Nunes Memo } What Is It and Why FBI Opposes The Declassification and Release?
Q: How Did some members of Congress got hold of a classified FISA application on the investigation of the FBI which caused Nunez to write this memo. He didn't release the memo because it needed to be unclassified and since the FBI would not do declassifiy it, to Trump it came to Unclassifiy it if he was going to release which he says he will .
Nunes “seemed to go out of his way to defend Trump,” the Washington Post’s Aaron Blake wrote, “in a way few others did.”
Perhaps the clearest example arose after Trump tweeted in March that President Obama had “wiretapped” Trump Tower during the 2016 presidential campaign. The heads of both the NSA and the FBI categorically denied that any such wiretapping had occurred. But Nunes quickly came to Trump’s defense, holding a press conference to announce that “the intelligence community incidentally collected information about US citizens involved in the Trump transition.”
What this actually meant is that some Trump transition personnel had been in contact with foreigners legally under surveillance, and their conversations were intercepted as part of that surveillance (that’s what “incidentally collected” means). This, needless to say, did not vindicate Trump’s claim that the Obama administration was spying on his campaign headquarters.
However, the timing of Nunes’s press conference and the confusing way in which Nunes presented the information made it seem like he was trying to provide cover for Trump. The president himself said Nunes’s revelation “somewhat” vindicated his tweets.
Then it turned out that Nunes got his information from the Trump White House itself. Ezra Cohen-Watnick, the National Security Council’s senior director for intelligence, uncovered the information; Michael Ellis, a White House attorney who worked for Nunes prior to the Trump administration, personally took it to Nunes.
To recap: Nunes released information in such a manner as to make it look like Trump’s claims of being persecuted by law enforcement were true — and did so after secretly getting the information from the Trump White House. The situation proved to be such an embarrassment that Nunes was forced to recuse himself from the intelligence committee’s investigation into Russia for eight months during a House ethics investigation into his conduct.
So when news broke in mid-January that Nunes had been working in secret to prepare a memo on FBI surveillance of the Trump campaign, the initial sense among intelligence experts was that it would be a repeat of the wiretapping debacle — Nunes misrepresenting intelligence to support President Trump’s political position.
But many of Nunes’s colleagues in the House saw it as damning proof of anti-Trump animus at the FBI. They started a public campaign, backed by conservative media, to #ReleaseTheMemo. This culminated in Monday’s vote by the intelligence committee, along party lines, to begin the process for formally releasing it.
2) What does the Nunes memo allege?
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The full contents of the memo obviously aren’t public yet. But several officials familiar with its contents told the New York Times that it focuses on surveillance of Carter Page, a Trump campaign foreign policy adviser with business ties to Russia and open sympathieswith the Kremlin’s foreign policy. The key allegation, according to the Times and other outlets, is that the surveillance of Page was improperly authorized — and potentially politically motivated.
In July 2016, while advising the Trump campaign, Page flew to Moscow and met with Russian officials. This raised eyebrows among US intelligence officers, to say the least. So the FBI and DOJ put together an application to a Foreign Intelligence Surveillance Act (FISA) court — a court that approves surveillance warrants pertaining to national security and foreign intelligence — to start watching Page. The court granted the application.
The Nunes memo reportedly alleges that this surveillance was not properly vetted by the court; specifically, that it relied on the now-infamous Steele dossier, the document prepared by former British spy Christopher Steele alleging the existence of a conspiracy between Donald Trump and the Russian government.
“The memo’s primary contention,” the Times writes, “is that FBI and Justice Department officials failed to adequately explain to an intelligence court judge in initially seeking a warrant for surveillance of Mr. Page that they were relying in part on research by [Steele].”
Steele’s research was, partially and indirectly, financed by the Clinton campaign — which the memo alleges is a major problem. Not only did the FBI spy on a Trump adviser on the basis of partisan opposition research, the argument goes, but they weren’t fully honest with a judge about doing so.
There are lots of problems with the memo’s alleged line of reasoning. For one thing, Steele is a respected investigator, and some of his dossier’s less explosive allegations have so far proven to be true. The FBI’s surveillance application may have relied on Steele’s findings, but if that’s true, it doesn’t necessarily discredit the application.
For another thing, the memo’s claims are impossible to evaluate without seeing the underlying intelligence it was based on. Nunes could have highlighted the FBI’s citation of Steele without mentioning other, more concrete sources the agency listed.
“The memo won’t actually answer the underlying question, which is whether there was sufficient independent evidence to support the underlying FISA application,” Steve Vladeck, a law professor at the University of Texas, said. “Only the application materials can conclusively shed a light on that.”
Finally, the idea that FBI agents would act in such a way — and a FISA judge would let them — strikes a lot of legal observers as absurd. The FISA process certainly can and has been abused — that’s something civil libertarians have been warning about for a long time.
