The Nunes Memo Likely To Be Released Soon – Massive Fail Expected

Ken AshfordL'Affaire Russe, Republicans, Trump & AdministrationLeave a Comment

In an incredibly transparent display of partisanship, the House Intelligence Committee voted on Monday to:

(1) Release the Nunes memo
(2) Ignore requests from the FBI and the DOJ to vet the Nunes memo before any release; and
(3) NOT release the Democratic memo explaining why the Nunes memo is bullshit

Although the White House has five days to review the memo (to withhold it or declassify it), it is expected that it will release the Nunes memo in the interest of “transparency”, despite the best efforts of the intel community to protect classified information:

Top Justice Department officials made a last-ditch plea Monday to White House Chief of Staff John F. Kelly about the dangers of publicly releasing a memo alleging abuses by the Federal Bureau of Investigation, according to people briefed on the meeting.

Shortly before the House Intelligence Committee voted to make the document public, Deputy Attorney General Rod J. Rosenstein warned Kelly that the four-page memo prepared by House Republicans could jeopardize classified information and implored the president to reconsider his support for making it public, those people said. Rosenstein was joined in the meeting at the White House by FBI Director Christopher A. Wray.

Rosenstein, who is supervising special counsel Robert S. Mueller III’s investigation into Russia’s interference in the 2016 election, said the Department of Justice was not convinced the memo accurately describes its investigative practices. He said making the document public could set a dangerous precedent, according to a person familiar with the discussion.

While Wray also expressed opposition to the memo’s release, Rosenstein did much of the talking, according to a senior U.S. government official. Attorney General Jeff Sessions was not present at the meeting.

In response, Kelly told Rosenstein and Wray that the president was still inclined to release the memo but the White House would go through a review led by the National Security Council and the White House Counsel’s Office, a senior administration official said. That review is expected to take at least several days, a senior White House official said.

It ALMOST goes without saying that the Nunes memo is bullshit:

According to reports, the memo alleges that the Justice Department acted improperly when seeking a court approval in October 2016 for a FISA warrant to surveil former Trump adviser Carter Page, by not informing the FISA judge that a basis for the warrant, research by ex-British spy Christopher Steele, was being financed by Democrats. The memo comes as GOP lawmakers, led by Trump, have ramped up criticisms of the FBI as Special Counsel Robert Mueller’s Russia investigation heats up.

There are many reasons FISA experts don’t expect the allegations to stand up to the hype, which has involved a Twitter campaign to #ReleaseTheMemo and included GOP claims that what it shows is worse than Watergate.

For Republicans claims of an abuse to be true, one would have to assume that the dossier was the sole basis of the warrant application, that it was a “fabrication” and that the DOJ knew that it was a fabrication when it applied for the FISA warrant, Vladeck said.

“All three things would have to be true for this to actually be an abuse of FISA,” Vladeck said, adding that he wouldn’t take the claims seriously unless the White House declassifies the underlying warrant.

“The major problem here is that this is only arguably scandalous in any way if [the DOJ] just essentially repacked the dossier as a warrant package without any work of their own,” Sanchez said, adding that it would be “inconceivable to me that would be the only source.”

“I doubt they based it on a single source of information,” said a former Republican chair of the House Intel Committee, Mike Rogers, on CNN.

“I can’t imagine that the dossier was the centerpiece of a FISA application,” said  Robert Litt, a former general counsel for the Office of the Director of National Intelligence who also worked for the Justice Department.

“Number one, I don’t think the Department of Justice would have allowed that to go forward as the sole basis. Number two, I don’t think a judge a would have approved probable cause on that basis alone,” Litt said. “And number three, everything I read has suggested that there was considerable other information about Page before this dossier came in.”

People need to realize that FISA warrant applications presented to the judge end up being dozens of pages long. Before a FISA application makes it to the judge, it travels through many layers of review at the FBI that also includes career DOJ lawyers, who verify the source of every fact laid out in the application’s affidavit. A warrant for Page would have been treated with extra scrutiny, given the political sensitivities of him having been affiliated with Trump’s campaign.

