The Nunes memo

Devin Nunes's memo has been released today with the approval of the White House.  Here are my thoughts about the memo as a document and its significance.  I predict that it will inaugurate a constitutional crisis that may well leave us with an Administration immune from investigation into its ties with a foreign power.

The premise of the memorandum is that the FBI obstained a series of FISA warrants to listen in on the communications of Carter Page, a somewhat mysterious figure who became part of the Trump campaign during 2016, in late 2016.  The memo asserts that the FBI should have told the FISA court that it's request was based on the "Steele dossier" compiled by Christopher Steele (originally at the behest of other Republican candidates, although Nunes naturally leaves that out, but later for the Clinton campaign).  It says that Steele confessed his "bias" against Donald Trump during the campaign, and claims that the FBI paid him for his information as well.  It also says that the FBI terminated its relationship with Steele, whom it had regarded as a trusted source, because of his statements to media outlets during the campaign.

The problem--which is undoubtedly what has enraged the Democratic minority of the House Intelligence Committee, the FBI, and the Justice Department--is that the memo presents no evidence for any of this at all.  It does not tell us what exactly from the Steele dossier was used to craft the FISA application.  It does not make clear how such information (if there really was any) was corroborated by other information known to the FBI from other sources.  It is entirely  possible, based on the memo, that the Bureau wasn't relying on information from the Steele dossier at all.  I suspect that will emerge in leaks from the Democratic minority and the FBI in the next few days, but it will never catch up with the original story.

The whole theory of evidence that the memo is relying on, however, belongs on Fox News or in a speech by the late Senator Joseph McCarthy, not in a document issued by a House committee.   The premise seems to be that since Michael Steele was being paid by the Clinton campaign and did not want Donald Trump to become President of the United States, the FBI had an obligation to disregard anything he said, rather than to act on it.  It does not occur to the authors of the memo (on which more later) that a person might become very concerned about the election of a certain person as President because one had received credible information to the effect that that person and his campaign were closely connected to a hostile foreign power.   The memo, in short, is presuming that President Trump and his campaign must be innocent, and that therefore anyone who claims otherwise must be guilty of partisan opposition to him.  And that is why I believe, although I cannot prove it, that the ultimate source of the memo is Donald Trump and people very close to him.

There is another layer to the way in which the memo is presented. Because it omits any specific information at all about the warrant or its content, it does not include any classified information.  But if Adam Schiff, the ranking Democrat on the Committee, were to release information refuting the claims and logic of the memo, he probably would be guilty of releasing classified information.  By relying on asserting, rather than demonstrating, its key argument--that the application for the warrant was based on the Steele dossier--the memo makes it harder for anyone to disprove it.

The memo has to be seen in the context of an incident ten months ago involving Nunes, the White House, and the very same investigation, which was described again this week in the New York Times.

"Then, in March, as the investigations into Russian meddling in the 2016 election appeared to be picking up momentum, Mr. Nunes set off a bizarre Washington drama when he made a late-night dash to the White House, and followed up with a morning news conference in which he claimed that he had been given intelligence reports that Mr. Trump and his associates were incidentally swept up in foreign surveillance by American spy agencies during the campaign.

"Furthermore, Mr. Nunes charged, the identities of the Mr. Trump and his associates swept up by the surveillance, which are supposed to be “masked” in intelligence reports, had been unlawfully revealed in classified reports at the order of senior Obama administration officials.

"It turned out that the intelligence cited by Mr. Nunes was given to him by a pair of senior officials at the Trump White House, and that it had selectively cited certain incidents to show wrongdoing where none may have existed. Senator Lindsey Graham, Republican of South Carolina, declared that Mr. Nunes was running an “Inspector Clouseau investigation.”

"The incident prompted an ethics investigation and forced Mr. Nunes to recuse himself from the committee’s Russia investigation, a move that Representative Peter T. King, Republican of New York and a committee member, said almost certainly left Mr. Nunes feeling disappointed."

Rather than doing his job of indepedently overseeing the intelligence community and its relationship with the White House, Nunes was acting as the mouthpiece and shill of the Trump Administration in its efforts to undermine the FBI--efforts which then led to the firing of James Comey.  As it turned out, the ethics investigation cleared Nunes and he witdrew his recusal.  He has now taken a new and bigger step along the same lines. I do not know, but I would not be at all surprised if the "Nunes memo," like the intelligence he claimed to have discovered last March, had come from the Trump White House in the first place.

President Trump, I think, will now use the memo to argue that the investigation of the Russian connection is fundamentally and irrevocably tainted because it began as a partisan withhunt undertaken by the Clinton campaign through Steele.  Indeed, Sarah Huckabee Sanders, his press secretary, has already been saying this for some time.  I think the odds are better than 50-50 that the President will fire Robert Mueller, shut down the independent investigation, and fire Deputy Attorney General Ron Rosenstein, who is rather pointedly dragged into the Nunes memo as well.  That, I suspect, is why leading Republicans in the last week have been saying that there is no need for legislation to protect Robert Mueller: they know he'll be fired soon.  Buoyed by the tax cut, the booming stock market, and continued economic growth, the Republicans, like the President, have talked themselves into the idea that they are on the way to a new era and a great political triumph, and that only an unfair, partisan investigation stands in their way. In addition, it now develops that a great many Republican legislators, including Mitch McConnell,. have received large campaign contributions from Russia-lined interests as well.  They too may have a personal interest in shutting down the investigation of Russian influence.

Outrage will break out among the mainstream media and the Democrats if Trump fires Mueller, but the Administration won't care.  Will such outrage move large numbers of swing voters to vote Democratic next fall and give the Democrats control of at least one house of Congress? I don't know, but I'm skeptical.  The Republicans are betting that the mass of our people are sick of Washington scandals, and they may be right.  Having endured Whitewater, Monicagate, Benghazi, birtherism, the WMD controversy, and so much more, our people may just be tired of it all.  Once again, the Republicans in Washington are trying to even the score.  In 1999 some of them admitted they were impeaching Clinton as revenge for Watergate.  But Clinton was acquitted, and now they may be determined to see that Trump gets away with it too.

The President, I suspect, simply has to stop the investigation because it's bound to reveal damaging information about himself and many of those closest to him.  That is why he, like Nixon, had to begin trying to stop the investigation right away.  Nixon's attempts culminated in the Saturday Night Massacre, after which bipartisan outrage forced him to back down. Trump won't face bipartisan outrage.  In our era of all-out partisanship--the fourth great crisis of American national life--he may prevail.