A few weeks after the Nunes memo, the Democrats on the House Intel have finally been allowed to release their response memo. It eviscerates the Nunes memo of course, and is heavily sourced, although much of the sources lie in classified documents. It also questions, as it should, the motives of Devin Nunes.
Here is the memo:
The President was quick to weigh in.
These are inaccurate, or misleading at best.
Here are several takeaways.
The first important—and, we should add, hilarious—aspect of the Democratic memo is its claim that the guy who brought us the “unmasking scandal” is now upset, at least in this instance, about the absence of unmasking. This point is not merely an amusing irony, though it certainly is that. The Nunes memo, which focuses on information taken from the dossier compiled by former British intelligence agent Christopher Steele, claims that the Justice Department and the FBI hid Steele’s bias against Trump from the Foreign Intelligence Surveillance Act court when it sought the FISA warrant and hid also the fact that Steele’s work was supported financially by the Clinton campaign and the Democratic National Committee. If Schiff & Co. are to be believed, the explanation for this obscurity was nothing more than routine minimization of U.S. person identities—and the FBI did a reasonable job conveying in general terms who Steele was and for whom he was working.
In the earlier controversy, Nunes fretted that Obama administration officials had allegedly sought the unmasking of U.S. persons whose identities had been “minimized”—masked by generic words like “U.S. Person #1” in intelligence reporting—for supposedly political reasons. Leave aside for the time being that there appears to be no evidence that anyone behaved inappropriately in whatever unmaskings took place during that episode. Here Nunes’s complaint appears to be exactly the opposite: that the FBI was not unmasking the identities of U.S. persons and entities in its interactions with the FISA court.
The significance of these non-unmaskings is that they formed the basis for the Nunes memo’s allegations that the Justice Department and the FBI omitted from the Carter Page FISA application information on who created and funded the dossier that would have brought its reliability into question. While the application did indicate that “Steele was working for a named U.S. person,” the Nunes memo complained, it “did not name Fusion GPS and principal Glenn Simpson.” The committee majority also argued that neither the original application nor any of the renewal applications “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 DOJ and FBI officials.”
The Democratic Memo, by contrast, states that the decision not to directly identify Simpson stemmed from “longstanding [Justice Department] practice of protecting U.S. citizen information by purposefully not ‘unmasking’ U.S. person and entity names, unless they were themselves the subject of a counterintelligence investigation.” The Democratic memo doesn’t resist the opportunity of poking the majority on the contradiction of faulting the Obama-era investigation both for unmasking some Trump-related subjects and for not unmasking others, noting that “the Committee Majority … earlier accused Obama Administration officials of improper ‘unmasking.’” If the explanation is really as benign as the Democratic memo suggests, the poke is justified.
On the merits, the Democratic memo also seems compelling in its claim that the FISA application, in fact, communicated reasonably to the court the information about Steele and his funders that the government had in its possession. The committee minority quotes the relevant section of the initial application to surveil Page:
[Steele] was approached by an identified U.S. Person, who indicated to Source #1 [Steele] that a U.S.-based law firm had hired the identified U.S. Person to conduct research regarding Candidate #1’s ties to Russia. (The identified U.S. Person and Source #1 have a long-standing business relationship.) The identified U.S. person hired Source #1 to conduct this research. The identified U.S. Person never advised Source #1 as to the motivation behind the research into Candidate #1’s ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1’s campaign” (emphasis in original).
More generally, the Democratic memo claims that the Justice Department “informed the Court accurately that Steele was hired by politically-motivated U.S. persons and entities and that his research appeared intended for use ‘to discredit’ Trump’s campaign.”
In other words, even though the FISA application didn’t identify the DNC and the Clinton campaign by name, it made very clear that Steele’s research was politically motivated. This is exactly what David Kris, who knows a thing or two about FISA, suggested when the Nunes memo first broke: While Nunes’s allegations were “potentially problematic,” he said, “the FISA applications would be fine” if the Justice Department informed the court that Steele had been funded by people working against the Trump campaign, even if the DNC was not identified by name.
The second important feature of the Democratic memo is that it clarifies not only that the Steele dossier was not the origin story of the Russia investigation (which we already knew and which the Nunes memo actually admits) but that Steele’s information wasn’t even the origin story of the Carter Page investigation, which itself began significantly after Page left the Trump campaign. Although the FBI first applied for a FISA warrant against Page in October 2016, the Democratic memo contends that the bureau was concerned well before about Page’s contacts with Russians. Agents interviewed Page “multiple times” before the FBI became aware of the Steele dossier in September 2016, including in March of that year—the same month Trump named Page as a campaign adviser.
