Republicans on the House Intelligence Committee released a memo on Friday that they contend undercuts the FBI’s investigation of Russian interference in the 2016 election.
The three-and-a-half-page memo, written by GOP congressional aides, faults the FBI for allegedly duping a federal judge into authorizing surveillance of Carter Page, a Trump campaign adviser, based on material paid for by the Hillary Clinton campaign and the Democratic National Committee (DNC).
The memo, which Republicans promoted via social media with a campaign of #releasethememo, asserts that by relying on information procured by a political operative who was hired by Democrats, the FBI revealed a bias against Trump or, at the very least, allowed itself to be manipulated by Democratic propaganda.
The campaign, of which the memo forms part, aims to discredit a probe by special counsel Robert Mueller, whom the deputy attorney general appointed to lead the investigation. It aims to persuade Americans who may otherwise be too busy earning a living or simply living their lives to investigate all the facts of an anti-Trump bias at the highest levels of the Justice Department.
But the memo tells only part of the story. The document, which was published at the behest of Rep. Devin Nunes, the Intelligence Committee chairman, cherry-picks information to reach a conclusion that the investigators are biased against the president. That has allowed the president, who may be a target of the Russia investigation, to assert that the memo “totally vindicates” him, , as he tweeted on Saturday. (As it happens, Trump also approved the release of the memo.)
Here are some of the main ways that the memo may mislead readers:
The Nunes memo contends that the government’s case for a warrant relied solely on a report written by a paid political operative.
According to the memo, a dossier compiled by Christopher Steele, a private investigator, on behalf of the DNC and Clinton campaign, “formed an essential part” of the FBI’s application for a warrant to subject Page to surveillance starting in October 2016. But the memo fails to note that the FBI interviewed Page in 2013, as part of an investigation into possible efforts by Russia to recruit him as a spy. That was the same year Page bragged about being an adviser to the Kremlin.
“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,” said Rep. Adam Schiff, the top Democrat on the House Intelligence Committee, in a statement released on Friday.
What’s more, the Justice Department, which applied for the warrant on behalf of the FBI, told the court that information gleaned from material compiled by a paid political operative formed part of the application, according to two U.S. officials with knowledge of the matter. So, contrary to the suggestion of the Nunes memo, DOJ did not mislead the court about the source of some of the information that informed its application for a warrant.
Note that the first researchers to investigate possible Trump ties to Russia were not hired by Hillary Clinton or a Democrat for that matter. They were paid by the Washington Free Beacon, a conservative website funded by Paul Singer, a hedge fund titan who backed a White House bid by Republican Senator Marco Rubio and who continued to fund efforts to block Trump from receiving the nomination even after Rubio dropped out of the race.
In May 2016, Rubio instructed Fusion GPS, the firm that later outsourced some of the work to Steele, to stop doing research on Trump after it became apparent that Trump would clinch the nomination. After Trump earned the nomination, Fusion was hired by the Clinton campaign and the DNC to gather information about Trump. Fusion GPS then hired Steele to investigate possible ties.
“The basis [for hiring Steele] was [Trump] made a number of trips to Russia and talked about doing a number of business deals but never did one, and that struck me as a little bit odd and calling for an explanation,” Glenn Simpson, a co-founder of Fusion GPS, told the Senate Judiciary Committee in August.
The memo contends that, without the information from Steele, the FBI would not have sought a warrant to eavesdrop on Page.
According to the Nunes memo, former FBI Deputy Director Andrew McCabe testified before the Intelligence Committee in December that no warrant would have been sought “without the Steele dossier information.”
The application for the warrant remains classified, so we cannot know what the government argued to the court. But Rep. Schiff has accused House Republicans of omitting from their memo what McCabe told the Intelligence Committee about the origins of the investigation.
Of course, as chairman of the committee, Nunes can order the release of McCabe’s testimony, so we all could know what he said. But Nunes has neither authorized release of the testimony nor suggested that he might do so.
The FBI allegedly abused its authority by applying to the FISA court to surveil a U.S. citizen.
The Foreign Intelligence Surveillance Act (FISA), signed into law in 1978, authorizes the government to eavesdrop on Americans who officials reasonably believe to “engage in clandestine intelligence activities in the United States contrary to the interests of the United States” on behalf of a foreign power.
To authorize such surveillance, a judge on the Foreign Intelligence Surveillance Court must agree there is reason to believe the target knowingly engaged in such activities or is knowingly aiding or conspiring with someone else who is doing so.
Steele maintained contact with Bruce Ohr, a senior DOJ lawyer whose wife worked for the firm that commissioned the Steele dossier.
The Nunes memo notes that Steele kept up contact with Bruce Ohr, who at the time served in a senior capacity at DOJ, where he advised both Sally Yates, the acting attorney general appointed by President Obama and later fired by President Trump, and Rod Rosenstein, the deputy attorney general, whom Trump appointed.
According to the memo, Steele stated to Ohr the former’s aim that Trump not be elected president – a bias that Ohr noted. At the same time, Ohr’s wife worked for Fusion GPS, which, as noted, commissioned the Steele dossier. The Nunes memo charges that the Ohrs’ relationships with both Steele and Fusion GPS were omitted from the application for a FISA warrant.
But as the Times has reported, there is no evidence that’s been made public that suggests Ohr, who handles narcotics investigations, played any role in the application for the warrant. As Josh Gerstein, who covers the White House for Politico notes, “the fact that Ohr reported Steele’s comments – that he was intent on preventing Trump from becoming president – to the FBI undercuts the notion that Ohr was a raging partisan.”
