The Nunes Memo’s Big Lies
As I noted yesterday, one of the central allegations of the memorandum released yesterday by the Republicans on the House Intelligence Committee is the claim that the F.B.I. agents seeking the initial surveillance warrant against Carter Page in the FISA Court did not disclose the fact that one of the pieces of evidence used to support their probable cause application, the so-called Steele dossier, was financed in part by an organization called Fusion GPS and allegedly financed by the Democratic National Committee and supporters of Hillary Clinton. As it turns out, numerous reports today are saying that this was in fact disclosed to the FISA Judge who issued the warrant:
A central pillar of Rep. Devin Nunes’ memo alleging wrongdoing by the FBI — that the government did not disclose the political bias of a source when seeking a surveillance warrant — is unfounded, the Washington Post, New York Times and Wall Street Journal have reported.
President Donald Trump on Friday declassified a memo spearheaded by the California Republican that alleges the FBI abused its authority in applying for a FISA warrant to conduct surveillance on former Trump campaign adviser Carter Page.
The GOP memo claims that ex-British intelligence officer Christopher Steele, who authored a disputed opposition research dossier on
Trump that was used in the FISA warrant application, harbored anti-Trump financial and ideological motivations — including that research that went into the dossier was funded in part by Hillary Clinton’s campaign and the Democratic National Committee. The memo alleges that those motivations were not included in the FISA application, and that senior Justice Department officials knew about Steele’s anti-Trump bias.
“Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior and FBI officials,” the memo alleges.
But according to an official cited in the Post on Friday, who spoke on the condition of anonymity because of the matter’s sensitivity, the Justice Department presented “ample disclosure of relevant, material facts,” to the FISA court, including that “the research was being paid for by a political entity.”
The New York Times also reported Friday that the FISA court was told about political motivations behind the dossier. A Democratic memo written to rebut the allegations in Nunes’ document said the FBI did, in fact, tell the court that the information in the Steele dossier was politically motivated, even if the bureau didn’t mention that research that went into the dossier was paid for by Democrats, the Times reported, citing two people familiar with the Democratic memo.
The Wall Street Journal further reported that, according to a person familiar with the matter, the FISA application disclosed that Steele was paid by a law firm working for a major political party,
Steve Vladeck, a CNN legal analyst and professor at the University of Texas School of Law, tweeted Saturday that the news reports served as “proof that the #mehmo deliberately misrepresented the record to make the #FISA application look shadier than it was” and called the revelations “(f)atal to the memo’s entire premise.”
“I don’t find these reports at all surprising, because it would’ve been the responsible thing for the government to say, especially if, as appears to be the case, there was a lot of additional evidence not derived from the dossier that was part of the underlying application,” Vladeck later said in an email. “It all just further undermines not just the specific conclusions of the Nunes memo, but the larger point it’s being invoked by the President and his supporters to make.”
This isn’t the only part of the Nunes memo that appears to be a lie. The Wall Street Journal reports that, contrary to the claim in the memo, former F.B.I. Deputy Director Andrew McCabe did not testify before the committee that the Steele dossier was the most important piece of evidence that allowed the Bureau to get the warrant against Page. Instead, sources in both the Department of Justice and Congress are saying something quite different:
One new element related to purported testimony of Andrew McCabe, a deputy FBI director who just stepped down this past week, about the importance of the Steele dossier in obtaining surveillance warrants on Mr. Page. The memo alleges that Mr. McCabe testified before the House Intelligence Committee in December that “no surveillance warrant would have been sough without the Steele dossier information.”
Officials in Congress and the Justice Department familiar with Mr. McCabe’s testimony said the memo mischaracterized what he told lawmakers. He was asked what percentage of information in the FISA application was provided by Mr. Steele, and he demurred, saying the FBI didn’t evaluate such applications in such a way. Mr. McCabe was asked if it might have accounted for half of the warrant application, and he said he didn’t know, one person familiar with the matter said.
This is a significant difference from what the memo claims McCabe told the Committee and puts the warrant application and the extent to which it even relied on the allegedly compromised Steele dossier in an entirely different light from the one the memo tries to spin it.
While we can’t be sure of the veracity of these reports without seeing the actual warrant application, which remains classified, each of these reports is apparently based on confirmation from independent sources. However, as several analysts and attorneys with experience with warrant applications in Federal courts generally and in FISA courts specifically have said that it would be highly unusual for the agents and U.S. Attorneys applying for the warrant not to disclose the origins of any of the underlying evidence supporting their probable cause application. For one thing, failure to do so risks the possibility that any evidence uncovered pursuant to such warrants could be excluded from being used as evidence if it were ever used in a prosecution of a Defendant such as Page on the ground that the warrant was obtained in bad faith. For another, if the court became independently aware of this information it could harm their general reputation and impact their ability to obtain warrants in future cases. While it’s certainly possible that the parties involved in obtaining the warrant against Carter Page might have chosen to leave the information about its source out of the application, it’s an idea that strains credulity. In light of this, the Nunes memo’s entire central thesis collapses.
This revelation isn’t entirely surprising since Nunes admitted yesterday that he didn’t read the underlying warrant application before preparing the memorandum with the assistance of Intelligence Committee staff. Instead, he relied upon the notes taken by South Carolina Congressman Trey Gowdy, who is apparently the only member of the Committee who did read the application. Gowdy, of course, spent the better part of yesterday distancing himself from the conclusions in the memo and stating publicly that it doesn’t undermine the Mueller investigation in any way. Since we don’t have access to whatever notes Gowdy may have made based on his review, much less the underlying warrant application, it’s difficult to state whether or not the allegation is true, but it seems as though it is not.
If these reports are accurate, then the entire memo falls apart. The central premise of Nunes’s hit piece was the claim that the surveillance of Page, which post-dated the beginning of the Russia investigation by three months, was based on a politically biased document that had been funded by political enemies. If that claim proves to be untrue, then the entire premise of the memo falls apart and it is revealed to be the politically biased piece of trash that many people, myself included, suspected it would be all along. Of course, in order to know if this is the case or not for sure, we need to see the underlying warrant application, as well as the memorandum prepared by the Democrats on the Intelligence Committee. According to some reports, the second document is likely to be released sometime next week after it has been reviewed and revised to ensure it’s not disclosing sensitive or classified information. As for the warrant application itself, there’s no word on whether or not there will be any move to release it. On the one hand, it would answer any of the remaining questions the Nunes memo raises. On the other, it could contain information so sensitive that it can’t be released. Whatever the case, it does seem that the Nunes memo is not just a nothing burger as I concluded yesterday. It’s a big partisan lie.