Orin Kerr:

First, you need to know all of the facts claimed in the Carter Page FISA affidavit to know if disclosing the funding source of the Steele’s research was even remotely relevant. My understanding is that FISA applications like this are rarely close calls.  DOJ usually gives the FISC way more than probable cause.  (At least that’s my understanding: I was at DOJ and applied for warrants and a Title III order way back when, but I haven’t done any FISC work.)  If that’s right, it means that Steele’s research may have been included in the affidavit amidst a ton of other evidence. And if so, the Steele research itself may have been wholly irrelevant to application. It’s hard to see any significance to whether the funding source of irrelevant research was included. If that’s right, the omission was not material, in the language of Smith v. Edwards; including it would not have negated probable cause. And you would need to assess that based on reading the entire affidavit, not just whatever is alleged in the four-page Nunes memo.

Second, even if the Steele research was a major part of the affidavit, whether the funding source would need to be disclosed depends on whether it critically altered the case for probable cause.  Some of that would depend on whether the Steele research was corroborated. If the government looked into the Steele memorandum and corroborated some of its claims, it undercuts the need to disclose the funding source.

And some of that depends on identifying just what the narrative is for why the funding source was critical to establishing probable cause. I think that point is really important and too easily ignored.  In #ReleaseTheMemo circles, any possible link between the Steele dosssier and the Clinton campaign is like an atomic bomb. It completely annihilates any possible credibility the Steele dossier may have, leaving the exposed words of the dossier behind like the haunting shadows of the Hiroshima blast.

But that’s not how actual law works. In the world of actual law, there needs to be a good reason for the judge to think, once informed of the claim of bias, that the informant was just totally making it up.  As United States v. Strifler shows, that isn’t necessarily the case even if the government paid the informant to talk and guaranteed that they would get out of jail if they did.  Nor is it necessarily the case just because the informant is in personal feud with the suspect. What matters is whether, based on the totality of the circumstances, the information came from a credible source.

That’s a problem for #ReleaseTheMemo, I think. To my knowledge, Steele was not some random person motivated by an ongoing personal feud against Trump or Carter Page. To my knowledge, he was not a drug dealer facing criminal charges who was promised freedom if he could come up with something for the government’s FISA application. Instead, Steele was a former MI6 intelligence officer and Russia expert. He was hired to do opposition research because of his professional reputation, expertise and contacts.  And his work was apparently taken pretty seriously by United States intelligence agencies. Of course, that doesn’t mean that what’s in the dossier is true. Maybe the key allegations are totally wrong. But if you’re trying to argue that Steele’s funding sources ruin the credibility of his research, his professional training and background make that an uphill battle.

Nunes, who has beclowned himself before, all but admitted that he was relinquishing his role as head of a committee charged with oversight:

The Republican chairman of the House intelligence committee refused to answer when a colleague asked him if he had coordinated his incendiary surveillance memo with the White House, The Daily Beast has learned.

During Monday’s contentious closed-door committee meeting, Rep. Mike Quigley, a Democrat, asked Nunes point-blank if his staffers had been talking with the White House as they compiled a four-page memo alleging FBI and Justice Department abuses over surveillance of President Trump’s allies in the Russia probe.

According to sources familiar with the exchange, Nunes made a few comments that didn’t answer the question before finally responding, “I’m not answering.”

Spokespeople for Nunes and for the White House did not immediately respond.

Yup. This is another White House-Nunes joint effort.  This means the real intended target of the memo is Deputy AG Rod Rosenstein, who has the authority to fire Mueller, who is investigating Trump:

Of particular importance, the Republican memo is said to cite the role of Rod J. Rosenstein, the deputy attorney general appointed by Mr. Trump last year, in signing off on an application to extend the surveillance of Mr. Page — meaning he approved the resubmission of Mr. Steele’s information to the court. Mr. Rosenstein’s role could provide critics of the inquiry ammunition to go after him.

Under Justice Department regulations, only Mr. Rosenstein can fire Mr. Mueller, and only if he finds that the special counsel has committed misconduct — something he has repeatedly said he has not seen any sign of. But if Mr. Trump were to fire Mr. Rosenstein, he could install a more accommodating replacement willing to say that he or she had spotted a reason to justify removing the special counsel and shutting down the investigation.

