The Surprise in the Nunes Memo

A hotly anticipated memo from Representative Devin Nunes and Republican staff on the House Intelligence Committee offers a few new interesting pieces of information about the investigation into Russian interference in the election—though it leaves the most important questions unanswered. And in one crucial way, it seems to undermine the political case it was released to bolster. 

The most important and interesting assertions, yet the ones that cry out for more clarification, concern an application to the Foreign Intelligence Surveillance Act court to surveil former Trump foreign-policy adviser Carter Page. The memo states that a dossier prepared by Christopher Steele, a former British intelligence official researching Trump on behalf of a firm hired by the Democratic National Committee, “formed an essential part of the Carter Page FISA application.” It also states that outgoing FBI Deputy Director Andrew McCabe told the committee that “no surveillance warrant would have been sought from the FISC without the Steele dossier information.”

Each of these statements is important but heavily contingent. For one thing, the importance of the revelations hinges on the use of “essential.” National-security-law experts say FISA-warrant applications often run dozens of pages, and the Steele dossier doesn’t have dozens of pages on Page. Nor is it clear what role the Steele dossier played in the granting of the warrant, even if the FBI wouldn’t have sought it without that information.

Perhaps most importantly, the final bullet point in the memo undermines its apparent political aims. The memo is clearly intended to discredit the investigation into the Trump campaign’s ties to Russia, and President Trump was eager to declassify it because he hoped it would do so, but the memo acknowledges (while mentioning controversial FBI agent Peter Strzok) that the investigation predates the Page warrant:

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.

Trump and his aides have argued that the investigation is a political witch hunt, stemming from the DNC-funded dossier, but this paragraph confirms a New York Times story in late 2017 that reported that the investigation began with Papadopoulos. (Papadopoulos, another former campaign aide, pleaded guilty to lying to the FBI and is cooperating with Special Counsel Robert Mueller’s probe.)

After days of fevered speculation about the memo, the document that emerges is interesting but vague. It is not the game-changer that some Republicans in the House promised. Importantly, it is also a partisan document, prepared by a close ally of the president’s who served on his transition team and has provided unreliable information in the recent past. The intelligence committee also rejected a request from Democratic members to release a rebuttal memo.

In a lengthy statement, committee Democrats blasted the memo.

“The premise of the Nunes memo is that the FBI and DOJ corruptly sought a FISA warrant on a former Trump campaign foreign policy adviser, Carter Page, and deliberately misled the court as part of a systematic abuse of the FISA process,” they said. “As the Minority memo makes clear, none of this is true. The FBI had good reason to be concerned about Carter Page and would have been derelict in its responsibility to protect the country had it not sought a FISA warrant.”

Democrats noted that Nunes had not reviewed the underlying intelligence, having delegated the task to staffers. (It was also reviewed by Representative Trey Gowdy, chair of the House Oversight committee.) They also wrote, “In claiming that there is ‘no evidence of any cooperation or conspiracy between Page and Papadopoulos,’ the Majority deliberately misstates the reason why DOJ specifically explained Russia’s role in courting Papadopoulos and the context in which to evaluate Russian approaches to Page.”

There are many questions that remain about the memo, though whether and when the public might get answers is unclear, because much of the information involved remains classified. In addition to the vague point about the dossier’s “essential” role in the warrant application, it’s unclear what other information was in the application, beyond what the memo has specified. There’s also no legal prohibition on using partisan information in such an application, as Orin Kerr explains. And as Jim Sciutto notes, FISA warrants have to be renewed every 90 days, and the FBI couldn’t have simply relied on the dossier for those. It would have to prove it was obtaining valuable intelligence from the wiretap.

One passage in the Nunes memo seems to explain a mysterious incident in which Senate Judiciary Committee Chair Chuck Grassley and Senator Lindsey Graham referred Steele to the Department of Justice for prosecution, saying he’d lied to federal officials but not explaining when or to whom. But the memo says that Steele was suspended as an FBI source after speaking to the media about his contacts with the FBI in a late-October Mother Jones story. The memo adds, “Steele should have been terminated for his previous undisclosed contacts with Yahoo and other outlets in September-before the Page application was submitted to the FISC in October—but Steele improperly concealed from and lied to the FBI about those contacts.” (It’s not clear whether this is true; two sources familiar with Steele’s actions disputed the account, my colleague Natasha Bertrand reported.)

Given that the memo seems to miss expectations, readers are left to wonder whether the FBI overplayed its hand in strenuously objecting to the memo’s release. The memo will focus attention on whether it is too easy for the FBI to obtain FISA warrants. Civil libertarians have long argued this is the case, but many House Republicans, including Nunes, voted against reforms to the FISA system just last month.

Ironically, although the memo sets out to discredit the dossier, its public release seems likely to bring new attention to it, and in particular to whether U.S. intelligence was able to confirm claims that Steele made. If these claims were independently confirmed, it would further undermine the memo’s claims about the dossier’s centrality and unreliability; if they were not, it bolsters the memo’s concerns.

As for the broader question of the Russia investigation, the memo may muddy the waters—Page already says he intends to rely on it in his own ongoing legal cases—but it seems less likely to radically change the course of the investigation. This is not only because it acknowledges that the Russia probe antedates the Steele dossier, but also because it has no bearing on a huge range of other leads in the story: Papadopoulos’s guilty plea, and that of Michael Flynn; the Trump Tower meeting in 2016; whether Trump obstructed justice; and several others.

If the legal ramifications of the memo seem minimal, the political repercussions are less clear. In particular, the president might use the memo as a pretext to fire Deputy Attorney General Rod Rosenstein, with whom he has long expressed dissatisfaction. In brief comments about the memo in the Oval Office on Friday, Trump was asked if he had confidence in Rosenstein and replied, “You figure it out.” Those comments are much easier to parse than the contents of the memo.