David French: Nunes Memo ‘Clears the Decks for the Special Counsel’

National Review legal analyst David French argues that the Nunes memo actually undermines the central claim its proponents were seeking to bolster.

At the end of last year, the New York Times published a furiously contested scoop claiming that the investigation actually began not because of the Steele dossier but rather because George Papadopoulos had popped up on the FBI’s radar.

[…]

Well, if the newly released Nunes memo is correct, House Republicans and the Trump administration just confirmed the Times’scoop. In the process, they blew up their core argument against the investigation. The investigation isn’t the fruit of the poisonous dossier (though the dossier did play a role); it existed before the dossier. Let’s look at the timeline. First, the memo notes that on October 21, 2016, the “DOJ and FBI sought and received a FISA probable cause order . . . authorizing electronic surveillance on Carter Page from the FISC.” The dossier allegedly “formed an essential part of the Carter Page FISA application.” The memo then claims that the FISA warrant was renewed three times.

The memo alleges in some detail that senior FBI officials knew of the “political origins of the Steele dossier” yet failed to disclose them and other troubling facts to the FISC — including evidence of alleged conflicts of interest and claims of Steele’s bias. (The memo says that he was “desperate that Donald Trump not get elected,” which would be entirely understandable if he believed the claims in the dossier.)

Its final paragraph, however, says this:

The Page FISA application also mentions information regarding fellow Trump campaign advisor George Papadopoulos, but there is no evidence of any cooperation or conspiracy between Page and Papadopoulos. The Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok. Strzok was reassigned by the Special Counsel’s Office to FBI Human Resources for improper text messages with his mistress, FBI Attorney Lisa Page (no known relation to Carter Page), where they both demonstrated a clear bias against Trump and in favor of Clinton, whom Strzok had also investigated. 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. [Emphasis added.]

In other words, the counterintelligence investigation opened when the Times said it opened based on the person the Times identified. While the memo then does a nice job detailing Strzok’s misconduct, it also indulges one of those “material omissions” the FBI warned about earlier this week: the evidence supporting the opening of the Papadopoulos investigation. Strzok may have his biases, but if the evidence upon which the investigation was opened is sound, then the investigation is appropriate.

From the beginning of the Russia investigation, it has always been the case that two things could be true at once: FBI agents could have engaged in misconduct (including misconduct motivated by political bias) and the Russia investigation could be legitimate, necessary, and based on information obtained not through Democratic opposition research but through legitimate intelligence-gathering methods.

Ironically enough, the memo in fact confirms the necessity of the Special Counsel Robert Mueller. Mueller insulated the investigation from the problematic elements of the FBI, disciplined a biased agent (Strzok), and is conducting an investigation that now includes copious amounts of alarming evidence gained independently of the memo — including the evidence that Donald Trump Jr., Jared Kushner, and Paul Manafort met with Russians in what was described in an email as a Russian plan to help Trump defeat Hillary Clinton. While there will be much more to say and write in the coming days, one thing seems clear: The memo does not torpedo the Russian investigation. It clears the decks for the special counsel to do his work.

This, of course, presumes people will read the facts logically. Sadly, there is no basis for that presumption.

FILED UNDER: Intelligence, James Joyner, Law and the Courts, National Security, Quick Picks
James Joyner
About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Command and Staff College, Marine Corps University, and a nonresident senior fellow at the Brent Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. michael reynolds says:

    Imagine if Republicans got their way and established the precedent that the personal opinions of any FBI agent could be cause for dismissing a case brought by the FBI. Is there an FBI agent who does not despise ISIS, Al Qaeda, MS-13, the mafia? The criminal justice system at the federal level would cease to function. We’d be powerless to convict anyone.

    It is just a matter of time before defense attorneys start citing Trump to discredit government witnesses in organized crime and terrorism cases.




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  2. TM 01 says:

    I’d heard that this memo was supposed to have Drastic National Security Implications, and would totally destroy the ability of the FBI to do their jobs going forward.

    What happened to that?

    Because now I’m being told it’s all a Big Nothing burger.




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  3. Todd says:

    Strzok may have his biases,

    I know that conservatives have no shame when it comes to hypocrisy, but are we really to believe that at least some of the FBI agents in the NY field office who were investigating the Wiener laptop didn’t have some pretty strong anti-Clinton views? It would be interesting to see some of their text messages … especially since it was reported at the time that the letter Jim Comey sent to congress, which may very well have flipped the election, may have been driven by the threat of leaks from that very NY field office.