Republican Amanda Carpenter wonders why her party is trying to gaslight America:

The #ReleasetheMemo campaign bears all the classic hallmarks of a uniquely Trumpian ruse. Throughout his career as a New York real estate mogul and media star Trump has stumbled upon a foolproof way of trapping people into his web of lies. He always begins by casting vague aspersions about his target, in this case, the law enforcement networks investigating him. Recall how news reports of the now well-known and controversial dossier prompted him to ask, “Are we living in Nazi Germany?” Or how he compared the surveillance of campaign associates, such as Paul Manafort and Carter Page, to “McCarthyism” and “Nixon/Watergate.” Nevermind that his actions more closely resemble those of Nixon during Watergate than anything undertaken those investigating him. Trump wanted his followers to believe one thing and one thing only: A massive conspiracy was underfoot to undermine his presidency, and he’s been peddling this particular theory for well over a year now.

Next step: Rather than answer any questions directly about the matter, Trump advances his narrative, often while denying any responsibility for it. His statement to NBC’s Lester Holt about firing Comey is a classic example. “And, in fact when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election they should have won,” he said. In other words, he fired Comey because of the Russian investigation, but denied there was any wrong doing with Russia. This tactic has similarly played out with #ReleasetheMemo. Republicans have widely advanced the narrative that various abuses were committed, but denied naming anything specific, citing security concerns with releasing the material.

Here’s another Trumpian tactic: suspense building. When Trump tweeted that “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” people immediately started to question whether, a la Watergate, there was a secret taping system inside the Oval Office. They hoped there were tapes. Even Comey himself testified to Congress, “Lordy, I hope there are tapes.” Weeks later, Trump admitted there were no tapes. Oftentimes Trump will, whether he has it or not, promise information will come out “soon … perhaps in two weeks.” This is the precise stage we find ourselves upon now with #ReleasetheMemo. At this moment, Trump is waiting to make a final decision to release the contents. We all have our countdown clocks on; Trump is in control of this story. Whatever happens next, rest assured, Trump will use the self-manufactured controversy Nunes created to discredit the Russian investigators.

You may think this all sounds silly and misleading; that this nonsense could never work. But when people see what’s in the memo, it won’t settle the debate. More likely than not, another round of gaslighting will begin to tip the debate in Trump’s favor. Remember, Trump is the same guy who used the bogus birther theory to launch himself on the political stage. He is the same guy who used the National Enquirer to accuse Ted Cruz’s father of being involved in the assassination of JFK. Don’t laugh. The same week Trump started flacking the flabbergasting story, Cruz dropped out of the presidential election and Trump became the default GOP presidential nominee.

And this time, Trump has an eager crop of Republicans on Capitol Hill eager to assist him and an entire government apparatus at his disposal in the form of bobble-headed Cabinet secretaries, press teams and even a vice president. As a result, everyone is talking about what could possibly be in the mysterious memo. Republicans are running to TV cameras hyping claims about improper surveillance, FISA court abuse and partisan rancor inside the FBI.

We are being gaslit into believing that, supposedly, those investigating Trump’s ties to Russia are so biased and corrupt nothing they produce should be believed. Every once in a while, the true aims of this narrative are revealed. Rep. Matt Gaetz, the freshly-elected Republican congressman from Florida, let the truth slip. He told CNN’s Jake Tapper in between his hits on InfoWars with Alex Jones, that there was “tremendous bias that should stop this probe from going forward.”

“Stop this probe from going forward.” Alas, there is always a purpose to Trump’s gaslighting. Trump’s firemen on Capitol Hill know their mission. Whether they succeed or not depends on our ability to see through the smoke. At this point, the future seems hazy.

This will be the news of the week when it is released. I expect it will not go well for Nunes and Trump (except on Hannity and Fox & Friends)

UPDATE:

The FBI rarely issue public statements, but it did here:

If Trump okays the release of the memo, he will be ignoring the fears of his own appointee to run the FBI that would be a serious mistake to do so. If there’s any historical precedent for such a step, I don’t know what it is.

So what’s going on here is Nunes memo is *both* considered false info *and* outs US intel sources & methods, but the White House will release it anyway in order to help block the investigation into Russian espionage. That’s amazing.

A reminder:

DOC DUMP:  This is the transcript from the House Intelligence Committee, where the members, on party lines, decided to release the Nunes memo despite no FBI or DOJ vetting.