‘Politics of hysteria’: The much-anticipated Nunes memo left experts underwhelmed

President Donald Trump Getty Images/Pool
  • The highly-anticipated release of Rep. Devin Nunes’ memo, which claims to show the Department of Justice and FBI abusing their surveillance power, seemed more like a list of Republican talking points, experts said Friday.
  • The memo did not alter the facts of the Russia investigation, they said, and it did not have any information indicating that law enforcement officials bypassed protocol at any point.
  • But the memo will still likely be weaponised by allies of President Donald Trump, many of whom have urged him to clean house at the DOJ and the FBI.

The release on Friday of a highly controversial memo that claims surveillance abuse on the part of the FBI and the Department of Justice has Republicans and Democrats at each other’s throats.

While Republicans say the document, which was compiled by embattled House Intelligence Committee chairman Devin Nunes, is clear evidence of partisan bias at the DOJ and the FBI, Democrats say it contains significant omissions and inaccuracies that mischaracterize the intelligence community’s work.

Addressing the memo’s release on Friday, President Donald Trump said, “I think it’s a disgrace what’s happening in our country.”

But as far as its material claims go, the memo was underwhelming to legal experts and former intelligence officials.

Its primary allegation was that the DOJ and FBI bypassed proper procedure when seeking a FISA warrant to surveil former Trump campaign adviser Carter Page. Nunes said Friday that he has not viewed the underlying intelligence that he based his memo on. Even so, he claimed in the document that the DOJ and FBI waived protocol by omitting “material and relevant information” from the FISA warrant, including that:

  1. The Steele dossier, which was compiled by former British spy Christopher Steele and alleges several ties between Trump and Russia, was funded by the Hillary Clinton campaign and the Democratic National Committee via the law firm Perkins Coie, which retained the opposition research firm Fusion GPS to produce the dossier.
  2. Steele had improper contact with members of the media and was later “suspended and then terminated as an FBI source for what the FBI defines as the most serious of violations – an unauthorised disclosure to the media of his relationship with the FBI …”
  3. In September 2016, Steele told a senior DOJ official whose wife worked for Fusion GPS that he was “desperate that Donald Trump not get elected and was passionate about him not being president.”
  4. Corroboration of the Steele dossier was in its “infancy” at the time of the initial FISA application to monitor Page.
  5. The Russia investigation was launched after early foreign-policy adviser George Papadopoulos told a top Australian diplomat that he had been offered kompromat on then Democratic candidate Hillary Clinton.

Devin Nunes
Devin Nunes. Getty Images

‘Republican talking points dressed up as a classified memo’

Robert Deitz, the former general counsel at the National Security Agency, put it bluntly: “This is a big nothingburger.”

“Notice that the bulk of what is going on in this memo is an attack not on the veracity of the information, but an attack on the provider of the information, and that’s crucial to understand,” he said. “These are Republican talking points dressed up as a classified memo.”

The Steele dossier was originally funded by a group of Republicans who opposed Trump during the Republican primaries. After Trump became the party’s nominee, Hillary Clinton’s campaign and the Democratic National Committee hired the Perkins Coie law firm, which in turn retained the opposition-research firm Fusion GPS to fund the dossier’s production.

Trump and his allies in Congress and in the media have pointed to those revelations to paint the dossier as “phony” and evidence of what they characterise as Hillary Clinton’s collusion with the FBI and the DOJ.

“This is a classic diversionary tactic,” former CIA operative Glenn Carle said of the memo’s mention of the dossier. “You don’t like the message, you tar the messenger. But facts are facts, and point after point after point of the dossier has been verified.”

While many of the dossier’s claims still remain uncorroborated, both the FBI and the Senate Intelligence Committee are using it as a “roadmap” to conduct their investigations into Russia’s election interference.

Nunes’ memo also contained another section which observers immediately latched onto, because it undercut a main GOP talking point with respect to the Russia investigation. Specifically, that it was launched primarily based on the “Clinton made fakedossier” containing salacious and uncorroborated information meant to undermine the Trump presidency.

According to the memo, the FISA application for Page “also mentions information regarding fellow Trump campaign advisor George Papadopoulos, but there is no evidence of any cooperation or conspiracy between Page and Papadopoulos.”

It goes on to say, “The Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Peter Strzok.”

The “Papadopoulos information” Nunes was referring to was an interaction the former aide had in May 2016, during which Papadopoulos is said to have boasted to a top Australian diplomat about Russia’s “kompromat” on Clinton while he was drinking at a swanky London bar.

In July 2016, the anti-secrecy group WikiLeaks posted a trove of hacked emails from the DNC. Australian officials then informed their American counterparts of Papadopoulos’ conversation with the diplomat, Alexander Downer, which is what prompted the FBI to open its investigation, The New York Times reported last year.

“So Nunes is indirectly admitting here that the Steele dossier was not, in fact, the factor that launched the Russia investigation,” Carle said.

Former federal prosecutor Jeffrey Cramer questioned Nunes’ decision to include the Papadopoulos reference in the memo as well. “It seems like they ran out of things to say,” he said. “That part reads like a defence motion if Page was indicted and they relied upon Papadopoulos.”

‘A HUGE omission’

Nunes also went on to touch base on recent revelations that Mueller ousted an investigator on his team, Peter Strzok, after it emerged that Strzok was exchanging anti-Trump text messages with FBI lawyer Lisa Page, with whom he was reportedly having an extramarital affair.

