Published On: Sun, Feb 25th, 2018

Democrats blast holes in Nunes memo with volley of facts, logic

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The war of the memos has reached its Waterloo. The Nunes memo was released two weeks ago. The Democratic memo has now been released as well. The second memo shows no mercy to the first, destroying it with the heavy artillery of arguments loaded with logic and fired by facts.

When the Republican memo was released, the Justice Department — a department run, of course, by Trump appointees — issued an extraordinary statement, calling it a “reckless” act. The FBI, also run by a Trump-appointed director, warned that it had “grave concerns.” At issue was not only “sources and methods,” typically the most sensitive of intelligence matters, but the integrity of the Foreign Intelligence Surveillance Act (FISA) process as well.

FISA was enacted in 1979, following the surveillance and other abuses at the CIA and the FBI that came to light in the mid-1970s. The law created a system whereby surveillance itself could be surveilled by federal courts. To protect the rights of Americans, in order to surveil a target for counterintelligence purposes, the Justice Department had to follow rigorous procedures that were subject to judicial review. The law’s provisions are complex but one of its most important is the necessity of an application to court showing “probable cause” that the target of surveillance is a ”foreign power” or the “agent of a foreign power.”

The FISA court operates in secret, so it is difficult to evaluate its performance. But in the 17 years since 9/11 — which led to various significant changes in its procedures — public controversies surrounding it have been far and few between.

The Democrats’ memo reveals that FBI investigators were able to corroborate an infamous dossier authored by Christopher Steele, and did not pay the spy for his work.

(Victoria Jones/AP)

The Nunes memo is among the most serious blows it has suffered. The Republicans alleged that the process had broken down, allowing partisan figures in the FBI to wage war on the Trump campaign by means of a leaky investigation of Carter Page, one of its associates, designed to tarnish Trump and ultimately to tie his administration in investigative knots. The object of the Nunes memo was not to hurt the FISA court but to injure the FBI and the Mueller probe, casting doubt in advance on whatever deleterious information emerges about Donald Trump.

Trump, characteristically, hailed the Nunes memo’s appearance in a raving tweet, claiming victory:

This memo totally vindicates “Trump” in probe. But the Russian Witch Hunt goes on and on. Their was no Collusion and there was no Obstruction (the word now used because, after one year of looking endlessly and finding NOTHING, collusion is dead). This is an American disgrace!

President Trump reacts on Saturday to the release of the Schiff memo.

President Trump reacts on Saturday to the release of the Schiff memo.

(Donald Trump via Twitter)

The release now of the Democratic response shows how utterly irresponsible Trump and Nunes have been. After one has read it, one understands why the White House, which controlled the timing of its release, dropped it on a Saturday afternoon with the hope that it would disappear in the crack between news cycles.

For it is a skillfully prepared document that annihilates its predecessor. To begin with, it amply demonstrates its central premise: that “FBI and DOJ officials did not ‘abuse’ the Foreign Intelligence Surveillance Act process, omit material information, or subvert this vital tool to spy on the Trump campaign.” Instead, it shows systematic “distortions and misrepresentations” by the Republicans themselves.

Among other highlights, it reveals that — contrary to Nunes’s former contention — the controversial “Steele dossier,” compiled by the British intelligence officer Christopher Steele, “did not inform the FBI’s decision to initiate its counterintelligence investigation” of Trump campaign associates in July 2016. Its adds the spectacular nugget that the Department of Justice provided the FISA court with “information obtained through multiple indepedent sources that corroborated Steele’s reporting.”


The FBI investigation centered, in part, on Trump campaign consultant Carter Page.

(Artyom Korotayev/TASS/TNS)

Nor did the FBI pay Christopher Steele for his information. Nor did the FBI use FISA to spy on either Trump or his campaign. Carter Page had ended his affiliation with the campaign months before the FBI applied for the warrant.

One could go on for pages listing all the falsehoods. But several conclusions emerge from the episode.

First, Trump and his supporters are willing to go to great lengths to try and tarnish Mueller, even to the point of a long-term sacrifice of their own credibility for the short-term gain — in this case, a period of two weeks — of news stories that put forward their false version of events.

Schiff's memo made waves across Washington — and nationwide — despite the intentionally inconspicuous timing of its release.

Schiff’s memo made waves across Washington — and nationwide — despite the intentionally inconspicuous timing of its release.


Second, that sacrifice of credibility is only partial, for there is a cult-like portion of the population that accepts without question whatever Trump and his confederates say, no matter how big or preposterous a lie.

Third, as far as arguments are concerned, the Republicans don’t hold a lot of good cards. Indeed, there is something truly amateurish in the way they crafted a document that could be so thoroughly refuted.

Fourth, the Republicans don’t care a whit about the fact that they are damaging America along the way. The material contained in the Nunes memo is almost deliberately designed to shatter public confidence in the most crucial institutions we have to protect against terrorism and espionage. Their attitude appears to be: If Donald Trump is to be saved, the institutions that guard our democracy be damned.

Finally, this episode will not be remembered as the greatest skirmish of the Trump wars, but it shows how things are likely to go in future rounds. There will be continuing clashes in which facts, logic, and truth on one side are pitted against raw power on the other. Raw power lost this fray.

As the Mueller investigation closes in, as Democratic control of the House and possibly the Senate loom on the horizon, the side with the raw power is likely to grow more desperate. There can be no assurances that even uglier methods won’t be attempted next time to keep the Trump train from careening off the tracks.

Schoenfeld, a senior adviser to the 2012 Romney presidential campaign, is the author of, among other books, “Necessary Secrets: National Security, the Media, and the Rule of Law.”

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