But this particular method of abuse would require an implausibly vast conspiracy, for reasons former FBI special agent and current Yale Law professor Asha Rangappa lays out in a detailed post on FISA procedures at Just Security:
So if the Times’s description of the memo’s “primary contention” is accurate, then there are good reasons to be skeptical of it even beyond Nunes’s personal history of misusing intelligence.
3) Does the Nunes memo implicate anyone important?
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There’s a second part to the memo, according to the Times report, focusing on the reauthorization of surveillance of Page in 2016. This part is vital because it directly implicates Deputy Attorney General Rod Rosenstein — the man currently supervising special counsel Robert Mueller’s Russia investigation.
In late spring of 2017, the FBI petitioned to renew its surveillance warrant on Page. According to the Times, the memo claims Rosenstein personally signed off on the renewal application.
The reason this matters, the Times writes, is that “Republicans could potentially use Mr. Rosenstein’s decision to approve the renewal to suggest that he failed to properly vet a highly sensitive application for a warrant to spy on Mr. Page.” But it’s actually deeper than that.
The memo already seems to imply that the Russia investigation is a corrupt partisan hatchet job. By bringing Rosenstein into it, it also ends up indicting the guy currently in charge of the Russia investigation — suggesting he’s at best incompetent and at worst corrupt. Theoretically, this would be cause for Trump to dismiss Rosenstein.
Trump currently can’t fire Mueller without Rosenstein’s say-so; Rosenstein said in December that there is no “good cause” to fire Mueller. If he were to fire Rosenstein based on the memo, he might be able to get to Rosenstein.
4) Why do House Republicans want to release it so much?
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Ostensibly, Republicans in the House have been pushing to release the memo because they believe it outlines surveillance abuses the American people need to know about.
“Let’s have a great debate about its consequences and the opportunity it presents to make things better, so these things never happen again,” Rep. Matt Gaetz (R-FL) said in a January 30 speech on the House floor.
But experts on the FISA system, even civil libertarians critical of the way law enforcement uses it, are skeptical. They note that these Republicans aren’t proposing any changes to how FISA works, or even suggesting that the system in general needs reform to stop any future abuses.
“There’s a conspicuous lack of interest in drawing any policy conclusions from what they purportedly consider a major institutional scandal,” Julian Sanchez, an expert in privacy law at the libertarian Cato Institute, said.
Instead, the motivation seems purely political. Many of the most vigorous supporters of #ReleaseTheMemo, like Gaetz, have also called on President Trump to fire Robert Mueller. “I think the president should’ve fired Mueller long ago,” Gaetz said in a December interview with Vox.
These are people who seem to either genuinely believe that the Russia investigation is a partisan witch hunt targeting the president or believe there’s some political advantage to be gained from championing an anti-FBI crusade near and dear to both the president’s and Fox News’s heart.
Either way, experts say the motivation behind the memo’s release seems pretty clear — it’s a way of waging war on the Russia investigation specifically and the FBI in general.
“The release of the memo and the fabrication of a set of ideas around the memo empowers Trump to go after the FBI,” Ryan Goodman, a former Defense Department special counsel and current editor of Just Security, said. “The ultimate goal is undermining the Mueller investigation. There doesn’t seem to be another reason for the president to be so obsessed with Rod Rosenstein and to be gunning for him.”
5) Why do the FBI and Democrats oppose it?
The FBI and Democrats don’t like the Nunes memo for one big reason: They think it’s full of lies.
On Wednesday, the FBI put out a strongly worded statement signaling the agency’s worry with the memo’s accuracy:
Rep. Adam Schiff (D-CA), the top Democrat on the House Select Intelligence Committee, said after the statement that he sided with the FBI. “I think the FBI is exactly right. I have the same grave concerns over it.” He added that he knew of the FBI’s concerns before he voted against the memo’s release.
Schiff and his fellow Democrats on the committee also went the extra step of compiling a 10-page memo of their own. It reportedly asserts two things. First, that the FBI didn’t abuse its FISA power when requesting the Page warrant. Second, and more importantly, that the Nunes memo is simply an effort to help the White House discredit the Mueller probe.
On Monday, Rep. Mike Quigley (D-IL) asked Nunes if his staffers worked with the White House on his memo. Nunes originally answered the question by saying “as far as I know,” no one collaborated with the White House. Ultimately, though, he refused to answer the question — perhaps suggesting that there may actually have been some collusion there.
The House Intelligence Committee, however, voted not to make the Democratic memo public. But late on Wednesday, Schiff tried another gambit — arguing that Nunes “substantively” altered the memo in between voting to release it and sending it to Trump and that the altered memo would require another House vote. It’s too early yet to tell if this argument will fly.
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