A Q&A on the Nunes Memo and Its Implications for the Russia Investigation

With President Donald Trump’s blessing in hand, House Republicans released a memo Friday, spearheaded by Rep. Devin Nunes (R-Calif.), that accused senior Justice Department officials of not following proper protocols when seeking permission to spy on former Trump campaign adviser Carter Page. The memo also insinuates that a bias against Trump may have been a motivating factor for some of the people involved in the investigation.

The FBI, senior officials of the Justice Department, Senate Republicans and Nunes’ Democratic counterpart on the House Intelligence Committee, Rep. Adam Schiff (D-Calif.), all warned against releasing the memo, saying it painted an incomplete and misleading picture of the underlying intelligence that supported the FISA warrant application for Page. Meanwhile, the president has reportedly been telling his friends that the memo “would expose bias within the FBI’s top ranks and make it easier for him to argue the Russia investigations are prejudiced against him.”

So, what exactly does the memo claim? Is it a “dud”? Or is it an effective disinformation tool that could help Trump unravel the investigation into his presidential campaign and its possible ties to Russian interference in the 2016 election?

To make sense of it all, I turned to some of Just Security’s expert editors and contributors to get their views. Here’s what they had to say. 

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1. What’s your big takeaway after reading the memo?

Julian Sanchez: There are some some legitimately criticizable missteps here: The Foreign Intelligence Surveillance Court (FISC) should have been informed that Steele’s research was underwritten by the Democratic National Committee; a news article was erroneously cited as an independent source of information, which it later became apparent was also based on Steele’s claims. But that’s not in itself anywhere near a “worse than Watergate” scandal unless we assume a lot of additional facts that aren’t in evidence. Instead, the memo seems designed to insinuate the facts that would elevate this from a catalogue of modest misjudgments to a narrative of serious abuse. It implies that the application relied critically on unverified facts, but doesn’t actually say it in so many words. It reads, to be blunt, like a document intended to create the appearance of a scandal in the eyes of someone who isn’t parsing it closely.    

Barbara McQuade: Although it is extremely misleading, the memo is not terribly significant to the Mueller investigation. It relates to a FISA warrant that was obtained in October 2016, after the investigation had already begun in July, and relates only to one subject, Carter Page. To suggest that this somehow taints the entire investigation is just wrong.

John Sipher: My first impression was that it was underwhelming. For all the hoopla and high-level attention, it was a pretty lame effort by Nunes and those trying to discredit the investigation. Like so many of the attacks and smear efforts against Christopher Steele and his dossier, the Nunes memo carefully avoids anything related to the actual content of the report.  Unlike a professional investigator, he purposely avoids anything that might undercut his pre-cooked conclusion, and focuses exclusively on the aspects that best supports his case.  However, even his best argument is not very strong. Just like when the FBI gets reporting of a possible terrorist attack, their responsibility is to check it out. In this case, it would have been professionally irresponsible if the FBI did not follow up on this damning and explosive counterintelligence information, even if they were not 100 percent certain of the source’s reasons for passing on the lead.

Michael German: If this is the best argument the White House and House Republicans have to discredit the Special Counsel investigation they are in serious trouble. It isn’t very clear what their argument is. If it is just that Steele was biased against Trump, I’m not sure what that has to do with Page, because Page was no longer with the campaign and was not on the White House staff. But the memo ignores other important realities. Most informants providing information to the FBI do it because they don’t like the people they are informing on, or at least don’t like what they are doing. Also, informants can be wrong on certain details without making everything they say false. Moreover, the memo seems to suggest the FBI officials submitting the affidavit knew everything we now know today at the time they submitted the application, which of course is not likely to be true. It has to be evaluated based on what was known or not known at the time.There is little in the memo that hasn’t been discussed publicly, so it is hard to understand why it needed to remain classified. I think Wray’s interest in keeping this memo secret was more about preserving the FBI’s ability to deny FISA affidavits to defendants in court cases. If parts of FISA affidavits can be released publicly for political purposes I think judges might be more open to letting defendants challenge them when their liberty is on the line as well.

2. What is a key piece of information we need to have to be able assess the memo’s claims that we don’t have?

Sanchez: In general, what’s lacking isn’t any particular “piece” of information, but rather the whole context in which information from Steele was used. What specific claims from Steele were relied on to make the case, and were those specific claims independently corroborated?  What other evidence was invoked?

McQuade: We would need to see the entire FISA application to assess the importance of the dossier in the finding of probable cause. Was the dossier the sole basis?  It seems likely that additional evidence was used to establish probable cause. Of course, that document is classified and FBI’s hands are tied from releasing it.

Sipher: We need the same information that Nunes needs (and should have waited for before going public). We have no information about what other information was in the applications for the warrant.