As this history suggests, the Democratic memo claims that Steele’s information came in the context of a large amount of other material about Page, some of which the public has known about. Indeed, the Democratic memo claims that the Steele information fit comfortably with preexisting information the FBI had developed on Page. In other words, the Steele information might have been the precipitating event for the FISA application, but it was not the sum total of its contents, the Democrats contend.
This is consistent with what is known of FBI Deputy Director Andrew McCabe’s testimony before the intelligence committee in December 2017: The Nunes memo paraphrases McCabe’s testimony as suggesting that “no surveillance warrant would have been sought from the FISC without the Steele dossier information.” The implication was that McCabe was admitting that the dossier was the principal source of intelligence used in the FISA application—a characterization of McCabe’s testimony that the Democrats have disputed. But another way to read McCabe’s comment, consistent with Schiff’s rebuttal of the Nunes memo, is that the Steele information functioned as some kind of tipping point in the FBI’s decision to apply for a warrant even though it didn’t constitute the full body of information the bureau had on Page.
Notably, the Democratic memo claims that the surveillance on Page was productive from an intelligence point of view. We suspected this before as a matter of inference from the fact, reported in the Nunes memo, that the warrant was renewed three times. But the Democratic memo makes the claim explicitly, saying that “[t]he Court-approved surveillance of Page allowed FBI to collect valuable intelligence. The FISA renewals demonstrate that the FBI collected important investigative information and leads by conducting Court-approved surveillance.” The Democratic memo also asserts that the renewals included other strands of information on Page from “multiple independent sources.”
Finally, the Democratic memo claims that by September 2016, the probe of L’Affaire Russe had divided into several sub-inquiries—and the document apparently identifies these subsidiary investigations, though the identification is redacted:
On Twitter, Matt Tait suggests that the redaction may reference “four” Trump campaign officials (you can almost make out the word “four” in the badly-redacted section).
Whether or not that’s correct, the clear implication here is that by September 2016, the bureau had some number of distinct open counterintelligence probes related to L’Affaire Russe, each tied to a different individual. The question, of course, is who those individuals might be. Notably, this section of the memo includes a citation to an endnote, which reads: “Under the Special Counsel’s direction, [Michael] Flynn and [George] Papadopoulos have both pleaded guilty to lying to federal investigators and are cooperating with the Special Counsel’s investigation, while Manafort and his long-time aide, former Trump deputy campaign manager Rick Gates, have been indicted on multiple counts and are awaiting trial. . . .”
So perhaps Flynn and Manafort are among those into whom the FBI had opened sub-inquiries—and possibly Gates, though the use of his full name in the footnote suggests that this is the first reference to him in the memo. Roger Stone may also be a candidate: New York Times reporter Adam Goldman notes that, in January 2017, the Times reported on FBI investigations into Stone, Manafort and Flynn.
It seems likely, in any event, that this passage in the memo refers to Trump campaign figures already publicly known to have come under scrutiny. Schiff and the Democrats, after all, intended this document for public release, so presumably they were unlikely to name new investigative subjects previously unknown to the public to be under investigation. At the same time, it’s also possible that the redaction here might hide the name of someone not previously known to have been under investigation in that time frame. As Robert Mueller continually reminds us, there’s a lot we don’t know about this investigation.
Should we believe the Democratic memo? There’s one very good reason to believe that it is, broadly speaking, factually accurate — the Republican members of the House intelligence committee aren’t contesting its factual claims. In a document released by the majority Saturday, the Republicans cite a letter released by Sens. Chuck Grassley and Lindsey Graham to argue that the dossier, in fact, made up “the bulk of” the FISA application. That’s a genuine disagreement with the Democratic memo, which says that the FBI “made only narrow use of information from Steele’s sources about Page’s specific activities in 2016”—and that dispute is impossible to resolve without seeing the FISA application itself.
But otherwise, the Republican talking points seem to be what Washington Post editor Ben Bradlee famously termed a “non-denial denial.” The Republicans argue that the FISA application does not mention Steele’s personal antipathy toward Trump, in addition to Simpson’s political motivations; that the FBI “buried” the information on the partisan cast of Steele’s work in a “convoluted” footnote; and that the Steele dossier was the only source for the FBI’s claim that Page had met with particular Russians while in Moscow.
But the Republican talking points largely don’t contest the factual statements made in the Democratic memo. That is a damning omission about a document that itself alleges a set of damning omissions.