I had said previously that it wouldn’t amount to that much:
The memo has been made out to be such a blockbuster that it can’t be anything but a disappointment when it is finally released. https://t.co/dDfrDRHOxL
— Dana Pico (@Dana_TFSJ) February 2, 2018
Now it has been released, and yes, it is a disappointment.
I have read the widely anticipated Nunes memo, and am quite frankly unimpressed. Yes, it was wrong to issue the Foreign Intelligence Surveillance Act (FISA) surveillance against former Trump aide Carter Page, and yes, certain high-ranking officials in the Obama Administration were at the very least careless in approving the requests.
What is lacking is any direct connection with orders from President Obama, or his Attorney General, or any specific instructions from the Clinton campaign to use the so-called Steele Dossier as the basis for the FISA application. There is no indication that the Clinton campaign knew how poorly sources the Steele Dossier was, nor that they had people who should have known. The most serious thing that the Nunes Memo alleges is that Associate Deputy Attorney General Bruce Ohr maintained contact with Christopher Steele after Mr Steele was fired, and that the Department of Justice was sloppy in its paperwork for the FISA application. There is no allegation that “information potentially favorable to the target of the FISA application” was deliberately withheld from Foreign Intelligence Surveillance Court (FISC).
We are expected to infer that hostile intent was present in the incomplete FISA application. Carelessness is not evidence of hostile and conspiratorial intent, though those could exist. The only person to whom the memo specifies hostile intent is Christopher Steele, and he was not among those who had authority with regard to the FISA application. This may not be a nothingburger, but it has but one all beef patty, with no special sauce, no lettuce, no cheese, no pickles, no onions and no sesame seed bun.
Why were the Department of Justice and Federal Bureau of Investigation so upset with the release of the memo? It’s simple: the Nunes memo names names. The issuance of a FISA requires the government to provide “information potentially favorable to the target of proposed FISA investigation,” and failed to do so in several instances, as the FISA authorization had to be renewed several times. Those top officials signing for the FBI and DoJ included:
- FBI Director James Comey
- FBI Deputy Director Andrew McCabe
- Deputy Attorney General Sally Yates
- Deputy Attorney General Rod Rosenstein
- Acting Deputy Attorney General Dana Boente
We were told that publication of the memo would endanger national security. Really? Just what intelligence methods were compromised by the release? Certainly none that I could see. The only things which could have been compromised was the reputation of the officials named in it, because, at best, they didn’t do their jobs.
At worst, it was a criminal conspiracy, but the memo does not provide any evidence of that. The closest to a criminal conspiracy that I saw in the memo was this:
During this same time period, Ohr’s wife was employed by Fusion GPS to assist in the cultivation of opposition research on Trump. Ohr later provided the FBI with all of his wife’s opposition research, paid for by the DNC and Clinton campaign via Fusion GPS. The Ohrs’ relationship with Steele and Fusion GPS was inexplicably concealed from the FISC. [Section 3 (a)]
We are not told whether Mr Ohr failed to disclose that to his superiors, or whether his superiors knew it and failed to include that in the FISA applications.
The entire problem was the Steele Dossier. It was produced by Mr Steele, as campaign opponent research for the Hillary Clinton campaign. Were it not for the dossier, many claim that there’d be no Mueller investigation of the Trump campaign and possible collusion with Russia.
Mr Comey responded:
That’s it? Dishonest and misleading memo 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? DOJ & FBI must keep doing their jobs.
— James Comey (@Comey) February 2, 2018
Given that Mr Comey thrice signed FISA certifications to the FISC, when those certifications failed to include the facts that the Steel Dossier was unsubstantiated opposition research by Fusion GPS, paid for by the Clinton campaign, through the law firm Perkins Coie, I’d say that Mr Comey should just keep his mouth shut.
In the end, the Obama Administration spied on a former Trump aide, based at least in part on opposition research generated and paid for by the Clinton campaign. The problem with stretching that to criminality turns on the question of whether any or all of the named officials failed to do their duty through deliberate malice or just plain negligence. We may assume — and I certainly do — that all of the officials named were supporters of the Clinton campaign (though Mrs Clinton still blames Director Comey for her loss to Mr Trump) but that does not mean that we can also assume that they deliberately broke the law mala fides.
It is amusing, however, that their only defense to criminal intent would be individual incompetence.
Mr Comey said that release of the memo “damaged relationship with FISA court,” by which I assume he means that it damaged the relationship of the intelligence community with FISC. Really? If that relationship has been damaged, it is because the Court has been informed that the FBI and DoJ have been at the very least negligent in their duties in making FISA applications. Hopefully it will mean that the FISC will ask questions of the government when it makes FISA applications.
The nature of covert surveillance is such that surveillance targets do not get an opportunity in court to challenge the FISA warrants; if they did, the surveillance would not be secret. Thus the government has the obligation to present potentially exculpatory evidence in favor of the proposed target, and this the government did not do in the FISA applications against Carter Page. Given that it was Mr Comey who signed three of the FISA applications against Mr Page, it was he, and not Devin Nunes who damaged that relationship.
President Trump needs to clean house, at the Department of Justice and the Federal Bureau of Investigation.