German: Obviously the whole affidavit, not cherry-picked facts, is what the FISC relied on, so it would be impossible to determine whether the probable cause determination was justified without seeing it all. I don’t think at this point, just based on the process in which it was produced and released, anyone should believe the memo is a fair rendering of even the purported “facts” it presents.

3. By releasing the memo, which, as the FBI describes, has “material omissions of fact that fundamentally impact the memo’s accuracy,” what potential damage has the House Intelligence Committee done? What are the repercussions?

Sanchez: A year ago I would have said it’d probably be healthy if the relationship between the IC and its oversight committees were *somewhat* less cozy, but it’s hard to see how this doesn’t fundamentally damage the trust between them. The Justice Department and FBI were pretty reluctant to hand over sensitive material relevant to an ongoing investigation, and to then see it mined for items to attack the Bureau in a way they clearly regard as misleading and unfair would, obviously, tend to confirm their initial reluctance. Needless to say, you don’t want it to be an exercise in pulling teeth whenever House Permanent Select Committee on Intelligence (HPSCI) needs sensitive material to conduct its oversight responsibilities. If the agencies aren’t just worried about genuine errors being exposed, but about material being politically repurposes this way, the overseers jobs are predictably going to get a lot harder.

McQuade: The committee has harmed public confidence in the FBI and the FISA process. It may also have harmed Mueller’s investigation by disclosing facts that were previously unknown to the public.

German: I think this episode has done tremendous damage to the credibility of the Intelligence Committee. When Congress created the congressional intelligence committees, as a result of the Senate’s 1975 Church investigation of intelligence abuses, it took steps to ensure the committees would not be partisan. I think this release puts a dagger into that notion, which will make it harder for the agencies to share information with them in the future, and harder for the public to accept that they are looking out for our interests rather than their own.

Jennifer DaskalWe need to learn more details. But it would be highly concerning if in fact the FBI is correct and the memo omits key facts that undermine the memo’s credibility. FISA is an incredibly powerful – and incredibly important – tool that authorizes the gathering of foreign intelligence evidence regarding U.S. citizens and residents pursuant to a court-issued warrant based on probable cause, albeit in situations that are shrouded in secrecy.  Its continued vitality depends in significant part on faith that those entrusted to exercise this extraordinary authority do so with ultimate commitment to uncovering truth and abiding by the rule of law.

There is of course always risk of abuse – a risk we should all be aware of and guard against.  But an allegation of abuse, in the absence of actual abuse, or even more concerning in a one-sided representation of the facts for purposes of partisan gain, would constitute a dangerous, short-sighted attack on a critically valuable national security tool, in ways that could undercut our national security over the long term.

4. What do you make of the allegations of bias in the memo? Are any of them concerning?

Sanchez: There’s an effort to imply that Steele harbored some preexisting ideological bias against Trump. Which may well be the case, but the main evidence for this is that Steele expressed a view that it was urgent Trump not become president…which would be a pretty natural thing to say if he believed his sources to be telling the truth about Russia’s involvement.

McQuade: Ordinarily, information relating to a source’s potential biases should be disclosed in an application so that a judge can weigh the allegations appropriately, but there is no allegation that the substance of the allegations are false. To suppress the fruits of a warrant, under Franks v. Delaware, a defendant must show that false statements were made knowingly or recklessly and that there was insufficient independent evidence to establish probable cause. This allegation of bias falls far short of that standard.

Sipher: I find the allegations that Steele was biased against Trump amusing. First, all sources (as all people) have biases. Professional intelligence officers simply take these biases into account — just like they assess a source’s reliability, access, motivations, experience, expertise and perspective. More importantly, is bias the right word? Mr. Steele collected information from sources he trusted that indicated the Trump campaign might be involved in a criminal conspiracy with Russian President Vladimir Putin. His statement that he didn’t want Trump to become president seems more like that of a concerned professional who is worried about what he has learned, than “bias”. Frankly, I’d be biased too if my sources were telling me what they told him.  

5. The memo states, “The FBI and DOJ obtained one initial FISA warrant targeting Carter Page and three FISA renewals from the FISC.” What’s the significance of the three renewals? Would the investigators need to show that the first FISA warrant was producing useful intelligence? Would those renewals depend more on the intelligence being collected vs. the original application?

Sanchez: A lot would depend on the specifics of the case, but FISC would almost certainly expect to see the initial three months of surveillance bearing some sort of fruit, though given the ambiguity of much foreign intelligence, they wouldn’t necessarily demand a smoking gun. Trained intelligence agents do not usually say “let’s discuss the crimes we’re going to do” over the phone, but it seems unlikely they’d have reauthorized wiretaps three separate times if they weren’t seeing anything that provided grounds for suspicion.

McQuade: To obtain a renewal, FBI would need to show that the surveillance was fruitful, so we can infer that it produced valuable foreign intelligence information.

