Americans, it will be enough that the president has now declared that his own federal intelligence apparatus is corrupt and out to get him, and has conveniently produced an enemies list that conveniently sweeps in all the villains, from Christopher Steele to Dana Boente to Sally Yates to Andrew McCabe, who have declined to play on the president’s “team.” If the point here is to raise doubts about every investigatory agency capable of scrutinizing Trump, it has been achieved. As John McCain responded, when the memo was released, “If we continue to undermine our own rule of law, we are doing Putin’s job for him.”
This memo has the twin benefits of being both incomprehensible and boring. It serves as a glittering distraction from a host of other insanities unspooling around the administration’s consequential failures of governance and immolation of normalcy. But the other purpose of this memo, as has long been predicted, is that it serves as scaffolding for Donald Trump to fire deputy attorney general Rod Rosenstein without having to use the pretext that his defining fault is that he is a “Democrat from Baltimore.” As Matthew Miller put in Friday morning, Rosenstein’s “dismissal would put special counsel Robert S. Mueller III’s investigation in great peril.” By appointing a new acting deputy attorney general, Trump could stymie the Mueller investigation without having to take the political hit of shutting it down altogether. And for progressives poised to take to the streets if Mueller is fired, Rosenstein’s ouster might present as a lesser constitutional outrage that perhaps warrants a sad-face emoji rather than a march to the courthouse steps.
Lest you have any doubts about the long game here, the New York Times reports that when he was “[a]sked at the White House on Friday whether he would fire Mr. Rosenstein, the president cocked his head suggestively and said: ‘You figure that one out.’ ”
We have arrived at the moment in our re-living of Watergate, in which truly the only thing that can tilt the country from business-as-usual mode into holy-shit-constitutional-crisis mode is whether any one dot on this pointillist moving masterpiece of insanity can focus the mind and public attention enough to break through. If you are asking yourself whether this is the “break the glass” moment, that answer depends on predictable and coherent responses to outcomes. The dismissal of Mueller is one of them. The madcap weirdness of the Nunes memo is another, even if it’s dressed up like a turkey in a prom dress. If the real, real long game here is to create just enough chaos and distraction to lead citizens to wonder whether this last action represents the death of constitutional democracy, this latest act is a big win from House Republicans and Donald Trump. Robert Mueller is just fractionally less safe than he was on Thursday, the country is fractionally less confident in the independence and efficacy of the national intelligence apparatus, and everyone is slightly more baffled that something as stupid as the Nunes memo serves to achieve those ends. In a Zeno’s paradox of constitutional meltdown, another nothing just inched us closer to a really big something. But nobody knows if we will ever get there.
Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.