    The idea that the FBI was biased against Trump during the campaign is ludicrous on its face … even more so given the fact that we didn’t even hear about the investigations into the Trump campaign until after the election was over. If Strzok and Page were “out to get Trump and protect Clinton” they really weren’t very effective.




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  4. James Joyner says:

    @TM 01:

    I’d heard that this memo was supposed to have Drastic National Security Implications, and would totally destroy the ability of the FBI to do their jobs going forward.

    You don’t think releasing classified internal memos this soon after the fact, on a purely partisan basis, will hinder FBI investigations? Why would anyone risk candor in a memo again if their motives might be publicly questioned?




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  5. gVOR08 says:

    @Todd:

    especially since it was reported at the time that the letter Jim Comey sent to congress, which may very well have flipped the election, may have been driven by the threat of leaks from that very NY field office.

    That. That damning bit of information about FBI bias seems to have largely gone down the memory hole.




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  6. gVOR08 says:

    @TM 01: How is it our fault that Nunes can’t deliver on his promises?




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  7. Scott says:

    I’ve said this before but I can see it coming: How soon are there going to be Soviet style political officers in all agencies to ensure correct thinking?




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  8. gVOR08 says:

    @Scott:

    Trump asked Congress “to reward good workers and to remove federal employees who undermine the public trust or fail the American people.” He also mentioned a new law making it easier for the Department of Veteran Affairs to fire employees.

    POLITICO




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  9. Just 'nutha ig'nint cracker says:

    @Todd: The hypocrisy of Conservatives far exceeds your ability to understand embracing hypocrisy as a concept. Animus toward Trump and animus toward Clintons are completely different things in two separate moral universes.




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  10. TM 01 says:

    @Scott:
    I’m pretty sure we had Political Officers at every govt agency during the previous administration.




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  11. TM 01 says:

    @James Joyner:
    The FBI has been fighting Congressional oversight for ages. Why? You don’t think using political biases to justify an investigation is a big deal?

    The IRS. The DOJ. Is there a govt agency that Obama didn’t politicize and use against his enemies?




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  12. Todd says:

    @TM 01:

    Is there a govt agency that Obama didn’t politicize and use against his enemies?

    When right-wingers say things like this, I don’t think they are being hyperbolic; they truly believe it. And the reason is simple …

    Because they EXPECT for the Republicans that they elected to do just that: use government agencies to punish their (liberal) enemies. Given that, it’s natural that (despite any real evidence such things occurred during the Obama Presidency) they would believe that their “enemies” have been doing the same thing all along.




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  13. TM 01 says:

    @Todd

    Actually, I expect those agencies to leave us ALL alone.

    Stop projecting.

    Was the IRS under GWB targeting left wing organizations? Asking for a lists of all their members? Their prayers (to Gaia obviously)? I don’t remember that.




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  14. TM 01 says:

    I’m actually going to start taking a knee during the National Anthem because of the injustices perpetuated by the federal police.




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  15. teve tory says:

    @Todd: It’s hard to imagine the mentality of someone who a) isn’t very educated and then b) spends years getting all their info from fox, breitbart, conservativetribune, gatewaypundit, etc. I mean that literally. Basic aspects of reality, gone. Batshit lunacy taken for granted.

    Millions of americans who 50 years ago would have gotten their info from Walter Cronkite and Huntley/BrinkIey now get it from Sean Hannity and Jim Hoft. I actually don’t think it’s a problem with a solution.

    I think about it like this–for a while I taught math in the rural deep south. I had kids who weren’t just ignorant, they were proud of it. I knew a 13 yro who bragged that he couldn’t read, because that made him Extra Redneck. But because I was their teacher, they still wound up grudgingly learning some math. Maybe how to multiply two numbers and get an area. I was in a walter cronkite type role. The new media environment is like that kid gets to pick his own teacher, and he picks Ted Nugent’s dumber cousin Cletus Nugent. So now he doesn’t even learn his times tables, and he graduates knowing how to load a shotgun and 56 racial slurs for muslims.




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  16. Todd says:

    @teve tory: “B” above is the real problem. I think we make a mistake assuming that those who disagree with us are “unintelligent” or even “uneducated”. I’m particularly aware of this, since I have a few friends who are extremely intelligent and very well educated (one is an Air Force O-6 with a PhD in statistics), yet are none-the-less susceptible to believing conservative bullshit. (and to be fair, I also know some very intelligent progressives who also believe some outrageous bullshit from that end of the spectrum).

    In short, it’s not an intelligence (or even really an education) problem.

    “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” ~ Mark Twain




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