Here again, if Nunes has information that undermines that reporting or suggests that Ohr did, in fact, bias the application against Trump, he alone has the authority to release it.
The Nunes memo charges that the government relied in its application for a warrant on an article published in Yahoo News that was sourced from Steele himself.
According to House Republicans, the article, which the government cited in its application for a warrant, does not corroborate the Steele dossier because the reporting that informed the article was leaked from Steele himself.
But as David Kris, a FISA expert who led DOJ’s national security division for two years ending in 2011, told the Washington Post, it’s more likely the government cited the article “to show that the investigation had become public and that the target [Page] therefore might take steps to destroy evidence or cover his tracks.”
Rep. Schiff called the Republicans’ citing portrayal of the Yahoo News article “a serious mischaracterization.”
The FISA warrant was based on information that could not be verified.
By law, applications to the FISA court are secret in order to protect national security information. Thus, we cannot know what information the government’s application to eavesdrop on Steele contained. But as Charlie Savage has explained in the Times:
“According to several former officials, a typical application ranges from 30 to 100 pages and centers on a factual affidavit by a senior F.B.I. agent working on the investigation at headquarters, which in turn compiles information submitted by other agents in the field. This document primarily explains what evidence the bureau has gathered to establish that a target is probably a foreign agent.
A typical application would also include a legal memorandum by a career Justice Department intelligence lawyer; a certification explaining the purpose and necessity of the requested surveillance and signed by the F.B.I. director; and approval for the broader package signed by a senior, Senate-confirmed Justice Department official — the attorney general, the deputy attorney general or the head of the National Security Division.
Occasionally the package may be supplemented with other materials. For example, it may include a news article to show that an investigation has become public knowledge, which could make it more likely that a target is taking steps to conceal his activities.”
Though the application remains classified, there is no evidence to suggest that the government could have hoped to persuade the court to issue a warrant based on evidence that lacked a reasonable basis. The 11 judges who sit on the FISA court are federal district court judges who are designated by the Chief Justice of the United States.
The government claimed, without basis, a connection between Page and Trump campaign adviser George Papadopoulos.
According to the Nunes memo, the application for a warrant to surveil Page mentions information regarding George Papadopoulos, a foreign policy adviser to the Trump campaign who in October pleaded guilty to lying to federal investigators about his relationship with a professor who claimed to have connections with senior officials in the Russian government who had “dirt” on Hillary Clinton in the form of thousands of emails.
The Nunes memo criticizes DOJ for including Papadopoulos in its application for a warrant, noting “there is no evidence of any cooperation or conspiracy between Page and Papadopoulos.” But, as Rep. Schiff noted on Friday, that misstates why the FBI included the information about Papadopoulos in the warrant application.
“The DOJ appropriately provided the court with a comprehensive explanation of Russia’s election interference, including evidence that Russian agents courted another Trump campaign foreign policy adviser, George Papadopoulos,” Schiff noted. As we know from the guilty plea by Papadopoulos, he relayed those efforts to senior officials in the Trump campaign.
Senior DOJ officials renewed the warrant application on at least three occasions even though they knew the Steele dossier lacked credibility.
The Nunes memo says that Yates, McCabe and James Comey, the former FBI director, applied on three occasions to renew the warrant to eavesdrop on Page despite questions about the validity of the Steele dossier. That, suggests House Republicans, shows anti-Trump bias among senior DOJ officials.
But the assertion overlooks a reality of the process for renewing a FISA warrant, which is that every 90 days, the government must show the court that agents are obtaining information through the warrant that is consistent with the original application and that justifies a renewal. In short, the court expects a progress report each time the government asks it to renew the warrant. After the initial grant of the warrant, the basis for extending it cannot be hypothetical.
What’s more, Rosenstein, a Trump appointee, and Dana Boente, who served as acting attorney general after Trump fired Yates, also reviewed the information and signed off on the submissions to the FISA court.
Either DOJ misled the FISA court, or the court knew the alleged shortcomings in the evidence and approved the warrant anyway.
As the information above suggests, there is little to suggest that the government somehow persuaded the court into granting a warrant on the basis of the Steele dossier alone. Might the judge who granted the warrant have done so based on a misreading of the evidence or a desire to pursue a partisan investigation of the Trump administration?
Two realities suggest otherwise. First, the process for obtaining a FISA warrant is far more onerous than the Nunes memo suggests. As outlined above, the court issues a warrant based on a submission that includes an affidavit – a statement under oath – of one or more FBI agents. “We didn’t put in every fact, but we put in enough facts to allow the court to judge bias and motive and credibility of the sourcing,” Matthew Olsen, former deputy assistant attorney general for national security who oversaw the Justice Department’s FISA program from 2006 to 2009, told the Washington Post.
And were a judge to issue a warrant that lacked a reasonable basis, you can be sure the defendant in any prosecution that ensued would seek to suppress the evidence, as criminal defendants do whenever they have reason to think that the government obtained evidence illegally or without probable cause.
***
The Nunes memo gets something else wrong. Even if the FBI relied in part on information prepared by a political operative, the decision by the FISA court whether to issue a warrant depends on whether the government demonstrated a reasonable basis for concluding that Page might have knowingly conspired with a foreign government.
All of the information that might lead investigators to conclude that was the case, becomes relevant in that context. Of course, both the investigators and the court have an obligation to assess the credibility of the information. That matters more than its source.
As chairman of the Intelligence Committee, Devin Nunes can release the testimony of McCabe along with any other information that he thinks would bolster his party’s assertion that the government has engaged in a partisan effort to discredit the president. So far, all we have is a memo that disregards the totality of information that constitutes the public record.