The controversial Nunes memo is out. It claims the FBI and the Justice Department abused their surveillance authority on Trump’s 2016 Presidential campaign. Democrats say the memo is misleading.
The real surprise was the degree to which the document undermined the attacks that the president and his allies had been advancing to tarnish Mueller.
When the House Intelligence Committee finally did its dramatic reveal of the so-called Nunes memo, several things were immediately clear — and all were bad for committee chairman Devin Nunes and President Trump , the man his efforts were ultimately intended to benefit.
The push by Republican leaders to unveil this document, over the strenuous objections of the FBI, the Justice Department and Democrats in Congress, fit a broader pattern of coordinated attacks on Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election and Trump team ties to Russia. It began as soon as Mueller was appointed with phony claims about conflicts of interest, and has continued until today. The Trump allies’ MO: gin up hysteria around unsubstantiated allegations, ignore or suppress efforts to get to the truth, and move on to the next effort to tarnish.
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Most of the allegations in the Nunes memo had already been aired, and others were quickly discredited as misleading or undercut by other information that was excluded from the memo. Indeed, to the extent the document contained any surprises, it was the degree to which it actually undermined the attacks that the president and his allies had been advancing.
One such assault has claimed that the “Steele dossier,” opposition research compiled by the private firm Fusion GPS at the behest of the Clinton campaign, served as the basis for the investigation into the Trump campaign and surveillance of a former campaign aide. However, the Nunes memo says information about Trump campaign adviser George Papadopoulos — not the Steele dossier — “triggered the opening of an FBI counterintelligence investigation in late July 2016 . . . .” Whether that was intended or not, it undercuts the claim that the Russia investigation is based upon the dossier.
Most importantly, the Nunes memo fails utterly at Trump’s reported purpose in urging its release: to lay the groundwork for firing Deputy Attorney General Rod Rosenstein, who oversees Mueller’s investigation and is key to protecting that investigation going forward.
The memo says almost nothing about Rosenstein. It notes that he was one of five Justice and FBI officials to sign applications under the Foreign Intelligence Surveillance Act (FISA) for warrants to wiretap former Trump campaign aide Carter Page.
One of the others who took the same action was Dana Boente, whom Trump appointed acting attorney general after he fired Obama-administration holdover Sally Yates. Boente, incidentally, was recently chosen to become general counsel of the FBI — a decision that hardly seems consistent with a sincere belief that the Justice Department under his watch abused the surveillance process. The memo’s only other reference to Rosenstein is that a department attorney who met with Fusion GPS officials also did some work with Rosenstein — a factoid with little if any relevance.
The timeline of Rosenstein’s appointment and likely involvement in the FISA process undermines the idea that under his watch, the FBI hoodwinked a FISA judge into approving a warrant based on information that was less reliable than it claimed. Rosenstein was confirmed on April 25, 2017, long after any (wrongly) alleged shenanigans that launched the FISA process. It appears he did not sign an application to extend the FISA warrant until July — six months after it had been reported that the dossier was produced by Fusion GPS as a work of political opposition research. The supposed hidden origins and motives of the dossier had long been in the public record by then. Rosenstein can hardly be accused of concealing them.
There are nevertheless signs that the White House may still be using the memo to lay the groundwork for Rosenstein’s removal. Press Secretary Sarah Huckabee Sanders issued a statement Friday afternoon claiming that the Nunes memo “raises serious concerns about the integrity of decisions made at the highest levels of the Department of Justice and the FBI to use the Government’s most intrusive surveillance tools against American citizens.”
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Firing Rosenstein would be definitive proof in an obstruction of justice case. There is already substantial evidence that Trump has obstructed justice in demanding former FBI Director Jim Comey’s loyalty and terminating him when he did not deliver it. We now know Trump made a similar loyalty demand of Rosenstein (“are you on my team?”). If Trump actually moves to fire Rosenstein based on the empty pretext of the Nunes memo, it will represent the final nail in the legal coffin that the president’s pattern of conduct indeed amounts to obstruction of justice.
In the meantime, we must not forget that the Nunes memo and the many smears that preceded it impose significant costs to our national security and the rule of law. The coordinated attack on the integrity of the federal law enforcement and intelligence agencies will no doubt reduce public faith in the strength in those institutions and may hamper their ability to obtain intelligence in the future.
Politicizing the FISA process undermines our ability to conduct surveillance on foreign powers and their agents. For that reason, the most disturbing reflection about this episode is not that Nunes chose to engage in such a pointless, partisan battle to save Trump’s skin — it’s that Nunes and Republicans on the House Intelligence Committee were willing to sacrifice so much more for that selfish purpose.
Noah Bookbinder is the executive director of Citizens for Responsibility and Ethics in Washington.Norman Eisen, a senior fellow at the Brookings Institution, is the chairman of CREW. Caroline Fredrickson is president of the American Constitution Society. Follow them on Twitter: @NoahBookbinder, @NormEisen, @crfredrickson
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