The Nunes Memo: Watergate, It Ain’t

After weeks of frenzied hype — stirred by Republican politicians, Fox News and Russian bots — “The Memo” has finally dropped. 

Here’s what you need to know:
The four-page document was written by the staff of Republican House Intelligence Committee Chair Devin Nunes – who previously served on the presidential transition team of Donald Trump, and whose alleged misconduct later forced his recusal from the Trump/Russia investigation. The declassification and release of the partisan memo was opposed by the FBI and many top Republicans, but cleared by the Trump White House on Friday.

Far from explosive – “bigger than Watergate” according to numerous GOP politicians – the hotly anticipated memo is a reed-thin whinge.

The memo cries foul that a foreign intelligence surveillance court issued and renewed warrants to surveil Trump aide Carter Page based on incomplete information. Page, you recall, was a Trump adviser who maintained frequent, dodgy back-channel contacts with Russian officials.

The federal surveillance warrants were obtained, in part, using information provided to the FBI by Christopher Steele — author of the infamous Steele dossier. But the federal law enforcement officials, the memo alleges, did not disclose to the court that Steele’s intelligence gathering was directed by an opposition research firm funded by Democrats. It also alleges the FBI sat on information that Steele was not a Trump fan. In boldface, the memo characterizes Steele as telling an FBI official that he “was desperate that Donald Trump not get elected and was passionate about him not being president.”

In short, the Nunes memo claims the FBI and Justice Department cut corners and deprived the intelligence court of “material and relevant” facts: “While the FISA application relied on Steele’s past record of credible reporting on other unrelated matters,” the memo reads, “it ignored or concealed his anti-Trump financial and ideological motivations.”

There’s more hand waving, but that’s basically it. That’s the memo.

“That’s it?” tweeted James Comey, the FBI director fired by Trump. Comey continued his tweet arguing that the “dishonest and misleading memo” had “wrecked the House intel committee, destroyed trust with Intelligence Community, damaged relationship with FISA court, and inexcusably exposed classified investigation of an American citizen. For what?”

Does any of this matter?
As a legal matter, probably not. Federal courts routinely rely on informants whose bias is not disclosed. The courts understand that informants are rarely disinterested parties, writes Orin Kerr, a law professor at USC who previously clerked for Supreme Court Justice Anthony Kennedy. “When federal judges have faced similar claims” of undisclosed bias, Kerr adds, “they have mostly rejected them out of hand.”

A bigger question is: How much of a role did Steele’s information play in establishing probable cause to surveil Page? In these cases, the government rarely relies on a single source of intelligence. Indeed, the FBI had reportedly probed Page’s Russia ties back in 2013, long before Trump ran for office. The partisan, cherry-picked nature of the Nunes memo should be a cause for distrust. The full nature of what the FISC was presented remains classified. Republicans have blocked release of a Democratic memo that could fill in the blanks.

Furthermore, the Nunes memo also undercuts a key claim made by Trump partisans: that the Steele dossier is the only reason Trump is under investigation. The Nunes memo confirms this is not true. It reveals that the FBI began its counterintelligence investigation independently, based on information it received in July 2016 about another Trump aide who back-channeled with Russians, George Papadopoulos, who has since pleaded guilty to lying to the FBI.

Why you should care:
The most concerning aspect of the memo is that it may be used as a weapon by Trump against Rod Rosenstein, the Deputy Attorney General who appointed special counsel Robert Mueller to lead the investigation into Russian meddling in the 2016 election.

The memo points fingers at a laundry list of FBI and Justice officials who have been forced out of their jobs in the first year of the Trump administration. It alleges that these officials knew of the undisclosed partisanship associated with Steele, but still signed applications for surveillance warrants against Page. They include former FBI director Comey (fired by Trump); former Deputy FBI Director Andrew McCabe (forced out by Trump); former Deputy Attorney General Sally Yates (fired by Trump); as well as Rosenstein.

Firing Rosenstein and replacing him with a Trump loyalist could be a dangerous prelude to sacking Mueller himself. Asked whether he had confidence in Rosenstein in the wake of the Nunes memo, Trump told reporters, “You figure that one out.”