Nunes’ memo claims that the Strzok-Page texts “demonstrated a clear bias against Trump and in favour of Clinton,” adding that they “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.”

Patrick Cotter, a longtime former federal prosecutor who has worked in the past with investigators on Mueller’s team, said of the texts in an earlier interview, “I guess I’d ask how the existence or content of emails between two people at the FBI could possibly change any of the facts.”

“What [former national security adviser Michael Flynn] said matters; the circumstances of his resignation matter; [attorney general Jeff] Sessions’ actions, the facts surrounding Comey’s firing and Mueller’s appointment; all those facts matter,” he added. “What two people at the FBI not directly involved in any of these events said to each other does not matter,” and “it hardly would be evidence that had any admissibility or relevance to the Mueller investigation or an eventual grand jury’s decision regarding that evidence.”

Carle made a similar point with respect to Steele’s conversation with Bruce Ohr, a senior DOJ official whose wife worked for Fusion GPS during the 2016 election. Ohr, who oversees the organised crime task force at the DOJ, told the FBI that Steele told him in September 2016 that he was “desperate” Trump not be elected “and was passionate about him not being president.”

Steele’s concern, Carle said, was natural given “the extensive associations of the Trump entourage with Russian intelligence activites. But this is immaterial: if two and two add to four, it does not matter that the person doing the maths is left-handed or right-handed.”

Moreover, experts said the fact that Ohr reported his conversations with Steele to the FBI undermines the claim that he was a partisan.

Cramer also pointed out that Nunes, in making the argument that the FBI and the DOJ omitted critical information when applying for a FISA warrant to surveil Page, appeared himself to leave important information out of the memo.

In particular, Cramer dismissed the memo’s claim that senior FBI official Bill Priestap said the dossier’s corroboration was in its “infancy” at the time of the first FISA application targeting Page. “It neglects to note that Carter Page was on the FBI’s radar going back to 2013 or 2014 with respect to foreign agent relationships,” he said. “That is a HUGE omission.”

James comey
Former FBI Director James Comey testifies on Capitol Hill. Drew Angerer/Getty Images

‘Politics of hysteria’

Experts also highlighted a paragraph in the beginning of the memo as proof that the nation’s top law enforcement and intelligence officials took the necessary steps to ensure proper protocol was followed when it came to targeting US citizens for surveillance:

“The FBI and DOJ obtained one initial FISA warrant targeting Carter Page and three FISA renewals from the FISC. As required by statute (50 USC 1805(d)(1)), a FISA order on an American citizen must be renewed by the FISC every 90 days and each renewal requires a separate finding of probable cause. Then-Director James Comey signed three FISA applications in question on behalf of the FBI, and Deputy Director Andrew McCabe signed one. Then-DAG Sally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one or more FISA applications on behalf of DOJ.”

“The information demonstrates that there were seven different instances when the FISA application had to be adjudicated, and each time it was renewed – and by five different people from multiple agencies,” said Carle, the former CIA operative. “And all of that is prior to the deliberations and decisions, seven times over, by the Foreign Intelligence Surveillance Court, which is yet another branch of the government.”

The information Nunes presented, he said, indicated that the DOJ and the FBI were following “the rule of law and correct procedure to the very last step.That’s the job. That’s what they did.”

Cramer largely agreed and pointed out that the “laundry list of people who have signed off on the various applications and renewals could be the attendance sheet at a Federalist Society meeting. These are all Republicans.”

Moreover, he added, “a quick glance will also show that except Boente (who left on his own) and [Rod Rosenstein] … the rest were fired or pushed out.”

Deitz, the former general counsel at the NSA, said of the memo, “You read this thing through and think about all the anticipation that went into its release and think, ‘What am I missing?'”

“The fact is, you’re not missing anything,” he said. “There’s nothing new in here, and more importantly, there’s nothing in here that indicates the FBI or the DOJ acted inappropriately or illegally.”

Jens David Ohlin, a vice dean at Cornell Law School and an expert on criminal law, echoed that point. “There’s a colossal mismatch between the claims in the introduction and the main text of the memo,” he said, “which fails to deliver on its promise to detail concerns that question the ‘legitimacy and legality’ of the DOJ and FBI and that constitute a ‘troubling breakdown’ of the legal process.”

“Nothing in the memo – regardless of whether it turns out to be true or a lie by omission – substantiates this politics of hysteria.”

Even so, it’s likely Trump and his allies will characterise the memo as proof that the two agencies are politically biased against the president and therefore require a change in top leadership.

Indeed, when asked Monday whether he still had confidence in Rosenstein after reading the memo, and whether he would fire the deputy attorney general, Trump replied: “You figure that one out.”

“Of course Trump will use the memo to say this is all a witch hunt,” Deitz said. “You throw dirt on the wall, some amount of it sticks.”

A White House official walked back Trump’s cryptic comment Friday night. The official said there had been no discussion or consideration about firing Rosenstein, Reuters and CNN reported.

Carle expressed a more sobering view.

“Anyone who’s thinking about what’s going on here at a deeper level will be alarmed by this memo and what it could mean,” he said. “We’re seeing the systematic undermining of our institutions of government and the functions of our democracy. This is a slow-motion push. This is Berlin in 1933. It’s really, really shocking.”