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.