Sipher: As you have reported before, it is no easy feat to acquire a FISA renewal. The government has to show that its investigation is bearing fruit, and make a case to the judge that further investigation is warranted.  The fact that Page’s FISA was renewed three times seems to suggest that the government had additional information. It seems to weaken Nunes’ case.

Daskal: In order to obtain the initial FISA warrant, and in order to get each renewal, an independent Article III judge on the FISC needs to determine that there was probable cause to believe that Page was an agent of a foreign power – apparently meaning in this case that Page knowingly engaged in clandestine intelligence gathering activities for or on behalf of Russia, or aided or conspired with others who were doing so.

Presumably, the renewals would not have been granted unless there was evidence, likely obtained as a result of information gleaned from the earlier orders, that in fact there were grounds to believe that Page met this standard and in fact conspired, aided, or himself engaged in clandestine intelligence activities on behalf of Russia.

6. The memo says, the “Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff.” In what way are journalistic sources used in FISA apps?

Sanchez: There’s no reason “open source” intelligence is less valid than secret intelligence. All sorts of facts might be most readily confirmed by public reporting. The problem in this case isn’t that they relied on a news report, but that Steele was himself the source for that report, which could give the appearance of independent confirmation to facts that were really just the same source cited twice.

German: Yes, news articles, academic publications, almost anything you can imagine that provides the judge a clearer picture of the totality of the facts and circumstances can be used to bolster probable cause. Obviously, a judge knows that a newspaper allegation is not necessarily proof of anything, but may be enlightening nonetheless.

7. Does the FBI define as “the most serious of violations” an unauthorized disclosure to the media of one’s relationship with the FBI, as the memo claims?

German: Obviously, you can’t be a confidential source if you are not confidential. It is a breach of the agreement a confidential source makes with the FBI, which the bureau takes seriously, but it doesn’t go to whether the information they provided is true. If someone that is formally closed as a confidential source for talking to the press walks in the door tomorrow with information, the FBI will of course accept it. The key is whether the information can be validated, not whether the person who gave it to you is a saint. Very few informants are saints.

Sipher: This is where I have the biggest problems. Nunes is either confused about what it means to be a “source,” or is seeking to confuse others. First, we do not run British citizens as intelligence sources. To be an intelligence source suggests clandestine handling and that the person is under some sort of institutional control by the United States. If Steele were truly a source, the British government has every right to be outraged at us. Also, if he were really a source, it would be devastating to our ability to recruit new sources if members of Congress could unilaterally “out” a source.

8. What are we to make of this statement? “Deputy Director McCabe testified before the Committee in December 2017 that po surveillance warrant would have been sought from the FISC without the Steele dossier information.”

Sanchez: This is an interesting but ambiguous claim. If we read McCabe to mean that, at the time they applied for a FISA order, there wasn’t substantial evidence other than the dossier to support the application, that would be pretty significant: If they’re hanging everything on that dossier, then the failure to make full disclosure about its funding becomes a bigger problem. If we read him instead as saying that they wouldn’t have turned their attention back to Page but for the dossier, that’s not nearly as big a deal. But it seems telling that they’re grounding this on McCabe’s statement, which can be interpreted either way, rather than directly asserting that FBI found nothing else to support targeting Page based on the contents of the application.

McQuade: That makes it sound like the dossier was essential to probable cause. Special Counsel Robert Mueller can avoid any problems by simply saying he will not use any evidence obtained from the warrant.

9. The memo states, “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.” So what? Why is the memo insinuating that you need “evidence of any cooperation or conspiracy between Page and Papadopoulos” if you’re going to include information about Papadopoulos in the Page FISA application?

Sanchez: This part seems as though it’s intended to rebut the New York Times report that it was the Australian tip about Papadopoulos, rather than the Steele dossier, that sparked the inquiry into possible collusion with Russia. The implication, it appears, is that whatever grounds they had for looking at Papadopoulos, it didn’t justify surveillance of Page. It’s hard to know what to make of this without knowing exactly why Papadopoulos was mentioned. If the point was just to establish a pattern of Russian assets reaching out to people associated with the Trump campaign, that would be reasonable, as long as it didn’t turn into an attempt to imply guilt by association.

McQuade: This seems to be an attempt to minimize what appears to be additional evidence forming the basis for the probable cause. The absence of evidence of a conspiracy between them does not seem relevant.

Sipher: This seems to be a silly argument.

 

Image: Alex Wong/Getty Images

 

About the Author(s)

Kate Brannen

Deputy Managing Editor of Just Security Nonresident Senior Fellow at the Brent Scowcroft Center on International Security at the Atlantic Council former Senior Reporter covering the Pentagon for Foreign Policy Follow her on Twitter (@K8brannen).