Nunes Memo Accidentally Confirms the Legitimacy of the FBI’s Investigation

Despite strong objections from the Justice Department, House Republicans released a four-page memo on Friday challenging the “legitimacy and legality” of the FBI’s surveillance of Carter Page, a former adviser to the Trump campaign suspected of having ties to Russian intelligence.

The memo, generated by staffers of House Intelligence Committee Chair Devin Nunes, R-Calif., confirms that the FBI sought authorization under the Foreign Intelligence Surveillance Act to intercept Page’s communications. The FBI submitted the FISA application in October 2016, after Page had left the Trump campaign, by establishing probable cause to the Foreign Intelligence Surveillance Court that Page was acting as an “agent” of Russia. The Nunes memo also reports that FISA surveillance of Page was subsequently renewed three times.

The central claim of the memo is that the FISA surveillance applications relied on a controversial dossier by former British spy Christopher Steele, whose raw intelligence reports claimed that Trump campaign officials had met with Russians and that Russian intelligence had information sufficient to blackmail Donald Trump. Steele was a Russia expert for MI6 and had provided credible information to the FBI in the past.

According to the Nunes memo, the FBI received three 90-day extensions to monitor Page’s communications under FISA authority.

The Nunes memo does not say Steele’s dossier was the only piece of information used to establish probable cause that Page was acting as a foreign agent. Indeed, when FBI agents submit a FISA application to the Foreign Intelligence Surveillance Court, they use information from multiple sources, according to current and former FBI officials. What’s more, the same information is not used over and over to extend surveillance under FISA. Instead, every 90 days, the FBI, as a matter of practice, shows evidence to the court that agents are obtaining foreign intelligence information through the surveillance that is in line with the initial FISA application.

According to the Nunes memo, the FBI received three 90-day extensions to monitor Page’s communications under FISA authority. This would have required the FBI to show Justice Department lawyers and the FISA court judge that Page’s intercepted communications included relevant foreign intelligence information. In fact, according to the memo, two Trump appointees at the Justice Department — Deputy Attorney General Rod Rosenstein and Dana Boente, who served as acting attorney general after Trump fired Sally Yates — reviewed this information and signed off on submissions to the FISA court.

What’s more, it’s highly doubtful that the FISA court judge would not have known about Steele by the time Page’s surveillance came up for renewal, as the Nunes memo suggests. BuzzFeed published Steele’s dossier in full in January 2017.

“Steele was out there. He was in the press at this time,” said Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “It’s ridiculous to believe that the judge had no idea who Steele was as this is being renewed over and over again.”

According to reports from journalists, unnamed Democrats on the committee have already begun to dispute the memo’s claim that the Steele dossier was an “essential part” of the evidentiary basis for the warrant applications.

New: Two Democratic members of House Intel tell me McCabe did not say dossier was basis of FISA warrant, disputing central claim of #NunesMemo

— Jim Sciutto (@jimsciutto) February 2, 2018

But even if the dossier was a key part of the initial investigation, it wouldn’t have helped the FBI renew its warrant on three subsequent occasions.

The memo argues that the FBI’s process was not a good-faith attempt to investigate Russian influence; rather, the memo says, it was a politically motivated operation to spy on someone affiliated with the Trump campaign.

The memo claims that Steele’s dossier is not reliable because an opposition research firm, Fusion GPS, hired Steele after receiving payments from a law firm connected to the Hillary Clinton campaign and the Democratic National Committee. Fusion GPS’s clients for its Trump research, however, were not limited to partisan Democratic Party concerns: The firm began its research into Trump at the behest of the Washington Free Beacon, a right-wing news website that initially opposed Trump’s insurgent campaign.

Nunes’s memo also alleges another funding source for Steele: the document states that he was not only paid for his work by Fusion GPS, but also by the FBI. That means the Trump opposition work was funded by partisans of both parties as well as a federal bureaucracy.

The context missing from the memo is that the FBI routinely deals in information coming from biased sources.

Even if Steele’s work was purely at the behest of the Democratic Party, however, that would not historically exclude it from being used as evidence in court. The context missing from the memo is that the FBI routinely deals in information coming from biased sources. FBI informants, who number more than 15,000 today, are often motivated by revenge, money, or idealism, among other drivers. The FBI collects relevant information, no matter the source, and then exerts extensive effort to corroborate the information — for example, by seeking a wiretap of a campaign official thought to be conspiring with a foreign government.

U.S. government officials have for years suspected that Page, an energy investor who has done business in Russia, had connections to Russian intelligence. According to the New York Times, the FBI became aware of him as early as 2013, when agents learned that he was passing documents about the energy business to a Russian intelligence agent. The FBI interviewed Page at the time, but concluded he had done so unwittingly, passing the documents to a man he thought was a businessman instead of a spy. The FBI again turned its attention to Page after he traveled to Moscow in the summer of 2016.

The Nunes memo is widely seen as an attempt to challenge the credibility of Special Counsel Robert Mueller’s investigation into ties between the Trump campaign and Russia. After reviewing the memo, but before it was released, the FBI issued a statement saying it had “grave concerns about material omissions of fact that fundamentally impacted the memo’s accuracy.”

Trump took to Twitter on Friday morning and said the FBI and Justice Department “politicized the sacred investigative process in favor of Democrats and against Republicans.” The White House later released a statement saying the memo raises “serious concerns about the integrity of decisions made at the highest levels of the Department of Justice and the FBI.”

Despite rhetoric that could help to undermine Mueller’s investigation, the Nunes memo specifically says that George Papadopoulos sparked the counterintelligence investigation that ultimately led to the resignation of National Security Adviser Michael Flynn, the firing of FBI Director James Comey, and the appointment of Mueller as special counsel. Papadopoulos, a former Trump foreign policy advisor, pleaded guilty in October to making false statements to the FBI.

Even if the controversial Steele dossier and the FISA surveillance of Page had sparked the special counsel’s inquiry, this would not be the first time that politically motivated information led to a special counsel investigation. Conservative businessman Richard Mellon Scaife gave $2 million to the American Spectator in the early 1990s to investigate President Bill Clinton’s real estate investments and sexual harassment claims against him. Information from the reporting Scaife funded led in part the appointment of Kenneth Starr to investigate Clinton.

Throughout the Nunes memo, Republicans appeal to the rhetoric of civil libertarians, who have long argued that the standards and protections of the FISA court are insufficient. Critics have pointed to the fact that the court operates in secrecy and relies on a body of hidden laws and precedents. The FISA court is also non-adversarial, as the government is typically the only party represented, although Congress passed a law in 2015 that allows the court to appoint outside counsel.

The American Civil Liberties Union, a critic of the FISA court’s lack of transparency, charged that Nunes was wrapping a political argument in claims of civil liberties abuse. “The completeness and accuracy of government representations to the FISA court are longstanding concerns,” Christopher Anders, deputy director of ACLU’s Washington Legislative Office, said in a statement. “The Nunes memo makes serious charges of FBI and Justice Department misconduct in obtaining a warrant to surveil an American citizen, but on its own, does not contain the facts needed to substantiate its charges.”

Anders added: “Rather than one side or the other cherry-picking facts, all Americans deserve to see all of the facts, including both the minority report and the underlying documents. The goal should be more transparency, not less, particularly when a congressional committee chairman makes serious charges of abuse but does not provide the facts to either prove the charges or allow Americans to make up our own minds.”

Top photo: House Intelligence Committee Chairman Devin Nunes, R-Calif., walks away after speaking to reporters after a meeting at the White House March 22, 2017, in Washington, D.C.